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Exhibit 4.2
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated
as of February 6, 1998, between BE AEROSPACE, INC., a Delaware corporation (the
"Company"), and United States Trust Company of New York, a New York corporation
(the "Trustee").
WITNESSETH:
WHEREAS, in accordance with Section 902 of the Indenture relating to
the 9 3/4% Senior Notes due 2003 (the "Notes") of the Company dated as of March
3, 1993, as supplemented on January 5, 1996 (as supplemented, the "Indenture"),
between the Company and the Trustee, the Trustee and the Company, when
authorized by a Board Resolution, with the written consent of the Holders of a
majority in principal amount of the Outstanding Securities (the "Requisite
Consents") may amend certain terms and covenants contained in the Indenture;
WHEREAS, the Company has obtained the Requisite Consents to amend
the Indenture as set forth below;
WHEREAS, the Board has, as evidenced by a Board Resolution,
authorized the amendment of the Indenture pursuant to this Supplemental
Indenture;
WHEREAS all things necessary to make this Supplemental Indenture a
valid supplement to the Indenture according to its terms have been done;
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1.1. Certain Terms Defined in the Indenture. All capitalized
terms used herein without definition herein shall have the meanings ascribed
thereto in the Indenture.
SECTION 1.2. Amendments of Section 101. (a) Section 101 of the
Indenture is amended by deleting each of the following definitions in their
entirety:
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed
in connection with an Asset Acquisition from such Person or (b) existing at the
time such Person becomes a subsidiary of any other Person (other than any
Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a subsidiary).
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the
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Company shall be merged with or into the Company or any Restricted Subsidiary of
the Company or (b) the acquisition by the Company or any Restricted Subsidiary
of the Company of the assets of any Person which constitute all or substantially
all of the assets of such Person or any division or line of business of such
Person.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease
or other disposition to any Person other than the Company or a wholly-owned
Restricted Subsidiary of the Company, in one or a series of related
transactions, of (a) any Capital Stock of any Restricted Subsidiary of the
Company held by the Company or any Restricted Subsidiary; (b) all or
substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary of the Company; or (c) any
other properties or assets of the Company or any Restricted Subsidiary other
than in the ordinary course of business. For the purposes of this definition,
the term "Asset Sale" shall not include any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets (i) that is
governed by the provisions of Article Eight of this Indenture, (ii) to an
Unrestricted Subsidiary, if permitted under Section 1011 of this Indenture or
(iii) having a Fair Market Value of less than $10,000.
"Average Life" means, with respect to any Indebtedness, as at any
date of determination, the quotient obtained by dividing (a) the sum of the
products of (i) the number of years from such date to the date or dates of each
successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Indebtedness multiplied by (ii) the amount of
each such principal payment by (b) the sum of all such principal payments.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is or become the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 40% of the total
Voting Stock of the Company; (b) the Company consolidates with, or mergers with
or into, another Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or other property,
other than any such transaction where (i) the outstanding Voting Stock of the
Company is converted into or exchanged for (1) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee corporation or (2)
cash, securities and other property in an amount which could be paid by the
Company as a Restricted Payment under this Indenture and (ii) immediately after
such transaction no "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is the
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"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 40% of the total Voting Stock of the surviving or
transferee corporation; (c) during any consecutive two-year period, individuals
who at the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; or (d) any
final order, judgment or decree of a court of competent jurisdiction shall be
entered against the Company decreeing the dissolution or liquidation of the
Company.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and its Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding (a)
net after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (b) net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions, (c) the net income (or net loss) of
any Person (other than the Company or a Restricted Subsidiary), including
Unrestricted Subsidiaries, in which the Company or any of its Restricted
Subsidiaries has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or its Restricted
Subsidiaries in cash by such other Person during such period, (d) net income (or
net loss) of any Person combined with the Company or any of its Restricted
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (e) the net income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that net income is not at the date of
determination permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders and (f) income resulting from transfers of assets received by the
Company or any Restricted Subsidiary from an Unrestricted Subsidiary.
"Consolidated Fixed Charge Coverage Ratio" of any Person means, for
any period, the ratio of (a) the sum of Consolidated Adjusted Net Income,
Consolidated Interest Expense, Consolidated Tax Expense and Consolidated
Non-cash Charges, in each case, for such period, of such Person and its
subsidiaries on a consolidated basis, all determined in accordance with GAAP, to
(b) the sum of such Consolidated Interest Expense for such period; provided that
(i) in making such computation, the Consolidated Interest Expense of such Person
attributable to interest on any Indebtedness computed on a pro forma basis and
bearing a floating interest rate shall be computed as if the rate in effect on
the date of
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computation had been the applicable rate for the entire period, (ii) in making
such computation, the Consolidated Interest Expense of such Person attributable
to interest on any Indebtedness under a revolving credit facility computed on a
pro forma basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period, and (iii) notwithstanding clauses (i)
and (ii) above, interest on Indebtedness determined on a fluctuating basis, to
the extent such interest is covered by agreements relating to Interest Rate
Protection Obligations, shall be deemed to have accrued at the rate per annum
resulting after giving effect to the operation of such agreements. If such
Person or any of its subsidiaries directly or indirectly guarantees Indebtedness
of a third Person, the above clause shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or such subsidiary had directly
incurred or otherwise assumed such guaranteed Indebtedness.
"Consolidated Income Tax Expense" means, with respect to any Person
for any period, the provision for federal, state, local and foreign income taxes
of such Person and its Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person
for any period, without duplication, the sum of (i) the interest expense of such
Person and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP, including, without limitation, (a) any
amortization of debt discount, (b) the net cost under Interest Rate Protection
Obligations (including any amortization of discounts), (c) the interest portion
of any deferred payment obligation, (d) all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing and (e) all accrued interest, (ii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Subsidiaries during such period as determined on
a consolidated basis in accordance with GAAP and (iii) the aggregate dividends
paid or accrued on Preferred Stock of such Person or its Subsidiaries, to the
extent such Preferred Stock is owned by Persons other than such Person and its
Subsidiaries.
"Consolidated Net Worth" means, with respect to any Person at any
date, the consolidated stockholders' equity of such Person less the amount of
such stockholders' equity attributable to Redeemable Capital Stock or treasury
stock of such Person and its Subsidiaries, as determined in accordance with
GAAP.
"Consolidated Non-cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Subsidiaries reducing Consolidated Adjusted Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
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"Eligible Inventories" as of any date means the consolidated
inventories of the Company and its Restricted Subsidiaries (net of any reserve)
on the basis of the method of accounting (either last in/first out or first
in/first out) used by the Company in the preparation of its financial statements
included in the latest Form 10-K filed by the Company under the Securities Act,
as shown on a consolidated balance sheet of the Company and its Restricted
Subsidiaries, all in accordance with GAAP.
"Eligible Receivables" as of any date means the consolidated
accounts receivables (net of any reserve) of the Company and its Restricted
Subsidiaries that are not more that 60 days past their due date and that were
entered into on normal payment terms as shown on a consolidated balance sheet of
the Company and its Restricted Subsidiaries, all in accordance with GAAP.
"Fully Traded Common Stock" means Common Stock issued by any
corporation if (A) such Common Stock is listed on The New York Stock Exchange,
The American Stock Exchange or The London Stock Exchange or is included for
trading privileges in the National Market System of the National Association of
Securities Dealers Automated Quotation System; provided that such Common Stock
is freely tradeable under the Securities Act (or, in the case of The London
Stock Exchange, any applicable law, rule or regulation) upon issuance; and (B)
such Common Stock does not constitute more than 15% of the issued and
outstanding Common Stock of such corporation held by Persons other than 10%
holders of such Common Stock and Affiliates and insiders of such corporation.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase or acquisition by
such person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any other Person. In addition, the Fair
Market Value of the net assets of any Restricted Subsidiary of the Company at
the time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary shall be deemed to be an "Investment" made by the Company in such
Unrestricted Subsidiary at such time. "Investments" shall exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary of the Company),
net of (i) brokerage commissions and other fees and expenses (including fees and
expenses of legal counsel and investment banks) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale, (iii) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary)
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owning a beneficial interest in the assets subject to the Asset Sale and (iv)
appropriate amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve required in accordance with GAAP consistently
applied against any liabilities associated with such Asset Sale and retained by
the Company or any Restricted Subsidiary, as the case may be, after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness of the Company under the Bank Credit Agreement in
an aggregate principal amount at any one time outstanding not to exceed
the sum of 80% of the aggregate amount of Eligible Receivables and 50% of
the aggregate amount of Eligible Inventory, measured as of the end of the
most recent fiscal quarter preceding the time such Indebtedness is
incurred;
(ii) Indebtedness of the Company under the Securities;
(iii) Indebtedness of the Company outstanding on the date of this
Indenture (other than Indebtedness incurred pursuant to clause (i) of this
definition);
(iv) obligations of the Company pursuant to interest Rate Protection
Obligations, which obligations do not exceed the aggregate principal
amount of the Indebtedness covered by such Interest Rate Protection
Obligations;
(v) Indebtedness of the Company to any wholly owned Restricted
Subsidiaries;
(vi) Indebtedness of the Company consisting of guarantees,
indemnities or obligations in respect of purchase price adjustments in
connection with the acquisition or disposition of assets, including,
without limitation, shares of Capital Stock of Restricted Subsidiaries;
(vii) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by the
Company of any Indebtedness of the Company incurred pursuant to clauses
(ii) and (iii) of this definition, including any successive refinancings
by the Company, so long as (A) any such new Indebtedness shall be in a
principal amount that does not exceed the principal amount (or, if such
Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination)
so refinanced
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plus the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Indebtedness refinanced or the
amount of any premium reasonably determined by the Company as necessary to
accomplish such refinancing, plus the amount of expenses of the Company
incurred in connection with such refinancing, (B) in the case of any
refinancing of Pari Passu Indebtedness or Subordinated Indebtedness, such
new Indebtedness is made pari passu with or subordinate to the Securities
at least to the same extent as the Indebtedness being refinanced and (C)
such new Indebtedness has an Average Life longer than the Average Life of
the Securities and a final Stated Maturity later than the final Stated
Maturity of the Securities; and
(viii) Indebtedness in an aggregate principal amount not in excess
of $30 million at any one time outstanding, less the amount of Permitted
Subsidiary Indebtedness then outstanding pursuant to clause (vii) of the
definition thereof.
"Permitted Investments" means any of the following (i) Investments
in Cash Equivalents; (ii) Investments in the Company or wholly-owned Restricted
Subsidiaries; provided that if the Company shall make any Investment in FEEL in
excess of $1 million, FEEL shall Guarantee the Securities in compliance with
paragraph (b) and clauses (i)(A) and (ii) of paragraph (a) of Section 1017;
(iii) Investments in an amount not to exceed $15 million at any one time
outstanding; or (iv) Investments by the Company or any Restricted Subsidiary of
the Company in another Person, if as a result of such Investment (A) such other
Person becomes a Restricted Subsidiary or (B) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its assets to, the Company or a Restricted Subsidiary.
"Permitted Liens" means the following types of Liens:
(a) Liens for taxes, assessments or governmental charges or claims
either (i) not delinquent or (ii) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety
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and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(d) judgment Liens not giving rise to an Event of Default so long as
any appropriate legal proceedings which may have been duly initiated for
the review of such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(e) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Company or any of its Restricted
Subsidiaries;
(f) any interest or title of a lessor under any Capitalized Lease
Obligation or operating lease;
(g) purchase money Liens; provided, however, that (i) the related
purchase money Indebtedness shall not be secured by any property or assets
of the Company or any Restricted Subsidiary of the Company other than the
property and assets so acquired and (ii) the Lien securing such
Indebtedness shall be created (A) in the case of any Asset Acquisition,
within 270 days of the closing of such Asset Acquisition and (B) in all
other cases, in the ordinary course of business within 90 days of such
acquisition;
(h) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods;
(i) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment, or storage of such inventory or other
goods;
(j) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(k) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or assets;
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(l) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(m) Liens securing Interest Rate Protection Obligations which
Interest Rate Protection Obligations relate to Indebtedness that is
secured by Liens otherwise permitted under this Indenture; and
(n) Liens securing an aggregate of $30 million of Indebtedness
permitted to be incurred under this Indenture by the Company and its
Restricted Subsidiaries.
"Permitted Subsidiary Indebtedness" means any of the following:
(i) Indebtedness of any Restricted Subsidiary outstanding on the
date of this Indenture;
(ii) obligations of any Restricted Subsidiary pursuant to Interest
Rate Protection Obligations, which obligations do not exceed the aggregate
principal amount of the Indebtedness covered by such Interest Rate
Protection Obligations;
(iii) Indebtedness of any Restricted Subsidiary to any wholly-owned
Restricted Subsidiary of the Company or to the Company;
(iv) Indebtedness of any Restricted Subsidiary consisting of
guaranties, indemnities or obligations in respect or purchase price
adjustments in connection with the acquisition or disposition of assets,
including, without limitation, shares of Capital Stock of Restricted
Subsidiaries;
(v) Any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by any
Restricted Subsidiary of any Indebtedness of such Restricted Subsidiary
other than Indebtedness incurred pursuant to clause (vii) of this
definition, including any successive refinancings by such Restricted
Subsidiary, so long as any such new Indebtedness shall be in a principal
amount that does not exceed the principal amount (or, if such Indebtedness
being refinanced provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof,
such lesser amount as of the date of determination) so refinanced and such
new Indebtedness has an Average Life longer than the Average Life of the
Securities and final Stated Maturity later than the final Stated Maturity
of the Securities; and
(vi) Indebtedness (as defined in clauses (e) and (f) of the
definition of Indebtedness) to the Holders incurred pursuant to provisions
of this Indenture;
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(vii) Indebtedness in an amount not to exceed $30 million at any one
time outstanding, less the amount of Permitted Indebtedness then
outstanding pursuant to clause (vii) of the definition thereof; and
(viii) Guarantees of Indebtedness of the Company permitted under
Section 1017.
(b) The definition of "Unrestricted Subsidiary" located in Section
101 of the Indenture is amended in full to read as follows:
""Unrestricted Subsidiary" means (1) any Subsidiary of the Company
which at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below) and (2)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary owns any Capital Stock of, or owns, or holds any Lien on, any
property of the Company which is not a Subsidiary of the Subsidiary to be so
designated. The Board of Directors may designate any Unrestricted Subsidiary to
be a Subsidiary."
SECTION 1.3. Amendment of Section 501. Section 501 of the Indenture
is amended and restated in full to read as follows:
"SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of or premium, if any,
when due and payable, on any of the Securities; or
(2) default in the payment of an installment of interest on any of
the Securities, when due and payable, for 30 days; or
(3) default in the performance or breach of the provisions of
Article Eight of this Indenture; or
(4) the Company or any Guarantor shall fail to perform or observe
any other term, covenant or agreement contained in the Securities, any
Guarantee or this Indenture (other than a default specified in (1), (2) or
(3) above) for a period of 30 days after written notice of such failure
requiring the Company to remedy the same
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shall have been given (x) to the Company by the Trustee or (y) to the
Company and the Trustee by the holders of 25% in aggregate principal
amount of the Securities then outstanding; or
(5) any Guarantee ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under any Guarantee, or gives notice to such effect (other than
by reason of the termination of this Indenture or the release of any such
Guarantee in accordance with this Indenture) and such condition shall have
continued for a period of 30 days after written notice of such failure
requiring the Guarantor and the Company to remedy the same shall have been
given (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the holders of 25% in aggregate principal amount of the
Securities then outstanding; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect
of the Company or any Significant Subsidiary under the Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(7) the institution by the Company or any Significant Subsidiary or
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due."
SECTION 1.4. Amendment of Section 801. Section 801 of the Indenture
is amended and restated in full to read as follows:
"SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
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The Company shall not, in any transaction or series of transactions,
merge or consolidate with or into, or sell, assign, transfer, lease or otherwise
dispose of all or substantially all of its properties and assets as an entirety
to, any Person or Persons, and the Company will not permit any Restricted
Subsidiary to enter into any such transaction or series of transactions if such
transaction or series of transactions, in the aggregate, would result in a sale,
assignment, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and its Restricted Subsidiaries on a
consolidated basis to any other Person or Persons, unless at the time and after
giving effect thereto:
(1) either (A) if the transaction or transactions is a merger or
consolidation, the Company shall be the surviving Person of such merger or
consolidation, or (B) the Person formed by such consolidation or into
which the Company or such Restricted Subsidiary is merged or to which the
properties and assets of the Company or such Restricted subsidiary, as the
case may be, substantially as an entirety, are sold, assigned,
transferred, leased or otherwise disposed of (any such surviving Person or
transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities and the Indenture, and, in each case, the Indenture shall
remain in full force and effect;
(2) the Company or such Person shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel satisfactory in form
and substance to the Trustee, which, taken together, state that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transactions
have been complied with."
SECTION 1.5. Amendments to Article Ten. Article Ten of the Indenture
is amended by deleting the following sections in their entirety and inserting
"Intentionally Omitted" under each Section heading:
SECTION 1009. Provision of Financial Statements.
The Company shall file with the Commission the annual, quarterly and
other reports required by Section 13(a), 13(c) or 15(d) of the Exchange Act,
regardless of whether such Sections of the Exchange Act are applicable to the
Company, and shall provide copies of such reports to Holders and the Trustee
within 15 days of the date it is or would have been required to file such
reports with the Commission had it been subject to such Sections. The Company
shall also comply with the other provisions of TIA Section 314(a).
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SECTION 1010. Limitation on Indebtedness.
(a) The Company will not create, incur, issue, assume, guarantee or
in any manner become directly or indirectly liable for (collectively to "incur")
the payment of any Indebtedness (including any Acquired Indebtedness), other
than Permitted Indebtedness, unless (x) the Company's Consolidated Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately preceding the
incurrence of such Indebtedness, taken as one period (and after giving pro forma
effect to: (i) the incurrence of such Indebtedness and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred and the application of such
proceeds occurred at the beginning of such four-quarter period; (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company or
its Restricted Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was incurred, repaid or retired at the beginning of such
four-quarter period; and (iii) notwithstanding clause (d) of the definition of
Consolidated Adjusted Net Income, the acquisition (whether by purchase, merger
or otherwise) or disposition (whether by sale, merger or otherwise) of any
company, entity or business acquired or disposed of by the Company or its
Restricted Subsidiaries, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period), would have been at least equal to 2.0 to
1, and (y) if such Indebtedness is Subordinated Indebtedness, such Indebtedness
shall have an Average Life longer than the Average Life of the Securities and a
final Stated Maturity of principal later than the final Stated Maturity of
principal of the Securities.
(b) The Company will not permit any Restricted Subsidiary to incur
any Indebtedness (including any Acquired Indebtedness), other than Permitted
Subsidiary Indebtedness, unless (x) the Company's Consolidated Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately preceding the
incurrence of such Indebtedness, taken as one period (and after giving pro forma
effect to the matters referred to in clauses (i), (ii) and (iii) in the
parenthetical in paragraph (a) of this Section 1010), would have been at least
equal to 3.0 to 1, and (y) any Restricted Subsidiary which incurs any
Indebtedness pursuant to clause (x) of this paragraph (b) shall Guarantee the
Securities in compliance with paragraph (b) and clauses (i)(A) and (ii) of
paragraph (a) of Section 1017.
(c) The Company shall not incur any Indebtedness that is expressly
subordinated to any other Indebtedness of the Company unless such Indebtedness,
by its terms or the terms of any agreement or instrument pursuant to which such
Indebtedness is issued or outstanding, is also expressly made subordinate to the
Securities at least to the extent it is subordinated to such other Indebtedness,
except that the securities shall not be required to become designated senior
indebtedness or its equivalent due solely to the incurrence of such other
Indebtedness in accordance with this sentence.
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SECTION 1011. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, take the following actions:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Company's Capital Stock (other than
dividends or distributions payable in shares of its Capital Stock or in
options, warrants or other rights to purchase such Capital Stock, but
excluding dividends or distributions payable in Redeemable Capital Stock
or in options, warrants or other rights to purchase Redeemable Capital
Stock),
(ii) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any options, warrants or other rights to
acquire such Capital Stock,
(iii) make any principal payment on or repurchase, redeem, defease
or otherwise acquire or retire for value, prior to a scheduled principal
payment, scheduled sinking fund payment or maturity, any Subordinated
Indebtedness,
(iv) make any Investment (other than any Permitted Investment) in
any Person, or
(v) incur any guarantee of Indebtedness of any Affiliate, including
any Unrestricted Subsidiary (other than with respect to (a) guarantees of
Indebtedness of any wholly-owned Restricted Subsidiary by the Company or
(b) guarantees of Indebtedness of the Company by any Restricted
Subsidiary),
(such payments or other actions described in (but not excluded from) clauses (i)
through (v) are collectively referred to as "Restricted Payments"), unless at
the time of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, as determined by the
Board of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution), (1) no Default or Event of Default shall have
occurred and be continuing, (2) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 1010, and
(3) the aggregate amount of all Restricted Payments declared or made after the
date of this Indenture shall not exceed the sum of (A) 50% of the aggregate
cumulative Consolidated Adjusted Net Income of the Company accrued on a
cumulative basis during the period beginning on the first day after the date of
this Indenture and ending on the last day of the Company's last fiscal quarter
ending prior to the date of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Adjusted Net Income shall be a loss, minus
100% of such loss), plus (B) the aggregate net cash proceeds received after the
date of this
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Indenture by the Company from the issuance or sale (other than to any Restricted
Subsidiary) of shares of Capital Stock of the Company (other than Redeemable
Capital Stock) or warrants, options or rights to purchase such shares of Capital
Stock of the Company, plus (C) the aggregate net cash proceeds received after
the date of this Indenture by the Company from the issuance or sale (other than
to any Restricted Subsidiary) of debt securities that have been converted into
or exchanged for Capital Stock of the Company (other than Redeemable Capital
Stock) to this extent such debt securities were originally sold for cash,
together with the aggregate cash received by the Company at the time of such
conversion or exchange, plus (D) to the extent not otherwise included in the
Company's Consolidated Adjusted Net Income, the net reduction in Investments in
Unrestricted Subsidiaries resulting from the payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other transfers of
assets, in each case to the Company or a Restricted Subsidiary after the date of
this Indenture from any Unrestricted Subsidiary or from the redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as
provided in the definition of Investment), not to exceed in the case of any
Unrestricted Subsidiary the total amount of Investments (other than Permitted
Investments) in such Unrestricted Subsidiary by the Company and its Restricted
Subsidiaries, plus (E) $10 million.
(b) Notwithstanding paragraph (a) above, the Company and its
Restricted Subsidiaries may take the following actions so long as (with respect
to clauses (ii), (iii), (iv) and (v) below) no Default or Event of Default shall
have occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such declaration date such declaration complied
with the provisions of paragraph (a) above;
(ii) the purchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company, in exchange for, or
out of the net cash proceeds of, a substantially concurrent issuance and
sale (other than to a Restricted Subsidiary) of shares of Capital Stock
(other than Redeemable Capital Stock) of the Company;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness (other than
Redeemable Capital Stock) in exchange for or out of the net cash proceeds
of a substantially concurrent issuance and sale (other than to a
Restricted Subsidiary) of shares of Capital Stock (other than Redeemable
Capital Stock) of the Company;
(iv) the purchase, redemption or other acquisition or retirement for
value of Subordinated Indebtedness (other than Redeemable Capital Stock or
Permitted Indebtedness incurred pursuant to clause (vii) of the definition
thereof) in exchange for, or out of the net cash proceeds of a
substantially concurrent incurrence (other
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than to a Restricted Subsidiary) of, Indebtedness of the Company so long
as (A) the principal amount of such new Indebtedness does not exceed the
principal amount (or, if such Indebtedness being refinanced provides for
an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration thereof, such lesser amount as of the
date of determination) of the Indebtedness being so purchased, redeemed,
acquired or retired, (B) such new Indebtedness is subordinated to the
Securities to the same extent as such Subordinated Indebtedness so
purchased, redeemed, acquired or retired and (C) such new Indebtedness has
an Average Life longer than the Average Life of the Securities and a final
Stated Maturity of principal later than the final Stated Maturity of
principal of the Securities; and
(v) the purchase, redemption or other acquisition or retirement for
value of shares of Common Stock of the Company issued pursuant to
non-qualified options granted under stock option plans of the Company in
order to pay withholding taxes due as a result of income recognized upon
the exercise of such options; provided that (1) the Company is required,
by the terms of such plans, to effect such purchase, redemption or other
acquisition or retirement for value of such shares and (2) the aggregate
consideration paid by the Company for such shares so purchased, redeemed
or otherwise acquired or retired for value does not exceed $2 million
during any fiscal year of the Company.
The actions described in clauses (i), (ii), (iii) and (v) of this paragraph (b)
shall be Restricted Payments that shall be permitted to be taken in accordance
with this paragraph (b) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (3) of paragraph (a) (provided
that any dividend paid pursuant to clause (i) of this paragraph (b) shall reduce
the amount that would otherwise be available under clause (3) of paragraph (a)
when declared, but not also when subsequently paid pursuant to such clause (i))
and the actions described in clause (iv) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in accordance with this
paragraph (b) and shall not reduce the amount that would otherwise be available
for Restricted Payments under clause (3) of paragraph (a).
(c) In computing Consolidated Adjusted Net Income of the Company
under clause (3)(A) of paragraph (a) above, (1) the Company shall use audited
financial statements for the portions of the relevant period for which audited
financial statements are available on the date of determination and unaudited
financial statements and other current financial data based on the books and
records of the Company for the remaining portion of such period and (2) the
Company shall be permitted to rely in good faith on the financial statements and
other financial data derived from the books and records of the Company that are
available on the date of determination. If the Company makes a Restricted
Payment which, at the time of the making of such Restricted Payment would in the
good faith determination of the Company be permitted under the requirements of
this Indenture, such Restricted Payment shall be deemed
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to have been made in compliance with this Indenture notwithstanding any
subsequent adjustments made in good faith to the Company's financial statements
affecting Consolidated Adjusted Net Income of the Company for any period.
SECTION 1012. Limitation on Issuances and Sales of Restricted
Subsidiary Stock.
The Company (i) will not permit any Restricted Subsidiary to issue
any Capital Stock (other than to the Company or a wholly-owned Restricted
Subsidiary) and (ii) will not permit any Person (other than the Company or a
wholly-owned Restricted Subsidiary) to own any Capital Stock of any Restricted
Subsidiary; provided, however, that this covenant shall not prohibit (1) the
issuance and sale of all, but not less than all, of the issued and outstanding
Capital stock of any Restricted Subsidiary owned by the Company or any of its
Restricted Subsidiaries in compliance with the other provisions of this
Indenture, or (2) the ownership by directors of director's qualifying shares or
the ownership by foreign nationals of Capital Stock of any Restricted
Subsidiary, to the extent mandated by applicable law.
SECTION 1013. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into or suffer to exist any transaction with,
or for the benefit of, any Affiliate of the Company or any beneficial owner of
5% or more of any class of the Company's Capital Stock at any time outstanding
("Interested Persons"), unless (i) such transaction is among the Company and
wholly-owned Restricted Subsidiaries or (ii) (A) such transaction is on terms
that are no less favorable to the Company, or such Restricted Subsidiary, as the
case may be, than those which could have been obtained in an arm's length
transaction with third parties who are not Interested Persons and (B) such
transaction has been approved by the Board of Directors (including a majority of
the Disinterested Directors); provided, however, that this covenant will not
restrict (1) the Company from paying reasonable and customary regular
compensation and fees to directors of the Company or any Restricted Subsidiary
who are not employees of the Company or any Restricted Subsidiary and (2) the
performance of the Company's obligations under the AET Contract.
SECTION 1014. Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien of
any kind on or with respect to any of its property or assets, whether owned at
the date of this Indenture or thereafter acquired, or any income, profits or
proceeds therefrom, or assign or otherwise convey any right to receive income
thereon, unless (x) in the case of any Lien securing Subordinated Indebtedness,
the Securities are secured by a Lien on such property, assets or proceeds that
is senior in priority to such Lien and (y) in the case of any other Lien, the
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Securities are equally and ratably secured, except for (a) Liens existing as of
the Closing Date; (b) Liens securing the Securities; (c) Liens in favor of the
Company; (d) Liens securing Indebtedness of the Company or any Restricted
Subsidiary having a principal amount not in excess of (A) the sum of 80% of
Eligible Receivables and 50% of Eligible Inventory, measured as of the end of
the most recent fiscal quarter preceding the incurrence of such Lien less (B)
the amount of Indebtedness secured by Liens incurred pursuant to clause (n) of
the definition of Permitted Liens; provided that, to the extent such Liens
secure Indebtedness of any Restricted Subsidiary (i) such Restricted Subsidiary
shall Guarantee the Securities in compliance with the provisions of paragraph
(b) and clauses (i)(A) and (ii) of paragraph (a) of Section 1017 and (ii) such
Restricted Subsidiary's Guarantee of the Securities shall be equally and ratably
secured with the Indebtedness secured by such Lien; and (e) Permitted Liens.
SECTION 1015. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to purchase all of the outstanding Securities (a
"Change of Control Offer"), and shall purchase, on a business day (the "Change
of Control Purchase Date") not more than 70 nor less than 60 days following the
Change of Control Date, all of the then outstanding Securities validly tendered
pursuant to such Change in Control Offer, at a purchase price (the "Change of
Control Purchase Price") equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the Change of Control Purchase Date. The
Change of Control offer is required to remain open for at least 20 Business Days
and until the close of business on the Change of Control Purchase Date.
(b) In order to effect such Change of Control Offer, the Company
shall, not later than the 30th day after the Change of Control, mail to each
Holder notice of the Change of Control Offer in the manner provided in Section
106, which notice shall govern the terms of the Change of Control Offer and
shall state:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to repurchase such Holder's Securities at
the Change of Control Purchase Price.
(2) the circumstances and relevant facts regarding such Change of
Control (including but not limited to information with respect to pro
forma historical income, cash flow and capitalization after giving effect
to such Change of Control);
(3) the Change of Control Purchase Date; and
(4) the instructions a Holder must follow in order to have its
Securities repurchased in accordance with paragraph (c) of this Section.
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(c) Holders electing to have Securities purchased will be required
to surrender such Securities to the Company at the address specified in the
notice at least five Business Days prior to the Change of Control Purchase Date.
Holders will be entitled to withdraw their election if the Company receives, not
later than three Business Days prior to the Change of Control Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities delivered for purchase by the
Holder as to which his election is to be withdrawn and a statement that such
Holder is withdrawing his election to have such Securities purchased. Holders
whose Securities are purchased only in part will be issued new Securities equal
in principal amount of the unpurchased portion of the Securities surrendered.
(d) The Company will comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable, in the event that a Change of Control occurs and
the Company is required to purchase Securities as described above.
SECTION 1016. Limitation on Disposition of Proceeds of Asset Sales.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, engage in any Asset Sale unless (i) such Asset Sale is for not
less than the Fair Market Value of the assets sold (as determined by the Board
of Directors of the Company, whose determination shall be conclusive and
evidenced by a Board Resolution) and (ii) the consideration received by the
Company or the relevant Restricted Subsidiary in respect of such Asset Sale
consists of at least 75% cash or Cash Equivalents; provided that the Company and
its Restricted Subsidiaries may engage in Asset Sales for consideration not in
the form of cash or Cash Equivalents in amounts in excess of that permitted in
this clause (ii), so long as (x) such excess consideration is in the form of
Fully Traded Common Stock, (y) the aggregate Fair Market Value of such Fully
Traded Common Stock received by the Company and its Restricted Subsidiaries
(measured as of the date of receipt) from all Asset Sales in reliance on this
proviso since the date of this Indenture that has not been converted into cash
or Cash Equivalents does not exceed $10 million and (z) any Fully Traded Common
stock that is converted into cash or Cash Equivalents shall be applied as
provided in paragraphs (b) and (c) of this Section 1016.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company may use the Net Cash Proceeds thereof, within 12 months after
such Asset Sale, to (i) repay or prepay any then outstanding senior Indebtedness
of the Company or Indebtedness of any Restricted Subsidiary or (ii) invest (or
enter into a legally binding agreement to invest) in properties and assets to
replace the properties and assets that were the subject of the Asset Sale or in
properties and assets that will be used in businesses of the Company or its
Restricted Subsidiaries, as the case may be, existing on the Closing Date or in
businesses reasonably related thereto. If any such legally binding agreement to
invest such
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Net Cash Proceeds is terminated, then the Company may, within 90 days of such
termination or within 12 months of such Asset Sale, whichever is later, invest
such Net Cash Proceeds as provided in clauses (i) or (ii) (without regard to the
parenthetical contained in such clause (ii)) above. The amount of such Net Cash
Proceeds not so used as set forth above in this paragraph (b) constitutes
"Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10
million, the Company shall, within 15 Business Days, make an offer to purchase
(an "Excess Proceeds Offer") from all holders of Securities, on a pro rata
basis, in accordance with the procedures set forth below, the maximum principal
amount (expressed as a multiple of $1,000) of Securities that may be purchased
with the Excess Proceeds. The offer price as to each Security shall be payable
in cash in an amount equal to 100% of the principal amount of such Security plus
accrued and unpaid interest, if any, to the date such Excess Proceeds Offer is
consummated. To the extent that the aggregate principal amount of Securities
tendered pursuant to an Excess Proceeds Offer is less than the Excess Proceeds,
the Company may use such deficiency for general corporate purposes. If the
aggregate principal amount of Securities validly tendered and not withdrawn by
holders thereof exceeds the Excess Proceeds, Securities to be purchased will be
selected on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset to zero.
SECTION 1017. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary to
guarantee the payment of any Indebtedness of the Company or any Indebtedness of
any other Restricted Subsidiary unless (i) (A) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for an unsubordinated Guarantee of payment of the Securities by such
Restricted Subsidiary and (B) with respect to any such Guarantee of Subordinated
Indebtedness, any such Guarantee of such Restricted Subsidiary with respect to
such Subordinated Indebtedness shall be subordinated to such Restricted
Subsidiary's Guarantee with respect to the Securities at least to the same
extent as such Subordinated Indebtedness is subordinated to the Securities; (ii)
such Restricted Subsidiary waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee; (iii) such Restricted Subsidiary shall appoint CT Corporation in New
York City as its agent for the service of process; and (iv) such Restricted
Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect that
(A) such appointment of CT Corporation is valid, (B) such Guarantee of the
Securities has been duly executed and authorized and (C) such Guarantee of the
Securities constitutes a valid, binding and enforceable obligation of such
Restricted Subsidiary, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws (including, without limitation, all
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laws relating to fraudulent transfers) and except insofar as enforcement thereof
is subject to general principles of equity; provided that this paragraph (a)
shall not be applicable to any Guarantee of any Restricted Subsidiary that (x)
existed at the time such Person became a Restricted Subsidiary of the Company
and (y) was not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary of the Company.
(b) Notwithstanding the foregoing and the other provisions of this
Indenture, any Guarantee by a Restricted Subsidiary of the Securities shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release or
discharge of the Guarantee which resulted in the creation of such Guarantee,
except a discharge or release by or as a result of payment under such Guarantee.
SECTION 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock or any other
interest or participation in, or measured by, its profits, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary of the
Company, (c) make loans or advances to the Company or any other Restricted
Subsidiary of the Company, (d) transfer any of its properties or assets to the
Company or any other Restricted Subsidiary of the Company or (e) guarantee any
Indebtedness of the Company or any other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) customary non-assignment provisions of any lease governing
a leasehold interest of the Company or any Restricted Subsidiary of the Company,
(iii) any agreement or other instrument of a Person acquired by the Company or
any Restricted Subsidiary of the Company in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person, so
acquired, (iv) any agreement in existence on the Closing Date (to the extent of
any encumbrances or restrictions in existence thereunder on the Closing Date)
and (v) any agreement providing for the incurrence of Indebtedness of Restricted
Subsidiaries pursuant to either clause (x) of paragraph (b) of Section 1010 or
clause (vii) of the definition of Permitted Subsidiary Indebtedness; provided
that any Restricted Subsidiary (including, without limitation, FEEL) that
becomes subject to any such encumbrances or restrictions pursuant to this clause
(v) shall Guarantee the Securities in compliance with the provisions of
paragraph (b) and clauses (i) and (ii) of paragraph (a) of Section 1017.
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SECTION 1.6 Section 1020. A new Section 1020 entitled "Waivers" will
be added to the Indenture reading in its entirety as follows:
"SECTION 1020. Waivers. The application of the provisions of the
Indenture are hereby waived to the extent that such provisions might otherwise
interfere with the ability of the Company to enter into agreements contemplated
by, and to consummate the offer and sale of one or more new issues of senior
subordinated debt securities in a public or private offering."
SECTION 2. Effectiveness. This Supplemental Indenture shall become
effective in accordance herewith upon its execution but shall become operative
and shall supersede the Indenture to the extent provided herein only if, and on
the date (the "Operative Date") that, the Company consummates the purchase of
Securities pursuant to and in accordance with the terms of the Offer to Purchase
and Consent Solicitation Statement of the Company, dated January 28, 1998. From
and after such date, the Indenture shall apply only to the extent not amended
and superseded hereby. The Company shall notify the trustee of the Operative
Date promptly after such date. Any failure of the Company to give such notice,
or any defect therein, shall not, however, in any way impair or affect (a) the
validity of this Supplemental Indenture or (b) this Supplemental Indenture
becoming operative pursuant to this Section 2.
SECTION 3. Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 4. Counterparts. This Supplemental Indenture may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 5. Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 6. Ratification. Except as expressly amended hereby, each
provision of the Indenture shall remain in full force and effect and, as amended
hereby, the Indenture is in all respects agreed to, ratified and confirmed by
each of the Company and the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
BE AEROSPACE, INC.
By:______________________________________
Title:
Attest:___________________
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By:______________________________________
Title:
Attest:___________________
Title:
