DELAWARE
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06-1209796
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(State of Incorporation)
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(I.R.S. Employer Identification No.)
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Page
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Part I
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Financial Information
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Item 1.
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Condensed Consolidated Financial Statements (Unaudited)
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3
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4
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5
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6
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Item 2.
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13
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Item 3.
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21
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Item 4.
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21
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Part II
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Other Information | |||
Item 6.
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22
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23
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March 31,
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December 31,
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|||||||
2013
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2012
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|||||||
ASSETS
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Current assets:
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||||||||
Cash and cash equivalents
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$ | 531.5 | $ | 513.7 | ||||
Accounts receivable – trade, less allowance for doubtful
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||||||||
accounts ($10.5 at March 31, 2013 and $12.1 at December 31, 2012)
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482.7 | 401.7 | ||||||
Inventories
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1,808.5 | 1,752.9 | ||||||
Deferred income taxes
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36.3 | 42.4 | ||||||
Other current assets
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48.7 | 55.9 | ||||||
Total current assets
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2,907.7 | 2,766.6 | ||||||
Property and equipment, net of accumulated depreciation
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||||||||
($264.3 at March 31, 2013 and $255.1 at December 31, 2012)
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316.7 | 302.9 | ||||||
Goodwill
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1,479.8 | 1,484.2 | ||||||
Identifiable intangible assets
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471.2 | 484.5 | ||||||
Other assets
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70.7 | 68.2 | ||||||
$ | 5,246.1 | $ | 5,106.4 | |||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
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||||||||
Current liabilities:
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||||||||
Accounts payable
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$ | 351.1 | $ | 286.2 | ||||
Accrued liabilities
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480.0 | 474.2 | ||||||
Current maturities of long-term debt
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0.1 | 0.3 | ||||||
Total current liabilities
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831.2 | 760.7 | ||||||
Long-term debt
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1,960.0 | 1,960.2 | ||||||
Deferred income taxes
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145.2 | 144.1 | ||||||
Other non-current liabilities
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72.1 | 62.5 | ||||||
Commitments, contingencies and off-balance sheet
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||||||||
arrangements (Note 8)
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||||||||
Stockholders’ equity:
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||||||||
Preferred stock, $0.01 par value; 1.0 million shares
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||||||||
authorized; no shares outstanding
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-- | -- | ||||||
Common stock, $0.01 par value; 200.0 million shares
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authorized; 105.3 million shares issued as of March 31, 2013
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and 105.4 million shares issued as of December 31, 2012
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1.1 | 1.1 | ||||||
Additional paid-in capital
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1,659.7 | 1,652.2 | ||||||
Retained earnings
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647.6 | 557.7 | ||||||
Accumulated other comprehensive loss
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(70.8 | ) | (32.1 | ) | ||||
Total stockholders’ equity
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2,237.6 | 2,178.9 | ||||||
$ | 5,246.1 | $ | 5,106.4 |
THREE MONTHS ENDED
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||||||||
March 31,
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March 31,
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|||||||
2013
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2012
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|||||||
Revenues
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$ | 842.2 | $ | 747.3 | ||||
Cost of sales
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523.1 | 463.8 | ||||||
Selling, general and administrative
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112.2 | 107.3 | ||||||
Research, development and engineering
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53.3 | 46.4 | ||||||
Operating earnings
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153.6 | 129.8 | ||||||
Operating earnings, as percentage
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||||||||
of revenues
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18.2 | % | 17.4 | % | ||||
Interest expense
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30.6 | 28.4 | ||||||
Earnings before income taxes
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123.0 | 101.4 | ||||||
Income taxes
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33.1 | 32.6 | ||||||
Net earnings
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89.9 | 68.8 | ||||||
Other comprehensive income:
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Foreign currency translation
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adjustment and other
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(38.7 | ) | 15.3 | |||||
Comprehensive income
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$ | 51.2 | $ | 84.1 | ||||
Net earnings per common share:
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Basic
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$ | 0.87 | $ | 0.67 | ||||
Diluted
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$ | 0.87 | $ | 0.67 | ||||
Weighted average common shares:
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||||||||
Basic
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103.1 | 102.0 | ||||||
Diluted
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103.7 | 102.5 |
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THREE MONTHS ENDED
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March 31,
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March 31,
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|||||||
2013
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2012
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|||||||
CASH FLOWS FROM OPERATING ACTIVITIES:
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Net earnings
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$ | 89.9 | $ | 68.8 | ||||
Adjustments to reconcile net earnings to net cash flows provided
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by operating activities, net of effects from acquisitions:
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Depreciation and amortization
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20.4 | 17.1 | ||||||
Deferred income taxes
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8.4 | 24.3 | ||||||
Non-cash compensation
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6.0 | 6.3 | ||||||
Provision for doubtful accounts
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0.5 | 1.1 | ||||||
Loss on disposal of property and equipment
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0.7 | -- | ||||||
Tax benefits realized from prior exercises of employee stock
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options and restricted stock
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(1.9 | ) | (1.5 | ) | ||||
Changes in operating assets and liabilities:
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Accounts receivable
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(88.1 | ) | (65.7 | ) | ||||
Inventories
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(69.0 | ) | (66.7 | ) | ||||
Other current and non-current assets
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3.4 | (9.8 | ) | |||||
Accounts payable and accrued liabilities
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88.9 | 73.8 | ||||||
Net cash provided by operating activities
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59.2 | 47.7 | ||||||
CASH FLOWS FROM INVESTING ACTIVITIES:
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Capital expenditures
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(37.2 | ) | (23.3 | ) | ||||
Acquisitions, net of cash acquired
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- | (402.5 | ) | |||||
Net cash used in investing activities
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(37.2 | ) | (425.8 | ) | ||||
CASH FLOWS FROM FINANCING ACTIVITIES:
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Proceeds from common stock issued
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-- | 0.1 | ||||||
Purchase of treasury stock
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(0.1 | ) | (0.1 | ) | ||||
Tax benefits realized from prior exercises of employee stock
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options and restricted stock
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1.9 | 1.5 | ||||||
Borrowings on line of credit
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-- | 215.0 | ||||||
Repayments on line of credit
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-- | (215.0 | ) | |||||
Proceeds from long-term debt
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-- | 500.0 | ||||||
Principal payments on long-term debt
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(0.1 | ) | (0.1 | ) | ||||
Debt origination costs
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-- | (9.7 | ) | |||||
Net cash provided by financing activities
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1.7 | 491.7 | ||||||
Effect of foreign exchange rate changes on cash and cash equivalents
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(5.9 | ) | 2.7 | |||||
Net increase in cash and cash equivalents
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17.8 | 116.3 | ||||||
Cash and cash equivalents, beginning of period
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513.7 | 303.5 | ||||||
Cash and cash equivalents, end of period
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$ | 531.5 | $ | 419.8 | ||||
Supplemental disclosures of cash flow information:
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Cash paid during period for:
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Interest
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$ | 0.9 | $ | 11.9 | ||||
Income taxes
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19.7 | 11.5 | ||||||
Supplemental schedule of noncash investing activities:
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Accrued property additions
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$ | 7.5 | $ | 2.5 |
Accounts receivable-trade
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$ | 44.1 | ||
Inventories
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95.6 | |||
Other current and non-current assets
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16.7 | |||
Property and equipment
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4.4 | |||
Goodwill
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462.9 | |||
Identified intangibles
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114.3 | |||
Accounts payable
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(20.4 | ) | ||
Other current and non-current liabilities
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(67.9 | ) | ||
Total purchase price
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$ | 649.7 |
March 31, 2013
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December 31, 2012
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Purchased materials and component parts
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$ | 195.5 | $ | 186.3 | ||||
Work-in-process
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398.8 | 371.8 | ||||||
Finished goods
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1,214.2 | 1,194.8 | ||||||
$ | 1,808.5 | $ | 1,752.9 |
March 31, 2013
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|||||||||||||||
Useful
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Net
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||||||||||||||
Life
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Original
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Accumulated
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Book
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||||||||||||
(Years)
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Cost
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Amortization
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Value
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Customer contracts and relationships
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8-30 | $ | 408.4 | $ | 68.9 | $ | 339.5 | ||||||||
Acquired technologies
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9-34 | 126.9 | 51.2 | 75.7 | |||||||||||
Replacement parts annuity and product approvals
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16-22 | 28.1 | 25.7 | 2.4 | |||||||||||
Technical qualifications, plans and drawings
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15-22 | 26.8 | 22.9 | 3.9 | |||||||||||
Trademarks and patents
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2-20 | 27.2 | 19.8 | 7.4 | |||||||||||
Covenants not to compete
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3-5 | 3.3 | 1.0 | 2.3 | |||||||||||
Trade names
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Indefinite
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40.0 | - | 40.0 | |||||||||||
$ | 660.7 | $ | 189.5 | $ | 471.2 |
THREE MONTHS ENDED
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||||||||
March 31,
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March 31,
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|||||||
2013
|
2012
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|||||||
Revenues
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Commercial aircraft
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$ | 420.0 | $ | 374.7 | ||||
Consumables management
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326.7 | 286.8 | ||||||
Business jet
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95.5 | 85.8 | ||||||
$ | 842.2 | $ | 747.3 | |||||
Operating earnings (1)
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Commercial aircraft
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$ | 74.2 | $ | 65.5 | ||||
Consumables management
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64.8 | 51.8 | ||||||
Business jet
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14.6 | 12.5 | ||||||
153.6 | 129.8 | |||||||
Interest expense
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30.6 | 28.4 | ||||||
Earnings before income taxes
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$ | 123.0 | $ | 101.4 |
(1) |
Operating earnings include an allocation of corporate IT costs, employee benefits and general and administrative costs based on the proportion of each segment’s systems users, number of employees and sales, respectively.
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THREE MONTHS ENDED
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March 31,
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March 31,
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|||||||
2013
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2012
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Capital expenditures(2)
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Commercial aircraft
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$ | 24.0 | $ | 15.7 | ||||
Consumables management
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9.7 | 4.9 | ||||||
Business jet
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3.5 | 2.7 | ||||||
$ | 37.2 | $ | 23.3 |
(2) |
Corporate capital expenditures have been allocated to the above segments in a manner consistent with our corporate expense allocations. Prior year amounts have been restated to reflect this revised allocation methodology.
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March 31,
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December 31,
|
|||||||
2013
|
2012
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Goodwill
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Commercial aircraft
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$ | 384.8 | $ | 388.4 | ||||
Consumables management
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1,004.9 | 1,005.8 | ||||||
Business jet
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90.1 | 90.0 | ||||||
$ | 1,479.8 | $ | 1,484.2 |
March 31,
|
December 31,
|
|||||||
2013
|
2012
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|||||||
Total assets (3)
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Commercial aircraft
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$ | 1,769.9 | $ | 1,719.1 | ||||
Consumables management
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3,064.3 | 3,006.7 | ||||||
Business jet
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411.9 | 380.6 | ||||||
$ | 5,246.1 | $ | 5,106.4 |
(3) |
Corporate assets (including cash and cash equivalents) of $633.9 and $599.4 at March 31, 2013 and December 31, 2012, respectively, have been allocated to the above segments in a manner consistent with our corporate expense allocations.
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THREE MONTHS ENDED
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||||||||
March 31,
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March 31,
|
|||||||
2013
|
2012
|
|||||||
Net earnings
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$ | 89.9 | $ | 68.8 | ||||
Basic weighted average common shares
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103.1 | 102.0 | ||||||
Effect of dilutive stock options and
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employee stock purchase plan shares
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0.1 | 0.1 | ||||||
Effect of restricted shares issued
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0.5 | 0.4 | ||||||
Diluted weighted average common shares
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103.7 | 102.5 | ||||||
Basic net earnings per share
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$ | 0.87 | $ | 0.67 | ||||
Diluted net earnings per share
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$ | 0.87 | $ | 0.67 |
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
(In Millions, Except Per Share Data)
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|
•
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a broad line of aerospace fasteners and other consumables, consisting of over one million Stock Keeping Units primarily serving the commercial aerospace and business jet industries;
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•
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commercial aircraft seats, including an extensive line of super first class, first class, business class, tourist class and regional aircraft seats;
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•
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a full line of aircraft food and beverage preparation and storage equipment, including coffee and espresso makers, water boilers, beverage containers, refrigerators, freezers, chillers and a line of ovens that includes microwave, high efficiency convection and steam ovens;
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•
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modular lavatory systems, wastewater management systems and galley systems;
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•
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both chemical and gaseous aircraft oxygen storage, distribution and delivery systems, protective breathing equipment and a broad range of lighting products; and
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|
•
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business jet and general aviation interior products, including an extensive line of executive aircraft seats, direct and indirect overhead lighting systems, passenger and crew oxygen systems, air valve systems and high-end furniture and cabinetry.
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THREE MONTHS ENDED
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||||||||||||||||
March 31, 2013
|
March 31, 2012
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Revenues
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% of
Revenues
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Revenues
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% of
Revenues
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|||||||||||||
Commercial aircraft
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$ | 420.0 | 49.9 | % | $ | 374.7 | 50.1 | % | ||||||||
Consumables management
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326.7 | 38.8 | % | 286.8 | 38.4 | % | ||||||||||
Business jet
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95.5 | 11.3 | % | 85.8 | 11.5 | % | ||||||||||
Total revenues
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$ | 842.2 | 100.0 | % | $ | 747.3 | 100.0 | % |
THREE MONTHS ENDED
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||||||||||||||||
March 31, 2013
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March 31, 2012
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|||||||||||||||
% of
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% of
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|||||||||||||||
Revenues
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Revenues
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Revenues
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Revenues
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|||||||||||||
United States
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$ | 397.8 | 47.2 | % | $ | 377.8 | 50.6 | % | ||||||||
Europe
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208.1 | 24.7 | % | 196.2 | 26.3 | % | ||||||||||
Asia, Pacific Rim,
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||||||||||||||||
Middle East and Other
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236.3 | 28.1 | % | 173.3 | 23.1 | % | ||||||||||
Total revenues
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$ | 842.2 | 100.0 | % | $ | 747.3 | 100.0 | % |
THREE MONTHS ENDED
|
||||||||
March 31, 2013
|
March 31, 2012
|
|||||||
Domestic
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$ | 586.2 | $ | 540.9 | ||||
Foreign
|
256.0 | 206.4 | ||||||
Total revenues
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$ | 842.2 | $ | 747.3 |
REVENUES
|
||||||||||||
Three Months Ended March 31,
|
||||||||||||
Percent
|
||||||||||||
2013
|
2012
|
Change
|
||||||||||
Commercial aircraft
|
$ | 420.0 | $ | 374.7 | 12.1 | % | ||||||
Consumables management
|
326.7 | 286.8 | 13.9 | % | ||||||||
Business jet
|
95.5 | 85.8 | 11.3 | % | ||||||||
Total revenues
|
$ | 842.2 | $ | 747.3 | 12.7 | % |
OPERATING EARNINGS
|
||||||||||||
Three Months Ended March 31,
|
||||||||||||
Percent
|
||||||||||||
2013
|
2012
|
Change
|
||||||||||
Commercial aircraft
|
$ | 74.2 | $ | 65.5 | 13.3 | % | ||||||
Consumables management
|
64.8 | 51.8 | 25.1 | % | ||||||||
Business jet
|
14.6 | 12.5 | 16.8 | % | ||||||||
Total operating earnings
|
$ | 153.6 | $ | 129.8 | 18.3 | % |
Contractual Obligations
|
2013
|
2014
|
2015
|
2016
|
2017
|
Thereafter
|
Total
|
|||||||||||||||||||||
Long-term debt and other non-current liabilities (1)
|
$ | 0.1 | $ | 3.4 | $ | 2.2 | $ | 2.3 | $ | 2.7 | $ | 1,983.7 | $ | 1,994.4 | ||||||||||||||
Operating leases
|
32.3 | 38.6 | 36.1 | 32.6 | 29.7 | 149.8 | 319.1 | |||||||||||||||||||||
Purchase obligations (2)
|
3.1 | 2.9 | -- | -- | -- | -- | 6.0 | |||||||||||||||||||||
Future interest payments on outstanding debt (3)
|
115.7 | 116.5 | 116.5 | 116.5 | 116.5 | 444.8 | 1,026.5 | |||||||||||||||||||||
Total
|
$ | 151.2 | $ | 161.4 | $ | 154.8 | $ | 151.4 | $ | 148.9 | $ | 2,578.3 | $ | 3,346.0 | ||||||||||||||
Commercial Commitments
|
||||||||||||||||||||||||||||
Letters of credit
|
$ | 10.3 | -- | -- | -- | -- | -- | $ | 10.3 |
(1)
|
Our liability for unrecognized tax benefits of $37.8 at March 31, 2013 has been omitted from the above table because we cannot determine with certainty when this liability will be settled. It is reasonably possible that the amount of liability for unrecognized tax benefits will change in the next twelve months; however, we do not expect the change to have a significant impact on our consolidated financial statements.
|
(2)
|
Occasionally, we enter into purchase commitments for production materials and other items. We also enter into unconditional purchase obligations with various vendors and suppliers of goods and services in the normal course of operations through purchase orders, other documentation or with an invoice. Such obligations are generally outstanding for periods less than a year and are settled by cash payments upon delivery of goods and services and are not reflected as purchase obligations in this table.
|
(3)
|
Interest payments include interest payments due on the 5.25% Notes and the 6.875% Notes based on the stated rates of 5.25% and 6.875%, respectively. To the extent we incur interest on the Revolving Credit Facility, interest payments would fluctuate based on LIBOR or prime rate pursuant to the terms of the Revolving Credit Facility.
|
Exhibit 10 (i) – Material Contracts
|
|||
10.1 |
Second Amended and Restated Credit Agreement, dated as of August 3, 2012, between the Registrant, as Borrower, and JPMorgan Chase Bank, N.A., as Administrative Agent, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Goldman Sachs Bank USA, Royal Bank of Canada, SunTrust Bank, UBS Securities LLC and Wells Fargo Securities, LLC, as Syndication Agents and Morgan Stanley MUFG Loan Partners, LLC, The Royal Bank of Scotland plc and TD Bank, N.A., as Documentation Agents (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, filed with the SEC on November 1, 2012).
|
||
Exhibit 10 (iii) – Management Contracts and Executive Compensation Plans, Contracts and Arrangements
|
|||
10.2 | Form of First Amendment to Amended and Restated Employment Agreement, dated as of November 30, 2012 for Werner Lieberherr. | ||
Exhibit 31 - Rule 13a-14(a)/15d-14(a) Certifications
|
|||
31.1 |
Certification of Chief Executive Officer
|
||
31.2 | Certification of Chief Financial Officer | ||
Exhibit 32 - Section 1350 Certifications
|
|||
32.1 |
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350
|
||
32.2 | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350 | ||
Exhibit 101 – Interactive Data Files | |||
101.INS | XBRL Instance Document | ||
101.SCH | XBRL Taxonomy Extension Schema Document | ||
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document | ||
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | ||
101.LAB | XBRL Taxonomy Extension Label Linkbase Document | ||
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document |
B/E AEROSPACE, INC.
|
||
Date: April 30, 2013
|
By:
|
/s/ Amin J. Khoury
|
Amin J. Khoury
|
||
Chairman and
|
||
Chief Executive Officer
|
||
Date: April 30, 2013
|
By:
|
/s/ Thomas P. McCaffrey
|
Thomas P. McCaffrey
|
||
Senior Vice President and
|
||
Chief Financial Officer
|
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of August 3, 2012
among
B/E AEROSPACE, INC.,
CERTAIN LENDERS,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC,
GOLDMAN SACHS BANK USA,
ROYAL BANK OF CANADA,
SUNTRUST BANK,
UBS SECURITIES LLC
and
WELLS FARGO SECURITIES, LLC,
as Syndication Agents,
and
MORGAN STANLEY MUFG LOAN PARTNERS, LLC,
THE ROYAL BANK OF SCOTLAND PLC
and
TD BANK, N.A.,
as Documentation Agents
_____________________________
J.P. MORGAN SECURITIES LLC, CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,
MORGAN STANLEY MUFG LOAN PARTNERS, LLC, RBC CAPITAL MARKETS,
RBS SECURITIES INC., SUNTRUST ROBINSON HUMPHREY, INC.,
UBS SECURITIES LLC and WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers,
and
J.P. MORGAN SECURITIES LLC, CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA,
RBC CAPITAL MARKETS, SUNTRUST ROBINSON HUMPHREY, INC.,
UBS SECURITIES LLC and WELLS FARGO SECURITIES, LLC,
as Joint Bookrunners
|
Page | ||
ARTICLE I
|
||
DEFINITIONS
|
||
Section 1.1
|
Defined Terms
|
1
|
Section 1.2
|
Other Definitional Provisions
|
30
|
ARTICLE II
|
||
AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
|
||
Section 2.1
|
Revolving Credit Commitments
|
30
|
Section 2.2
|
Proceeds of Revolving Credit Loans
|
31
|
Section 2.3
|
Issuance of Letters of Credit
|
31
|
Section 2.4
|
Participating Interests
|
32
|
Section 2.5
|
Procedure for Opening Letters of Credit
|
32
|
Section 2.6
|
Payments in Respect of Letters of Credit
|
32
|
Section 2.7
|
Swing Line Commitment
|
33
|
Section 2.8
|
Participations
|
34
|
ARTICLE III
|
||
AMOUNT AND TERMS OF INCREMENTAL LOANS
|
||
Section 3.1
|
Requests for Incremental Loans
|
34
|
Section 3.2
|
Ranking and Other Provisions
|
35
|
Section 3.3
|
Notices; Lender Elections
|
35
|
Section 3.4
|
Incremental Facility Amendment
|
36
|
Section 3.5
|
Effective Date and Allocations
|
36
|
Section 3.6
|
Conditions to Effectiveness of Increase
|
36
|
Section 3.7
|
Effect of Incremental Facility Amendment
|
37
|
Section 3.8
|
Revolving Credit Commitment Increases
|
37
|
Section 3.9
|
Conflicting Provisions
|
38
|
ARTICLE IV
|
||
RESERVED
|
||
ARTICLE V
|
||
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
|
||
Section 5.1
|
Procedure for Borrowing by the Company
|
38
|
Section 5.2
|
Repayment of Loans; Evidence of Debt
|
38
|
Section 5.3
|
Conversion and Continuation Options
|
39
|
Section 5.4
|
Changes of Commitment Amounts
|
40
|
Section 5.5
|
Optional Prepayments
|
40
|
Section 5.6
|
Mandatory Prepayments.
|
41
|
Section 5.7
|
Interest Rates and Payment Dates
|
42
|
Section 5.8
|
Computation of Interest and Fees
|
42
|
Section 5.9
|
Commitment Fees.
|
43
|
Page | ||
Section 5.10
|
Certain Fees
|
43
|
Section 5.11
|
Letter of Credit Fees
|
43
|
Section 5.12
|
Letter of Credit Reserves
|
44
|
Section 5.13
|
Further Assurances
|
45
|
Section 5.14
|
Obligations Absolute
|
45
|
Section 5.15
|
Assignments
|
45
|
Section 5.16
|
Participations
|
45
|
Section 5.17
|
Inability to Determine Interest Rate for Eurodollar Loans
|
46
|
Section 5.18
|
Pro Rata Treatment and Payments
|
46
|
Section 5.19
|
Illegality
|
47
|
Section 5.20
|
Requirements of Law
|
47
|
Section 5.21
|
Indemnity
|
49
|
Section 5.22
|
Replacement of Lenders
|
49
|
Section 5.23
|
Taxes.
|
50
|
Section 5.24
|
Defaulting Lenders
|
52
|
ARTICLE VI
|
||
REPRESENTATIONS AND WARRANTIES.
|
||
Section 6.1
|
Corporate Existence; Compliance with Law
|
54
|
Section 6.2
|
Corporate Power; Authorization
|
54
|
Section 6.3
|
Enforceable Obligations
|
54
|
Section 6.4
|
No Conflict With Law or Contractual Obligations
|
55
|
Section 6.5
|
No Material Litigation
|
55
|
Section 6.6
|
Investment Company Act
|
55
|
Section 6.7
|
Federal Reserve Regulations
|
55
|
Section 6.8
|
No Default
|
55
|
Section 6.9
|
Taxes
|
55
|
Section 6.10
|
Subsidiaries
|
56
|
Section 6.11
|
Ownership of Property; Liens
|
56
|
Section 6.12
|
ERISA
|
56
|
Section 6.13
|
Environmental Matters.
|
56
|
Section 6.14
|
Accuracy and Completeness of Financial Statements.
|
57
|
Section 6.15
|
Absence of Undisclosed Liabilities
|
57
|
Section 6.16
|
No Material Adverse Change
|
57
|
Section 6.17
|
Solvency
|
57
|
Section 6.18
|
Intellectual Property
|
57
|
Section 6.19
|
Creation and Perfection of Security Interests.
|
58
|
Section 6.20
|
Accuracy and Completeness of Disclosure
|
58
|
Section 6.21
|
Qualified Domestic Assets
|
59
|
Section 6.22
|
OFAC
|
59
|
Section 6.23
|
Patriot Act
|
59
|
Section 6.24
|
FCPA
|
59
|
ARTICLE VII
|
||
CONDITIONS PRECEDENT
|
||
Section 7.1
|
Conditions to Restatement Effective Date
|
59
|
Section 7.2
|
Conditions to All Loans and Letters of Credit
|
62
|
Section 7.3
|
Effectiveness of Amendment and Restatement
|
62
|
Page | ||
Section 7.4
|
Acknowledgement and Affirmation of Security Interests
|
62
|
ARTICLE VIII
|
||
AFFIRMATIVE COVENANTS
|
||
Section 8.1
|
Financial Statements
|
63
|
Section 8.2
|
Certificates; Other Information
|
64
|
Section 8.3
|
Payment of Other Obligations
|
66
|
Section 8.4
|
Continuation of Business and Maintenance of Existence and Material Rights and Privileges
|
66
|
Section 8.5
|
Compliance with All Applicable Laws and Regulations and Material Contractual Obligations
|
66
|
Section 8.6
|
Maintenance of Property; Insurance
|
66
|
Section 8.7
|
Maintenance of Books and Records
|
67
|
Section 8.8
|
Right of the Lenders to Inspect Property and Books and Records
|
67
|
Section 8.9
|
Notices
|
67
|
Section 8.10
|
Minimum Qualified Domestic Assets; Subsidiary Guaranties and Collateral.
|
68
|
Section 8.11
|
Compliance with Environmental Laws
|
74
|
Section 8.12
|
Further Assurances.
|
74
|
ARTICLE IX
|
||
NEGATIVE COVENANTS
|
||
Section 9.1
|
Financial Condition Covenants.
|
75
|
Section 9.2
|
Indebtedness
|
75
|
Section 9.3
|
Limitation on Liens
|
77
|
Section 9.4
|
Limitation on Contingent Obligations
|
79
|
Section 9.5
|
Prohibition on Fundamental Changes
|
79
|
Section 9.6
|
Prohibition on Sale of Assets
|
79
|
Section 9.7
|
Limitation on Investments, Loans and Advances
|
81
|
Section 9.8
|
[Reserved].
|
83
|
Section 9.9
|
Limitation on Dividends
|
83
|
Section 9.10
|
Transaction with Affiliates
|
84
|
Section 9.11
|
[Reserved].
|
84
|
Section 9.12
|
Other Indebtedness.
|
84
|
Section 9.13
|
Fiscal Year
|
85
|
Section 9.14
|
[Reserved].
|
85
|
Section 9.15
|
Limitation on Guarantees
|
85
|
Section 9.16
|
Independence of Covenants
|
85
|
ARTICLE X
|
||
EVENTS OF DEFAULT
|
||
Section 10.1
|
Events of Default
|
85
|
ARTICLE XI
|
||
THE SYNDICATION AGENTS, THE DOCUMENTATION AGENTS, THE
ADMINISTRATI VE AGENT; THE ISSUING LENDER
|
||
Section 11.1
|
Appointment
|
88
|
Page | ||
Section 11.2
|
Delegation of Duties
|
88
|
Section 11.3
|
Exculpatory Provisions
|
89
|
Section 11.4
|
Reliance by Syndication Agents, Documentation Agents or Administrative Agent
|
89
|
Section 11.5
|
Notice of Default
|
89
|
Section 11.6
|
Non-Reliance on Syndication Agents, Documentation Agents, Administrative Agent and Other Lenders
|
89
|
Section 11.7
|
Indemnification
|
90
|
Section 11.8
|
Syndication Agent, Documentation Agent and Administrative Agent in its Individual Capacity
|
90
|
Section 11.9
|
Successor Syndication Agent, Documentation Agent or Administrative Agent
|
90
|
Section 11.10
|
Issuing Lender as Issuer of Letters of Credit
|
91
|
ARTICLE XII
|
||
MISCELLANEOUS
|
||
Section 12.1
|
Amendments and Waivers
|
91
|
Section 12.2
|
Notices
|
92
|
Section 12.3
|
No Waiver; Cumulative Remedies
|
94
|
Section 12.4
|
Survival of Representations and Warranties
|
94
|
Section 12.5
|
Payment of Expenses; Indemnification
|
94
|
Section 12.6
|
Successors and Assigns; Participations; Purchasing Lenders
|
96
|
Section 12.7
|
Adjustments; Set-off
|
99
|
Section 12.8
|
Counterparts
|
99
|
Section 12.9
|
Integration
|
100
|
Section 12.10
|
GOVERNING LAW; NO THIRD PARTY RIGHTS
|
100
|
Section 12.11
|
SUBMISSION TO JURISDICTION; WAIVERS
|
100
|
Section 12.12
|
Acknowledgements
|
101
|
Section 12.13
|
Confidentiality
|
101
|
Section 12.14
|
USA Patriot Act
|
102
|
|
Schedule 1A
|
—
|
Commitment Amounts
|
|
Schedule 1B
|
—
|
Existing Money Market Funds
|
|
Schedule 6.10(a)
|
—
|
Domestic Subsidiaries
|
|
Schedule 6.10(b)
|
—
|
Foreign Subsidiaries
|
|
Schedule 6.11
|
—
|
Leasehold Interests
|
|
Schedule 9.2
|
—
|
Existing Indebtedness
|
|
Schedule 9.3
|
—
|
Existing Liens
|
|
Schedule 9.4
|
—
|
Contingent Obligations
|
|
Schedule 9.6
|
—
|
Permitted Asset Sales
|
|
Schedule 9.7
|
—
|
Investments, Loans and Advances
|
|
Schedule 9.10
|
—
|
Transaction with Affiliates
|
|
Exhibit A
|
—
|
Form of Pledge Agreement
|
|
Exhibit B-1
|
—
|
Form of Company Closing Certificate (Secretary)
|
|
Exhibit B-2
|
—
|
Form of Company Closing Certificate (Officer)
|
|
Exhibit C
|
—
|
Form of Assignment and Acceptance
|
|
Exhibit D
|
—
|
Form of Mortgage (Owned Property)
|
|
Exhibit E
|
—
|
Form of Security Agreement
|
|
Exhibit F
|
—
|
Form of Perfection Certificate
|
|
Exhibit G
|
—
|
Form of Subordination Terms and Conditions of Intercompany Note
|
|
Exhibit H
|
—
|
Form of Credit Party Accession Agreement
|
|
Exhibit I
|
—
|
Form of Guaranty
|
Applicable
Level
|
Ratio of Consolidated Total Indebtedness to Consolidated
EBITDA
|
I
|
Greater than or equal to 3.25 to 1.00
|
II
|
Greater than or equal to 2.50 to 1.00 but less than 3.25 to 1.00
|
III
|
Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00
|
IV
|
Less than 2.00 to 1.00
|
Applicable Level
|
ABR Loans
|
Eurodollar Loans
|
I
|
1.25%
|
2.25%
|
II
|
1.00%
|
2.00%
|
III
|
0.75%
|
1.75%
|
IV
|
0.50%
|
1.50%
|
LIBOR
|
1.00 — Eurodollar Reserve Requirement
|
Applicable Level
|
Rate per Annum
|
I
|
0.40%
|
II
|
0.35%
|
III
|
0.30%
|
IV
|
0.25%
|
The Company:
|
B/E Aerospace, Inc.
1400 Corporate Center Way
Wellington, FL 33414
Attn: Thomas P. McCaffrey, CFO
(or)
Ryan M. Patch, General Counsel
Telecopy: (561) 791-3966
|
With a copy to:
|
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Attn: Maura O’Sullivan, Esq.
E-mail: mosullivan@shearman.com
Telecopy: (646) 848-7897
|
The Administrative Agent, Collateral
Agent and Issuing Lender: |
JPMorgan Chase Bank, N.A.
1111 Fannin Street, 10th Floor
Houston, TX 77002
Attn: Linda Bryant
Loan & Agency Services Fax: (713) 750-2892
Tel: (713) 750-2494
|
and
JPMorgan Chase Bank, N.A.
270 Park Avenue
New York, NY 10017
Attn: Matthew Massie
Credit Risk Management Fax: (212) 270-5100
Tel: (212) 270-5432
|
|
With a copy of any notice sent to
the Administrative Agent or to the
Issuing Lender to: |
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004-1980
Attn: Brian D. Murphy, Esq.
E-mail: brian.murphy@friedfrank.com
Telecopy: (212) 859-4000
|
B/E AEROSPACE, INC. | |
By: | |
Name: | |
Title: |
JPMORGAN CHASE BANK, N.A.,
|
|
as Administrative Agent, Issuing Lender and | |
as a Lender
|
|
By: | |
Name: | |
Title: |
CITIGROUP GLOBAL MARKETS INC., | |
as Syndication Agent | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
CREDIT SUISSE SECURITIES (USA) LLC, | |
as Syndication Agent | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
Credit Suisse Securities (USA) LLC | |
Eleven Madison Avenue | |
New York, New York 10010 | |
Attention: | |
Telecopy: |
GOLDMAN SACHS BANK USA, | |
as Syndication Agent and as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
ROYAL BANK OF CANADA, as Syndication | |
Agent and as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
SUNTRUST BANK, | |
as Syndication Agent and as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
UBS SECURITIES LLC, | |
as Syndication Agent | |
By: | |
Name: | |
Title: | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
UBS Securities LLC | |
299 Park Avenue | |
New York, NY 10171 | |
Attention: | |
Fax: 212-821-5766 |
WELLS FARGO SECURITIES, LLC, | |
as Syndication Agent | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
THE ROYAL BANK OF SCOTLAND PLC, as | |
Documentation Agent and as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention:
|
|
Telecopy: |
TD BANK, N.A., as Documentation Agent and as | |
a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
WELLS FARGO BANK, N.A., as a Lender | |
By: | |
Name: | |
Title: | |
Address: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
CITIBANK, N.A., as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
CREDIT SUISSE AG, CAYMAN ISLANDS | |
BRANCH, as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
UBS LOAN FINANCE LLC, as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
U.S. BANK N.A., as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
BRANCH BANKING AND TRUST COMPANY, | |
as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
CAPITAL ONE LEVERAGE FINANCE CORP., | |
as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
PNC BANK, NATIONAL ASSOCIATION, as a | |
Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
SUMITOMO MITSUI BANKING | |
CORPORATION, as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
FIRST COMMERCIAL BANK, LTD., NEW | |
YORK BRANCH, as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
THE BANK OF TOKYO-MITSUBISHI UFJ, | |
LTD., as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
MORGAN STANLEY BANK, N.A., as a Lender | |
By: | |
Name: | |
Title: | |
Address for Notices: | |
[____] | |
[____] | |
[____] | |
Attention: | |
Telecopy: |
Institution
|
Amount
|
JPMorgan Chase Bank, N.A.
|
$80,333,334
|
SunTrust Bank
|
$80,333,333
|
Wells Fargo Bank, N.A.
|
$80,333,333
|
Citibank, N.A.
|
$75,000,000
|
Credit Suisse AG, Cayman Islands Branch
|
$75,000,000
|
Goldman Sachs Bank USA
|
$75,000,000
|
Royal Bank of Canada
|
$75,000,000
|
UBS Loan Finance LLC
|
$75,000,000
|
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
$38,100,000
|
Morgan Stanley Bank, N.A.
|
$25,400,000
|
The Royal Bank of Scotland plc
|
$63,500,000
|
TD Bank, N.A.
|
$50,000,000
|
U.S. Bank N.A.
|
$45,000,000
|
Branch Banking and Trust Company
|
$35,000,000
|
Capital One Leverage Finance Corp.
|
$25,000,000
|
PNC Bank, National Association
|
$25,000,000
|
Sumitomo Mitsui Banking Corporation
|
$22,000,000
|
First Commercial Bank, Ltd., New York Branch
|
$5,000,000
|
Total
|
$950,000,000
|
Fund Company
|
Account No.
|
Fund
|
JP Morgan Chase
|
*********
|
JP Morgan Treasury Services' Money Market Deposit Account
|
Federated Investments
|
*******
|
Prime Cash Obligations Fund
|
BlackRock Liquidity Funds
|
*****
|
TempFund
|
Credit Suisse
|
**********
|
Dreyfus Cash Management Plus
|
UBS
|
********
|
UBS Select Money Market Fund
|
Morgan Stanley
|
************
|
AAA Institutional Money Trust
|
Bank | Subsidiary | Type | Amount |
Wilmington Trust
Wilmington Trust
|
BE Aerospace, Inc.
BE Aerospace, Inc.
|
Senior Notes – 8.5%
Senior Notes – 6.875%
|
$600,000,000*
$650,000,000
|
Wilmington Trust
|
BE Aerospace, Inc.
|
Senior Notes – 5.25%
|
$1,300,000,000
|
Oracle Credit Corp.
|
BE Aerospace, Inc.
|
Installment Loan
|
$83,199
|
Siemens Financial Services
|
BE Aerospace, Inc.
|
Installment Loan
|
$554,246
|
Carbon Trust
|
B/E Aerospace (UK) Ltd.
|
Installment Loan
|
£80,431
|
Capital One
|
UFC Aerospace
|
Capital Lease
|
$60,000
|
HSBC Equipment Finance
|
UFC Europe
|
Capital Lease
|
£53,354
|
Capital One
|
Altis Aero Systems Corporation
|
Capital Lease
|
$19,486
|
Capital One
|
Altis Aero Systems Corporation
|
Capital Lease
|
$48,020
|
ING Bank
|
Koninklijke Fabriek Inventum B.V.
|
Revolving Credit
|
€450,000
|
Hypovereinsbank
|
B/E Aerospace Consumables
Management GmbH
|
Bank Guarantee
– Property Lease
|
€192,401
|
Hypovereinsbank
|
B/E Aerospace Consumables
Management GmbH
|
Customs Bond
|
€246,533
|
Deutsche Bank
|
B/E Aerospace Consumables
Management GmbH
|
Bank Guarantee
– Customs Bond
|
€38,400
|
Nordea Bank
|
B/E Aerospace Consumables
Management II Limited
|
Customs Bond
|
£200,000
|
Lender
|
Borrower
|
Type
|
Amount
|
B/E Aerospace, Inc.
|
BE Aerospace Europe
Holding LLP
|
Revolving Credit Facility
|
Up to $320,000,000
|
Page | ||
ARTICLE I
DEFINITIONS
|
||
Section 1.01
|
Terms Defined in the Credit Agreement
|
2
|
Section 1.02
|
Terms Defined in the UCC
|
2
|
Section 1.03
|
Additional Definitions
|
2
|
Section 1.04
|
Terms Generally
|
8
|
ARTICLE II
THE SECURITY INTERESTS
|
||
Section 2.01
|
Grant of Security Interests
|
8
|
Section 2.02
|
Security Interests Absolute
|
9
|
Section 2.03
|
Continuing Liability of the Credit Parties
|
10
|
ARTICLE III
REPRESENTATIONS AND WARRANTIES
|
||
Section 3.01
|
Title to Collateral
|
10
|
Section 3.02
|
Validity, Perfection and Priority of Security Interests
|
11
|
Section 3.03
|
Collateral.
|
11
|
Section 3.04
|
No Consents
|
11
|
ARTICLE IV
COVENANTS
|
||
Section 4.01
|
Delivery of Collateral
|
12
|
Section 4.02
|
Delivery of Perfection Certificate; Filing of Financing Statements and Delivery of Search Reports
|
12
|
Section 4.03
|
Change of Name, Identity, Structure or Location; Subjection to Other Security Agreements
|
12
|
Section 4.04
|
Further Actions
|
13
|
Section 4.05
|
Disposition of Collateral
|
13
|
Section 4.06
|
Additional Collateral
|
13
|
Section 4.07
|
Information Regarding Collateral
|
14
|
ARTICLE V
DISTRIBUTIONS ON COLLATERAL; VOTING
|
||
Section 5.01
|
Right to Receive Distributions on Collateral; Voting.
|
14
|
ARTICLE VI
GENERAL AUTHORITY; REMEDIES
|
||
Section 6.01
|
General Authority
|
15
|
Section 6.02
|
Remedies upon Event of Default.
|
16
|
Section 6.03
|
Securities Act
|
17
|
Section 6.04
|
Other Rights of the Collateral Agent.
|
18
|
Section 6.05
|
Limitation on Duty of Collateral Agent in Respect of Collateral
|
18
|
Section 6.06
|
Waiver and Estoppel.
|
19
|
Section 6.07
|
Application of Proceeds.
|
19
|
ARTICLE VII
THE COLLATERAL AGENT
|
||
Section 7.01
|
Concerning the Collateral Agent
|
20
|
Section 7.02
|
Appointment of Co-Collateral Agent
|
20
|
Section 7.03
|
Appointment of Sub-Agents
|
21
|
ARTICLE VIII
MISCELLANEOUS
|
||
Section 8.01
|
Notices
|
21
|
Section 8.02
|
No Waivers; Non-Exclusive Remedies
|
21
|
Section 8.03
|
Compensation and Expenses of the Collateral Agent; Indemnification.
|
22
|
Section 8.04
|
Enforcement
|
23
|
Section 8.05
|
Amendments and Waivers
|
24
|
Section 8.06
|
Successors and Assigns
|
24
|
Section 8.07
|
Governing Law
|
24
|
Section 8.08
|
Limitation of Law; Severability.
|
24
|
Section 8.09
|
Counterparts; Effectiveness
|
25
|
Section 8.10
|
Additional Credit Parties
|
25
|
Section 8.11
|
Termination; Release of Credit Parties.
|
26
|
Section 8.12
|
Entire Agreement
|
26
|
Schedules:
|
|||
Schedule I
|
-
|
List of Pledged Shares
|
|
Schedule II
|
-
|
List of Pledged Notes
|
|
Schedule III
|
-
|
List of Pledged LLC Interests
|
|
Schedule IV
|
-
|
List of Pledged Partnership Interests
|
Exhibits:
|
|||
Exhibit A
|
-
|
Form of Issuer Control Agreement
|
|
Exhibit B
|
-
|
Form of Securities Account Control Agreement
|
(i)
|
in the case of Collateral constituting Uncertificated Securities, (A) registration thereof on the books and records of the issuer thereof in the name of the Collateral Agent or its nominee or custodian (who may not be a Securities Intermediary) or (B) the execution and delivery by the issuer thereof of an effective agreement, substantially in the form of Exhibit A hereto (each an “Issuer Control Agreement”), pursuant to which such issuer agrees that it will comply with instructions originated by the Collateral Agent or such nominee or custodian without further consent of the registered owner of such Collateral or any other Person;
|
||
(ii)
|
in the case of Collateral constituting Security Entitlements or other Financial Assets deposited in or credited to a Securities Account, (A) completion of all actions necessary to constitute the Collateral Agent or its nominee or custodian the entitlement holder with respect to each such Security Entitlement or (B) the execution and delivery by the relevant Securities Intermediary of an effective Account Control Agreement pursuant to which such Securities Intermediary agrees to comply with all entitlement orders originated by the Collateral Agent or such nominee or custodian without further consent by the relevant entitlement holder or any other Person;
|
||
(iii)
|
in the case of LLC Interests and Partnership Interests which do not constitute Securities, (A) compliance with the provisions of clause (i) above for each such item of Collateral which is represented by a certificate and (B) compliance with the provisions of clause (ii) above for each such item of Collateral which is not evidenced by a certificate;
|
||
(iv)
|
in the case of Collateral which constitute Instruments, transfer thereof to the Collateral Agent or its nominee or custodian by physical delivery to the Collateral Agent or its nominee or custodian indorsed to, or registered in the name of, the Collateral Agent or its nominee or custodian or indorsed in blank;
|
||
(v)
|
in the case of cash, transfer thereof to the Collateral Agent or its nominee or custodian by physical delivery to the Collateral Agent or its nominee or custodian; and
|
||
(vi)
|
in each case such additional or alternative procedures as may hereafter become reasonably appropriate to grant control of, or otherwise perfect a security interest in, any Collateral in favor of the Collateral Agent or its nominee or custodian, consistent with changes in applicable law or regulations or the interpretation thereof.
|
(vii)
|
all additional or substitute promissory notes from time to time issued to or otherwise acquired by any Credit Party in any manner in respect of Pledged Notes or otherwise, and all interest, distributions, cash, instruments and other property, income, profits and proceeds from time to time received or receivable or otherwise made upon or distributed in respect of such additional or substitute notes;
|
||
(viii)
|
all promissory notes, bankers’ acceptances, commercial paper, negotiable certificates of deposit and other obligations constituting “instruments” within the meaning of the UCC; and
|
||
(ix)
|
to the extent not otherwise included in the foregoing, all cash and non-cash Proceeds thereof.
|
||
(x)
|
all additional or substitute limited liability company membership interests from time to time issued to or otherwise acquired by any Credit Party in any manner in respect of Pledged LLC Interests or otherwise, and all dividends, distributions, cash, instruments and other property, income, profits and proceeds from time to time received or receivable or otherwise made upon or distributed in respect of such additional or substitute membership interests;
|
||
(xi)
|
all right, title and interest of any Credit Party in each limited liability company to which any Pledged LLC Interest relates, including, without limitation:
|
||
1)
|
all interests of such Credit Party in the capital of such limited liability company and in all profits, losses and assets, whether tangible or intangible and whether real, personal or mixed, of such limited liability company, and all other distributions to which such Credit Party shall at any time be entitled in respect of such Pledged LLC Interests;
|
||
2)
|
all other payments due or to become due to such Credit Party in respect of Pledged LLC Interests, whether under any limited liability company agreement or operating agreement or otherwise and whether as contractual obligations, damages, insurance proceeds or otherwise;
|
||
3)
|
all of such Credit Party’s claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under any limited liability company agreement or operating agreement, or at law or otherwise in respect of such Pledged LLC Interests;
|
||
4)
|
all present and future claims, if any, of such Credit Party against any such limited liability company for moneys loaned or advanced, for services rendered or otherwise; and
|
||
5)
|
all of such Credit Party’s rights under any limited liability company agreement or operating agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of such Credit Party relating to such Pledged LLC Interests, including any power to terminate, cancel or modify any limited liability company agreement or operating agreement, to execute any instruments and to take any and all other action on behalf of and in the name of such Credit Party in respect of such Pledged LLC Interests and any such limited liability company, to make determinations, to exercise any election (including, without limitation, election of remedies) or option to give or receive any notice, consent, amendment, waiver or approval, together with full power and authority to demand, receive, enforce, collect or give receipt for any of the foregoing or for any assets of any such limited liability company, to enforce or execute any checks or other instruments or orders, to file any claims and to take any other action in connection with any of the foregoing; and
|
||
(xii)
|
to the extent not otherwise included in the foregoing, all cash and non-cash Proceeds thereof.
|
(xiii)
|
all additional or substitute partnership interests from time to time issued to or otherwise acquired by any Credit Party in any manner in respect of Pledged Partnership Interests or otherwise, and all dividends, distributions, cash, instruments and other property, income, profits and proceeds from time to time received or receivable or otherwise made upon or distributed in respect of such additional or substitute partnership interests;
|
||
(xiv)
|
all right, title and interest of any Credit Party in each partnership to which any Pledged Partnership Interest relates, including, without limitation:
|
||
1)
|
all interests of such Credit Party in the capital of such partnership and in all profits, losses and assets, whether tangible or intangible and whether real, personal or mixed, of such partnership, and all other distributions to which such Credit Party shall at any time be entitled in respect of such Pledged Partnership Interests;
|
||
2)
|
all other payments due or to become due to such Credit Party in respect of Pledged Partnership Interests, whether under any partnership agreement or otherwise and whether as contractual obligations, damages, insurance proceeds or otherwise;
|
||
3)
|
all of such Credit Party’s claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under any partnership agreement, or at law or otherwise in respect of such Pledged Partnership Interests;
|
||
4)
|
all present and future claims, if any, of such Credit Party against any such partnership for moneys loaned or advanced, for services rendered or otherwise; and
|
||
5)
|
all of such Credit Party’s rights under any partnership agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of such Credit Party relating to such Pledged Partnership Interests, including any power to terminate, cancel or modify any partnership agreement, to execute any instruments and to take any and all other action on behalf of and in the name of such Credit Party in respect of such Pledged Partnership Interests and any such partnership, to make determinations, to exercise any election (including, without limitation, election of remedies) or option to give or receive any notice, consent, amendment, waiver or approval, together with full power and authority to demand, receive, enforce, collect or give receipt for any of the foregoing or for any assets of any such partnership, to enforce or execute any checks or other instruments or orders, to file any claims and to take any other action in connection with any of the foregoing; and
|
||
(xv)
|
to the extent not otherwise included in the foregoing, all cash and non-cash Proceeds thereof.
|
(xvi)
|
all additional or substitute shares of capital stock or other equity interests of any class of any issuer from time to time issued to or otherwise acquired by any Credit Party in any manner in respect of Pledged Shares or otherwise, the certificates representing such additional or substitute shares, and all dividends, interest, distributions, cash, instruments and other property, income, profits and proceeds from time to time received, receivable or otherwise made upon or distributed in respect of or in exchange for any or all of such additional or substitute shares; and
|
||
(xvii)
|
to the extent not otherwise included in the foregoing, all cash and non-cash proceeds thereof.
|
(i)
|
Stock;
|
||
(ii)
|
Instruments;
|
||
(iii)
|
LLC Interests;
|
||
(iv)
|
Partnership Interests;
|
||
(v)
|
Investment Property;
|
||
(vi)
|
Financial Assets;
|
||
(vii)
|
all General Intangibles; and
|
||
(viii)
|
all Proceeds of all or any of the Collateral described in clauses (i) through (vii) hereof;
|
(i)
|
any extension, renewal, settlement, compromise, acceleration, waiver or release in respect of any obligation of any other Credit Party under any Finance Document or any other agreement or instrument evidencing or securing any Finance Obligation, by operation of law or otherwise;
|
||
(ii)
|
any change in the manner, place, time or terms of payment of any Finance Obligation or any other amendment, supplement or modification to any Finance Document or any other agreement or instrument evidencing or securing any Finance Obligation;
|
||
(iii)
|
any release, non-perfection or invalidity of any direct or indirect security for any Finance Obligation, any sale, exchange, surrender, realization upon, offset against or other action in respect of any direct or indirect security for any Finance Obligation or any release of any other obligor or Credit Parties in respect of any Finance Obligation;
|
||
(iv)
|
any change in the existence, structure or ownership of any Credit Party, or any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Credit Party or its assets or any resulting disallowance, release or discharge of all or any portion of any Finance Obligation;
|
||
(v)
|
the existence of any claim, set-off or other right which any Credit Party may have at any time against the Company, any other Credit Party, any Agent, any other Secured Party or any other Person, whether in connection herewith or any unrelated transaction; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
|
||
(vi)
|
any invalidity or unenforceability relating to or against the Company or any other Credit Party for any reason of any Finance Document or any other agreement or instrument evidencing or securing any Finance Obligation or any provision of applicable law or regulation purporting to prohibit the payment by the Company or any other Credit Party of any Finance Obligation;
|
||
(vii)
|
any failure by any Secured Party: (A) to file or enforce a claim against any Credit Party or its estate (in a bankruptcy or other proceeding); (B) to give notice of the existence, creation or incurrence by any Credit Party of any new or additional indebtedness or obligation under or with respect to the Finance Obligations; (C) to commence any action against any Credit Party; (D) to disclose to any Credit Party any facts which such Secured Party may now or hereafter know with regard to any Credit Party; or (E) to proceed with due diligence in the collection, protection or realization upon any collateral securing the Finance Obligations;
|
||
(viii)
|
any direction as to application of payment by the Company, any other Credit Party or any other Person;
|
(ix)
|
any subordination by any Secured Party of the payment of any Finance Obligation to the payment of any other liability (whether matured or unmatured) of any Credit Party to its creditors;
|
||
(x)
|
any act or failure to act by the Collateral Agent or any other Secured Party under this Agreement or otherwise which may deprive any Credit Party of any right to subrogation, contribution or reimbursement against any other Credit Party or any right to recover full indemnity for any payments made by such Credit Party in respect of the Finance Obligations; or
|
||
(xi)
|
any other act or omission to act or delay of any kind by any Credit Party or any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this clause, constitute a legal or equitable discharge of any Credit Party’s obligations hereunder, except that a Credit Party may assert the defense of final payment in full of the Finance Obligations.
|
(a)
|
Schedules I, II, III and IV hereto (as such schedules may be amended, supplemented or modified from time to time) set forth, as of the date hereof (or as of the date of such amendment, supplement, or modification) (i) the name and jurisdiction of organization of, and the ownership interest (including percentage owned and number of shares, units or other equity interests) of such Credit Party in the Shares, LLC Interests and Partnership Interests issued by each of such Credit Party’s direct Subsidiaries which are required to be included in the Collateral and pledged hereunder, (ii) all other Shares, LLC Interests and Partnership Interests directly owned by such Credit Party that are required to be included in the Collateral and pledged hereunder and (iii) the issuer, date of issuance and amount of all promissory notes directly owned or held by such Credit Party that are required to be included in the Collateral and pledged hereunder. Such Credit Party holds all such Collateral directly (i.e., not through a Subsidiary, Securities Intermediary or any other Person).
|
||
(b)
|
All Collateral consisting of Pledged Shares, Pledged LLC Interests and Pledged Partnership Interests has been duly authorized and validly issued, is fully paid and non-assessable and is subject to no options to purchase or similar rights of any Person. Except as set forth on Schedules I, III and IV hereto, (i) such Collateral constitutes 100% of the issued and outstanding shares of capital stock or other equity interests of the respective issuers thereof, (ii) no issuer of Collateral has outstanding any security convertible into or exchangeable for any shares of its capital stock or other equity interests or any warrant, option, convertible security, instrument or other interest entitling the holder thereof to acquire any such shares or any security convertible into or exchangeable for such shares, (iii) there are no voting trusts, stockholder agreements, proxies or other agreements in effect with respect to the voting or transfer of such shares of its capital stock and (iv) there are no Liens or agreements, arrangements or obligations to create or give any Lien relating to any such shares of capital stock. No Credit Party is now a party to or otherwise bound by any agreement, other than this Agreement and the other Credit Documents, which restricts in any materially adverse manner the rights of the Collateral Agent or any other present or future holder of any Collateral with respect thereto.
|
||
(a)
|
So long as no Event of Default shall have occurred and be continuing:
|
|||
(i)
|
Each Credit Party shall be entitled to exercise any and all voting, management, administration and other consensual rights pertaining to the Collateral or any part thereof for any purpose not inconsistent with the terms of this Agreement and the other Credit Documents; provided, however, that no Credit Party shall exercise or refrain from exercising any such right if, in the Collateral Agent’s reasonable judgment, such action would violate or be inconsistent with any of the terms of this Agreement, any other Credit Document, or would have the effect of impairing the position or interests of the Collateral Agent hereunder or thereunder.
|
|||
(ii)
|
Each Credit Party shall be entitled to receive and retain any and all dividends, interest, distributions, cash, instruments and other payments and distributions made upon or in respect of the Collateral; provided, however, that any and all:
|
|||
1)
|
dividends, interest and other payments and distributions paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Collateral;
|
|||
2)
|
additional stock, other securities, limited liability company membership interests, partnership interests, promissory notes or other instruments or property paid or distributed in respect of any Pledged Shares, Pledged LLC Interests or Pledged Partnership Interests by way of share-split, spin-off, split-up, reclassification, combination of shares or similar rearrangement; and
|
|||
3)
|
all other or additional stock, other securities, limited liability company membership interests, partnership interests, promissory notes or other instruments or property which may be paid in respect of the Collateral by reason of any consolidation, merger, exchange of shares, conveyance of assets, liquidation or similar reorganization;
|
(iii) |
So long as no Event of Default has occurred and is continuing, the Collateral Agent shall, upon written request from any Credit Party, execute and deliver (or cause to be executed and delivered) to such Credit Party or as specified in such request all proxies, powers of attorney, consents, ratifications and waivers and other instruments as such Credit Party may reasonably request for the purpose of enabling such Credit Party to exercise the voting and other rights which it is entitled to exercise pursuant to paragraph (i) above and to receive the dividends, interest, distributions, cash, instruments or other payments or distributions which it is authorized to receive and retain pursuant to paragraph (ii) above in respect of any of the Collateral which is registered in the name of the Collateral Agent or its nominee.
|
|||
(b) |
Upon the occurrence and during the continuance of an Event of Default:
|
(i)
|
All rights of each Credit Party to receive the dividends, interest, distributions, cash, instruments and other payments and distributions which it would otherwise be authorized to receive and retain pursuant to Section 5.01(a)(ii) shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to receive and hold as Collateral such dividends, interest, distributions, cash, instruments and other payments and distributions;
|
|||
(ii)
|
All dividends, interest, distributions, cash, instruments and other payments and distributions which are received by any Credit Party contrary to the provisions of paragraph (i) of this Section 5.01(b) shall be received in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Credit Party and shall be forthwith Delivered, in the same form as so received to the Collateral Agent or its nominee or custodian to hold as Collateral.
|
|||
(c)
|
Upon the occurrence and during the continuance of an Event of Default, all rights of such Credit Party to exercise the voting, management, administration and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 5.01(a)(i) shall cease, all such rights shall thereupon become vested in the Collateral Agent, who shall thereupon have the sole right to exercise such voting and other consensual rights, and such Credit Party shall take all actions as may be necessary or appropriate to effect such right of the Collateral Agent.
|
|
(i)
|
to take any and all reasonably appropriate action and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Agreement;
|
||
|
(ii) |
to receive, take, indorse, assign and deliver any and all checks, notes, drafts, acceptances, documents and other negotiable and non-negotiable Instruments taken or received by such Credit Party as, or in connection with, the Collateral;
|
||
|
(iii) |
to accelerate any Pledged Note which may be accelerated in accordance with its terms, and to otherwise demand, sue for, collect, receive and give acquittance for any and all monies due or to become due on or by virtue of any Collateral;
|
||
|
(iv) |
to commence, settle, compromise, compound, prosecute, defend or adjust any claim, suit, action or proceeding with respect to, or in connection with, the Collateral;
|
(v)
|
to sell, transfer, assign or otherwise deal in or with the Collateral or the Proceeds or avails thereof, as fully and effectually as if the Collateral Agent were the absolute owner thereof;
|
|||
(vi)
|
to extend the time of payment of any or all of the Collateral and to make any allowance and other adjustments with respect thereto;
|
|||
(vii)
|
to vote all or any part of the Pledged Shares, Pledged LLC Interests, Pledged Partnership Interests and/or Pledged Notes (whether or not transferred into the name of the Collateral Agent) and give all consents, waivers and ratifications in respect of the Collateral; and
|
|||
(viii)
|
to do, at its option, but at the expense of the Credit Parties, at any time or from time to time, all acts and things which the Collateral Agent deems reasonably necessary to protect or preserve the Collateral and to realize upon the Collateral.
|
(a)
|
If any Event of Default has occurred and is continuing, the Collateral Agent may, in addition to all other rights and remedies granted to it in this Agreement and in any other agreement securing, evidencing or relating to the Finance Obligations (including, without limitation, the right to give instructions or a notice of sole control to an issuer subject to an Issuer Control Agreement): (i) exercise on behalf of the Secured Parties all rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, (ii) without demand of performance or other demand or notice of any kind (except as herein provided or as may be required by mandatory provisions of law) to or upon any Credit Party or any other Person (all of which demands and/or notices are hereby waived by each Credit Party), (A) apply all cash, if any, then held by it as Collateral as specified in Section 6.07 and (B) if there shall be no such cash or if such cash shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof in one or more parcels (which need not be in round lots) at public or private sale or at broker’s board or on any securities exchange, at any office of the Collateral Agent or elsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, without assumption of any credit risk and at such price or prices as the Collateral Agent may deem reasonably satisfactory.
|
|||
(b)
|
If any Event of Default has occurred and is continuing, the Collateral Agent shall give each Credit Party not less than ten days’ prior notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral which threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof being sold, will first be offered for sale, (iii) in the case of a private sale, state the day after which such sale may be consummated, (iv) contain the information specified in Section 9-613 of the UCC, (v) be authenticated and (vi) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each Credit Party agree that such notice constitutes reasonable notification within the meaning of Section 9-611 of the UCC. Except as otherwise provided herein, each Credit Party hereby waives, to the extent permitted by applicable law, notice and judicial hearing in connection with the Collateral Agent’s taking possession or disposition of any of the Collateral.
|
(c)
|
The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Credit Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or reasonably advisable in order that any such sale may be made in compliance with law. Upon any such sale, the Collateral Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold to it absolutely and free from any claim or right of whatsoever kind. Any such public sale shall be held at such time or times within ordinary bankers hours and at such place or places as the Collateral Agent may fix in the notice of such sale. At any such sale, the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obligated to make any such sale pursuant to any such notice. The Collateral 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 same may be so adjourned without further notice. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice.
|
(a)
|
If any Event of Default has occurred and is continuing, the Collateral Agent, instead of exercising the power of sale conferred upon it pursuant to Section 6.02, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction, and may in addition institute and maintain such suits and proceedings as the Collateral Agent may deem appropriate to protect and enforce the rights vested in it by this Agreement.
|
|
(b)
|
If any Event of Default has occurred and is continuing, the Collateral Agent shall, to the extent permitted by applicable law, without notice to any Credit Party or any party claiming through any Credit Party, without regard to the solvency or insolvency at such time of any Person then liable for the payment of any of the Finance Obligations, without regard to the then value of the Collateral and without requiring any bond from any complainant in such proceedings, be entitled as a matter of right to the appointment of a receiver or receivers (who may be the Collateral Agent) of the Collateral or any part thereof, and of the profits, revenues and other income thereof, pending such proceedings, with such powers as the court making such appointment shall confer, and to the entry of an order directing that the profits, revenues and other income of the property constituting the whole or any part of the Collateral be segregated, sequestered and impounded for the benefit of the Collateral Agent and the Secured Parties, and each Credit Party irrevocably consents to the appointment of such receiver or receivers and to the entry of such order.
|
(a)
|
Each Credit Party agrees, to the extent it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, moratorium, turnover or redemption law, or any law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force which may delay, prevent or otherwise affect the performance or enforcement of this Agreement, and each Credit Party hereby waives all benefit or advantage of all such laws to the extent permitted by law. Each Credit Party covenants that it will not hinder, delay or impede the execution of any power granted to the Collateral Agent, the Administrative Agent or any other Secured Party in any Finance Document.
|
|
(b)
|
Each Credit Party, to the extent it may lawfully do so, on behalf of itself and all who claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or pursuant to judicial proceedings or under any foreclosure or any enforcement of this Agreement, and consents and agrees that all of the Collateral may at any such sale be offered and sold as an entirety.
|
|
(c)
|
Each Credit Party waives, to the extent permitted by law, presentment, demand, protest and any notice of any kind (except the notices expressly required hereunder or in the other Finance Documents) in connection with this Agreement and any action taken by the Collateral Agent with respect to the Collateral.
|
|
(a)
|
Priority of Distributions. The proceeds of any sale of, or other realization upon, all or any part of the Collateral by or on behalf of the Collateral Agent (including any proceeds received and held pursuant to Section 5.01) and any cash held by the Collateral Agent (or its nominee or custodian hereunder) and any other amounts received on account of its Finance Obligations shall be paid over to the Administrative Agent for application as provided in Section 5.04 of the Security Agreement. The Collateral Agent may make distributions hereunder, on a ratable basis, in cash or in kind or in any combination thereof.
|
|
(b)
|
Distributions with Respect to Letters of Credit. Each of the Credit Parties and the Secured Parties agrees and acknowledges that if (after all outstanding Loans and L/C Disbursements have been paid in full) the Lenders are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued (or deemed issued) under the Credit Agreement, such amounts shall be deposited in the L/C Cash Collateral Account (as defined in the Security Agreement) as cash security for the repayment of Obligations owing to the Revolving Lenders in respect of such Letters of Credit. Upon termination of all outstanding Letters of Credit, all of such cash security shall be applied to the remaining Obligations of the Lenders. If there remains any excess cash security, such excess cash shall be withdrawn by the Collateral Agent from the LC Cash Collateral Account and distributed in accordance with Section 6.07(a) hereof.
|
|
(c)
|
Reliance by Collateral Agent. For purposes of applying payments received in accordance with this Section 6.07, the Collateral Agent shall be entitled to rely upon (i) the Administrative Agent under the Credit Agreement and (ii) the authorized representative (each a “Representative”) for the Hedge Banks and Cash Management Banks, as applicable, for a determination (which the Administrative Agent, each Representative for any Hedge Bank or Cash Management Bank and the Secured Parties agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding Obligations, Swap Obligations and Cash Management Obligations owed to the Secured Parties, and shall have no liability to any Credit Party or any other Secured Party for actions taken in reliance on such information except in the case of its gross negligence, bad faith or willful misconduct. Unless it has actual knowledge (including by way of written notice from a Hedge Bank or Cash Management Bank) to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to assume that no Swap Contracts or Cash Management Agreements are in existence. All distributions made by the Collateral Agent pursuant to this Section shall be presumptively correct (except in the event of manifest error, gross negligence or willful misconduct), and the Collateral Agent shall have no duty to inquire as to the application by the Secured Parties of any amounts distributed to them.
|
|
(d)
|
Deficiencies. It is understood that the Credit Parties shall remain jointly and severally liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the amount of the Finance Obligations.
|
|
|
(i) |
The Collateral Agent is authorized to take all such actions as are provided to be taken by it as Collateral Agent hereunder and all other action reasonably incidental thereto. As to any matters not expressly provided for herein (including, without limitation, the timing and methods of realization upon the Collateral), the Collateral Agent shall act or refrain from acting in accordance with written instructions from the Required Lenders or, in the absence of such instructions or provisions, in accordance with its discretion.
|
|
|
(ii) |
The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Security Interests in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder unless such action or omission constitutes gross negligence or willful misconduct. The Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Agreement by any Credit Party.
|
(a)
|
Expenses. The Credit Parties, jointly and severally, agree (i) to pay or reimburse the Collateral Agent for all reasonable out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement and any amendment, waiver, consent or other modification of the provisions hereof (whether or not the transactions contemplated hereby are consummated), and the consummation of the transactions contemplated hereby, including all fees, disbursements and other charges of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the Collateral Agent, (ii) to pay or reimburse the Collateral Agent and the other Secured Parties for all taxes which the Collateral Agent or any Secured Party may be required to pay by reason of the security interests granted in the Collateral (including any applicable transfer taxes) or to free any of the Collateral from the lien thereof and (iii) to pay or reimburse each Agent, any Representative of one or more Hedge Banks or Cash Management Banks and each other Senior Finance Party for all reasonable costs and expenses incurred in connection with the enforcement, attempted enforcement, or preservation of any rights and remedies under this Agreement (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Law), including all reasonable fees and disbursements of counsel, (including the allocated charges of internal counsel). The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by any Agent and the costs of independent public accountants and other outside experts retained by or on behalf of the Agents and the Secured Parties. The agreements in this Section 8.03(a) shall survive the termination of the Commitments, Swap Contracts and Cash Management Agreements and repayment of all Finance Obligations.
|
|
(b)
|
Protection of Collateral. If any Credit Party fails to comply with the provisions of any Finance Document, such that the value of any Collateral or the validity, perfection, rank or value of the Security Interests are thereby diminished or put at risk, the Collateral Agent may, but shall not be required to, effect such compliance on behalf of such Credit Party, and the Credit Parties shall reimburse the Collateral Agent for the costs thereof within five Business Days of receipt of an invoice therefor. Any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Collateral, or in respect of periodic appraisals of the Collateral, or in respect of the sale or other disposition thereof shall be borne and paid by the Credit Parties. If any Credit Party fails to promptly pay any portion thereof when due, the Collateral Agent may, at its option, but shall not be required to, pay the same and charge the Credit Parties’ account therefor, and the Credit Parties agree to reimburse the Collateral Agent therefor on demand. All sums so paid or incurred by the Collateral Agent for any of the foregoing and any and all other sums for which any Credit Party may become liable hereunder and all costs and expenses (including attorneys’ fees, legal expenses and court costs) reasonably incurred by the Collateral Agent or any Secured Party in enforcing or protecting the Security Interests or any of their rights or remedies under this Agreement, shall, together with interest thereon until paid at the rate applicable to interest at the highest rate applicable under the Finance Documents in respect of overdue obligations, be additional Finance Obligations hereunder.
|
|
(c)
|
Indemnification. Each Credit Party, jointly and severally, agrees to indemnify save and hold harmless the Collateral Agent the Representatives, each other Secured Party and their respective Affiliates, directors, officers, employees, counsel, agents and, in the case of any Lender which is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities, their trustees and advisors, and their respective attorneys-in-fact and successors and assigns (collectively, the “Indemnitees”) from and against: (i) any and all claims, demands, actions or causes of action that may at any time (including at any time following the Discharge of the Finance Obligations and the resignation or removal of any Agent or Representative or the replacement of any Lender) be asserted or imposed against any Indemnitee, arising out of or in any way relating to or arising out of the ownership, purchasing, delivery, control, acceptance, financing, possession, sale, return or other disposition of the Collateral, the violation of the laws of any country, state or other governmental body or unit, or any tort or contract claim; (ii) any administrative or investigative proceeding by any Governmental Authority arising out of or related to a claim, demand, action or cause of action described in clause (i) above; and (iii) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including fees and disbursements of counsel) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, demand, action or cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action or cause of action or proceeding, in all cases, and whether or not an Indemnitee is a party to such claim, demand, action or cause of action, or proceeding; provided that no Indemnitee shall be entitled to indemnification for any claim to the extent such claim is determined by a court of competent jurisdiction in a final non-appealable judgment to have been caused by its own gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 8.03(c) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Credit Party, its directors, shareholders or creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Without prejudice to the survival of any other agreement of the Credit Parties hereunder and under the other Finance Documents, the agreements and obligations of the Credit Parties contained in this Section 8.03(c) shall survive the repayment of the Loans and other obligations under the Finance Documents and the termination of the Commitments. Any amounts paid by any Indemnitee as to which such Indemnitee has a right to reimbursement hereunder shall constitute Finance Obligations.
|
|
(d)
|
Contribution. If and to the extent that the obligations of any Credit Party under this Section 8.03 are unenforceable for any reason, each Credit Party hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
|
|
(a)
|
All rights, remedies and powers provided in this Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law which may be controlling and be limited to the extent necessary so that they will not render this Agreement invalid, unenforceable in whole or in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law.
|
|
(b)
|
If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the fullest 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 Collateral Agent and the Secured Parties 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 provisions in any other jurisdiction.
|
|
(a)
|
Termination. Upon the Discharge of the Finance Obligations, the cancellation, expiration or cash collateralization (on terms reasonably satisfactory to the Issuing Lender) of all outstanding Letters of Credit, and the termination of all Commitments under the Credit Documents, the Security Interests shall terminate and all rights to the Collateral shall revert to the Credit Parties. In addition, at any time and from time to time prior to such termination of the Security Interests, the Collateral Agent may release any of the Collateral as contemplated by the Credit Agreement. Upon any such termination of the Security Interests or release of Collateral, the Collateral Agent will, upon request by and at the expense of any Credit Party, execute and deliver to such Credit Party such documents as such Credit Party shall reasonably request to evidence the termination of the Security Interests or the release of such Collateral, as the case may be. Any such documents shall be without recourse to or warranty by the Collateral Agent or the Secured Parties. The Collateral Agent shall have no liability whatsoever to any Secured Party as a result of any release of Collateral by it as permitted by this Section 8.11. Upon any release of Collateral pursuant to this Section 8.11, none of the Secured Parties shall have any continuing right or interest in such Collateral or the Proceeds thereof.
|
|
(b)
|
Release of Credit Parties. If any part of the Collateral is sold or otherwise disposed of or liquidated in compliance with the requirements of the Credit Documents (or such sale, other disposition or liquidation has been approved in writing by those Secured Parties whose approval is required by the applicable Credit Documents and the proceeds of such sale, disposition or liquidation are applied in accordance with the provisions of the Credit Documents, to the extent applicable, the Collateral Agent, at the request and expense of such Credit Party, will duly release from the security interest created hereby and assign, transfer and deliver to such Credit Party (without recourse and without representation or warranty) such of the Collateral as is then being (or has been) so sold, disposed of or liquidated as may be in the possession or control of the Collateral Agent and has not theretofore been released pursuant to this Agreement.
|
CREDIT PARTIES:
|
B/E AEROSPACE, INC.
|
|
By:
|
||
Name: | ||
Title: |
COLLATERAL AGENT:
|
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
|
|
By:
|
||
Name: | ||
Title: |
Issuer
|
Certificate
No.(s). |
Number of Shares
|
Par
Value |
Type of Investment
Property |
Burns Aerospace Europe S.A.R.L.
|
Uncertificated
|
325 shares of capital stock
|
€16
|
Uncertificated Security
|
BE Intellectual Property, Inc.
|
1
|
100 shares of common stock
|
$0.01
|
Security
|
BE Aerospace Canada, Inc.
|
1
|
100 shares of common stock
|
$0.01
|
Security
|
BE Aerospace Australia, Inc.
|
1
|
100 shares of common stock
|
$0.01
|
Security
|
BE Aerospace El Salvador, Inc.
|
1
|
100 shares of common stock
|
$0.01
|
Security
|
B/E Aerospace Machined Products, Inc.
|
1
|
1,000 shares of common stock
|
$0.01
|
Security
|
CMP SAS
|
Uncertificated
|
292 ordinary shares
|
€1,333.33
|
Uncertificated Security
|
Nordskog Industries, Inc.
|
2
|
941 shares of capital stock
|
None
|
Security
|
B/E Aerospace Development Corporation
|
1
|
300 shares of common stock
|
$0.01
|
Security
|
Bomhoff Acquisition, Inc.
|
Uncertificated
|
1000 shares of common stock
|
$0.01
|
Uncertificated Security
|
Composite Specialties, Inc.
|
7
|
54,000 shares of common stock
|
None
|
Security
|
M & M Aerospace Hardware, Inc.
|
38
|
100,000 shares of common stock
|
$0.01
|
Security
|
Flight Structures, Inc.
|
66
|
637332.78 shares of common stock
|
None
|
Security
|
BE Aerospace Holdings C.V.
|
Uncertificated
|
65% of interests
|
Uncertificated Security
|
|
NYF Corp.
|
100
|
2,000 shares of common stock
|
None
|
Security
|
JAY CEE Fasteners Corp.
|
8, 11, 12 and 13
|
100 shares of capital stock
|
None
|
Security
|
NYFCZ S.R.O.
|
Uncertificated
|
100% of all shares
|
Uncertificated Security
|
|
NYF Poska Sp.z.o.o.
|
Uncertificated
|
100% of all shares
|
Uncertificated Security
|
Issuer
|
Original Principal Amount
|
Date
|
Maturity Date
|
Type of Investment
Property |
BE Aerospace, Inc.
|
$100,000,000
|
12/20/2007
|
12/20/08 with automatic 1 year extensions
|
Promissory Note
|
Issuer
|
Class of Interest
|
Certificate Numbers, if Applicable
|
Percentage of Class
Represented by Pledged LLC Interests |
Type of Investment
Property |
BEA Holding Services LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
Acurex, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
DMGI, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
Denton Jet Interiors, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
BEA Europe Holding LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
Maynard Precision, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
Modern Metals, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
Nelson Aero Space, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
T.L. Windust Machine, LLC
|
Units
|
n/a
|
100%
|
Membership Interest
|
|
(i)
|
in the case of the Collateral Agent, at the address specified in Section 2 (e) hereof;
|
CREDIT PARTY:
|
[CREDIT PARTY NAME]
|
|
By:
|
||
Name: | ||
Title: |
COLLATERAL AGENT:
|
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
|
|
By:
|
||
Name: | ||
Title: |
ISSUER:
|
[ISSUER NAME]
|
|
By:
|
||
Name: | ||
Title: |
CREDIT PARTY:
|
[CREDIT PARTY NAME]
|
|
By:
|
||
Name: | ||
Title: |
COLLATERAL AGENT:
|
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
|
|
By:
|
||
Name: | ||
Title: |
SECURITIES INTERMEDIARY:
|
[SECURITIES INTERMEDIARY NAME]
|
|
By:
|
||
Name: | ||
Title: |
Name
|
Office(s)
|
Signature
|
Thomas P. McCaffrey
|
Senior Vice President and
Chief Financial Officer
|
|
Ryan M. Patch
|
Vice President-Law,
General Counsel and
Secretary
|
|
Stephen R. Swisher
|
Vice President-Finance,
Controller and Assistant Secretary |
|
Eric J. Wesch
|
Vice President-Finance,
Treasurer and Assistant Secretary |
|
(SEAL)
|
B/E AEROSPACE, INC.
|
|
By:
|
||
Ryan M. Patch | ||
Secretary |
|
|
|
By:
|
||
Eric J. Wesch | ||
Assistant Secretary | ||
Dated: August ____, 2012 |
|
B/E AEROSPACE, INC.
|
By:
|
|
Name: Thomas P. McCaffrey | |
Title: Senior Vice President |
|
|
By:
|
|
Name: Ryan M. Patch | |
Title: Secretary |
1
|
Assignor[s]:
|
2
|
Assignee[s]:
|
||
|
|||
[for each Assignee, indicate Affiliate of [identify Lender]]
|
|||
3
|
Borrower[s]: B/E Aerospace, Inc.
|
||
4
|
Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Second Amended and Restated Credit Agreement
|
||
5
|
Second Amended and Restated Credit Agreement: Second Amended and Restated Credit Agreement dated as of August 3, 2012 (as amended, restated, modified or supplemented from time to time and including any agreement extending the maturity of, refinancing or otherwise amending, amending and restating or otherwise modifying or restructuring all or any portion of the obligations of the Company under such agreement or any successor agreement) among, the Borrower, the banks and other lending institutions from time to time party thereto (each a “Lender” and, collectively, the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, as the Issuing Lender and as the Swing Line Lender (together with its successor or successors in each such capacity, the “Administrative Agent” and the “Swing Line Lender”, respectively), and any syndication agents and documentation agents named therein.
|
||
6
|
Assigned Interest:
|
Assignor[s]6
|
Assignee[s]7
|
Facility Assigned8
|
Aggregate Amount of Commitment/Loans for all Lenders9
|
Amount of Commitment/Loans Assigned
|
Percentage Assigned of Commitment/Loans10
|
CUSIP Number
|
$
|
$
|
%
|
||||
$
|
$
|
%
|
||||
$
|
$
|
%
|
||||
$
|
$
|
%
|
7
|
[Trade Date:
|
]11
|
ASSIGNOR:
|
|||
[NAME OF ASSIGNOR]
|
|||
By:
|
|||
Title:
|
|||
ASSIGNEE:
|
|||
[NAME OF ASSIGNEE]
|
|||
By:
|
|||
Title:
|
|||
[Consented to and]12 Accepted:
|
|||
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
|
|||
By:
|
|||
Title:
|
|||
B/E AEROSPACE, INC.:13
|
|||
By:
|
|||
Title:
|
Page
|
||
ARTICLE I
DEFINITIONS
|
||
Section 1.01
|
Definitions
|
4
|
Section 1.02
|
Interpretation
|
8
|
ARTICLE II
CONVEYANCE OF ENCUMBERED PROPERTY
|
||
Section 2.01
|
Grant
|
9
|
Section 2.02
|
Revolving Credit Loans, Swingline Loans and Letters of Credit
|
9
|
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MORTGAGOR
|
||
Section 3.01
|
Title.
|
10
|
Section 3.02
|
Compliance with Law
|
11
|
Section 3.03
|
No Litigation
|
11
|
Section 3.04
|
Taxes Paid
|
11
|
Section 3.05
|
Condition of Improvements.
|
11
|
Section 3.06
|
Options
|
12
|
Section 3.07
|
Second Amended and Restated Credit Agreement.
|
12
|
Section 3.08
|
Payment of Taxes, Liens and Charges.
|
13
|
Section 3.09
|
Payment of Closing Costs
|
13
|
Section 3.10
|
Alterations and Waste; Plans; Use.
|
13
|
Section 3.11
|
Insurance
|
14
|
Section 3.12
|
Casualty; Restoration of Casualty Damage
|
15
|
Section 3.13
|
Condemnation/Eminent Domain
|
15
|
Section 3.14
|
Assignment of Leases and Rents.
|
16
|
Section 3.15
|
Restrictions on Transfers and Encumbrances
|
17
|
Section 3.16
|
Security Agreement
|
18
|
Section 3.17
|
Filing and Recording
|
18
|
Section 3.18
|
Further Assurances
|
18
|
Section 3.19
|
Additions to Encumbered Property
|
18
|
Section 3.20
|
No Claims Against the Mortgagee
|
19
|
Section 3.21
|
Environmental.
|
19
|
Section 3.22
|
Maintenance of Encumbered Property
|
19
|
ARTICLE IV
DEFAULTS AND REMEDIES
|
||
Section 4.01
|
Events of Default
|
19
|
Section 4.02
|
Demand for Payment
|
19
|
Section 4.03
|
Rights to Take Possession, Operate and Apply Revenues.
|
20
|
Section 4.04
|
Right to Cure the Mortgagor’s Failure to Perform
|
21
|
Section 4.05
|
Right to a Receiver
|
21
|
Section 4.06
|
Foreclosure and Sale.
|
21
|
Section 4.07
|
Other Remedies.
|
22
|
Section 4.08
|
Application of Sale of Proceeds and Rents.
|
23
|
Section 4.09
|
The Mortgagor as Tenant Holding Over
|
24
|
Section 4.10
|
Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
|
24
|
Section 4.11
|
Discontinuance of Proceedings
|
25
|
Section 4.12
|
Suits to Protect the Encumbered Property
|
25
|
Section 4.13
|
Filing Proofs of Claim
|
25
|
Section 4.14
|
Possession by the Mortgagee
|
25
|
Section 4.15
|
Waiver.
|
25
|
Section 4.16
|
Remedies Cumulative
|
26
|
ARTICLE V
MISCELLANEOUS
|
||
Section 5.01
|
Partial Invalidity
|
26
|
Section 5.02
|
Notices
|
26
|
Section 5.03
|
Successors and Assigns
|
27
|
Section 5.04
|
Mortgagee.
|
27
|
Section 5.05
|
Satisfaction and Cancellation.
|
29
|
Section 5.06
|
Other Credit Documents
|
29
|
Section 5.07
|
Subrogation
|
30
|
Section 5.08
|
Mortgagee Powers
|
30
|
Section 5.09
|
Enforceability of Mortgage
|
30
|
Section 5.10
|
Amendments
|
30
|
Section 5.11
|
Applicable Law
|
31
|
Section 5.12
|
Waiver of Jury Trial
|
31
|
Local Law Provisions.
|
31
|
(i)
|
all of the Mortgagor’s right, title and interest in and to the parcel or parcels of land located in _______________ County, _____________________ as more particularly described on Exhibit A hereto (the “Land”), together with any after-acquired estate of the Mortgagor in the Land, and together with all rights appurtenant thereto, including without limitation, all strips and gores within or adjoining the Land, all estate, right, title, interest, claim or demand of the Mortgagor in the streets, roads, sidewalks, alleys and ways adjacent thereto (whether or not vacated and whether public or private and whether open or proposed), all easements over adjoining land granted by any easement agreements, covenants or restrictive agreements, all of the tenements, hereditaments, easements, reciprocal easement agreements, rights pursuant to any trackage agreement, rights to the use of common drive entries, rights-of-way and other rights, privileges and appurtenances thereunto belonging or in any way pertaining thereto, all reversions, remainders, dower and right of dower, curtesy and right of curtesy, all of the air space and right to use air space above such property, all transferable development rights arising therefrom or transferred thereto, all water and water rights and water rights applications (whether riparian, littoral, appropriative or otherwise, and whether or not appurtenant), all pumps, pumping plants, pipes, flumes and ditches thereunto appertaining, all rights and ditches for irrigation, all utility rights, sewer rights, and shares of stock evidencing the same, all oil, gas and other minerals and mineral substances (which term shall include all gypsum, anhydrite, coal, lignite, hydrocarbon or other fossil materials or substances, fissionable materials or substances and all other minerals of any kind or character, whether gaseous, liquid or hard minerals, whether similar or dissimilar to those named, whether now or hereafter found to exist and whether associated with the surface or mineral estate) in, on or under the Land or produced, saved or severed from the Land, all mineral, mining, gravel, oil, gas, hydrocarbon rights and other rights to produce or share in the production of anything related to such property, all drainage, crop, timber, agricultural, and horticultural rights with respect to such property, and all other appurtenances appurtenant to such property, including without limitation, any now or hereafter belonging or in any way appertaining thereto, and all claims or demands of the Mortgagor, either at law or in equity, in possession or expectancy, now or hereafter acquired, of, in or to the same (the Land and all of the foregoing being sometimes referred to herein collectively as the “Premises”);
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||
(ii)
|
all of the Mortgagor’s right, title and interest in and to all buildings, improvements, fixtures and other structures or improvements of any kind now or hereafter erected or located upon the Land, including, but not limited to, all building materials, water, sanitary and storm sewers, drainage, electricity, steam, gas, telephone and other utility facilities, parking areas, roads, driveways, walks and other site improvements; and all additions and betterments thereto and all renewals, substitutions and replacements thereof, owned or to be owned by the Mortgagor or in which the Mortgagor has or shall acquire an interest, to the extent of the Mortgagor’s interest therein, now or hereafter erected or located upon the Land (collectively, the “Improvements”);
|
||
(iii)
|
all of the Mortgagor’s right, title and interest in and to the following (collectively, the “Personal Property”):
|
||
1)
|
all personal property and fixtures of every kind and nature whatsoever which are now or hereafter located on, attached to, incorporated in (regardless of where located) or affixed to the Premises or the Improvements or used or useful in connection with the ownership, construction, maintenance, repair, reconstruction, alteration, addition, improvement, operation, mining, use or occupancy of the Premises or the Improvements, including, without limitation, all goods, inventory, construction materials, equipment, mining equipment, tools, furniture, furnishings, fittings, fixtures, supplies, computers and computer programs, carpeting, draperies, blinds, window treatments, racking and shelving systems, heating, lighting, plumbing, ventilating, air conditioning, refrigerating, incinerating and/or compacting plants, systems and equipment, elevators, escalators, appliances, stoves, ranges, refrigerators, vacuum, window washing and other cleaning and building service systems, call systems, sprinkler systems and other fire prevention and extinguishing apparatus and materials, cables, antennae, pipes, ducts, conduits, machinery, apparatus, motors, dynamos, engines, compressors, generators, boilers, stokers, furnaces, pumps, tanks, appliances, garbage systems and pest control systems and all of Mortgagor’s present and future “goods”, “equipment” and “fixtures” (as such terms are defined in the UCC) and other personal property, including without limitation any such personal property and fixtures which are leased, and all repairs, attachments, betterments, renewals, replacements, substitutions and accessions thereof and thereto; and
|
||
2)
|
all general intangibles now owned or hereafter acquired by the Mortgagor and relating to the design, development, operation, management and use of the Premises or the Improvements, including, but not limited to, all contract rights, trademarks, trade names, logos, symbols, books, records, chattel paper, claims, deposits, accounts, escrows and other rights relating to the name and style under which the Premises and the Improvements are operated;
|
||
(iv)
|
all approvals, authorizations, building permits, certificates of occupancy, zoning variances, use permits, certifications, entitlements, exemptions, franchises, licenses, orders, variances, plat plan approvals, environmental approvals, air pollution authorities to construct and permits to operate, sewer and waste discharge permits, national pollutant discharge elimination system permits, water permits, zoning and land use entitlements and all other permits, whether now existing or hereafter issued to or obtained by or on behalf of the Mortgagor, that relate to or concern in any way the Premises or the Improvements and are given or issued by any governmental or quasi-governmental authority, whether now existing or hereafter created (as the same may be amended, modified, renewed or extended from time to time, and including all substitutions and replacements therefor), all rights under and pursuant to all construction, service, engineering, consulting, management, access, supply, leasing, architectural and other similar contracts relating in any way to the design, construction, management, operation, occupancy and/or use of the Premises and Improvements, all rights under all purchase agreements, sales agreements, option contracts, land contracts and contracts for the sale of oil, gas and other minerals or any of them, that relate to or concern in any way the Premises or the Improvements, all abstracts of title, architectural, engineering or construction drawings, plans, specifications, operating manuals, computer programs, computer data, maps, surveys, soil tests, feasibility studies, appraisals, environmental studies, engineering reports and similar materials relating to any portion of or all of the Premises and Improvements, and all payment and performance bonds or warranties or guarantees relating to the Premises or the Improvements, all to the extent assignable (collectively, the “Permits, Plans and Contracts”);
|
||
(v)
|
the Mortgagor’s interest in and rights under all leases, occupancy agreements or licenses (under which the Mortgagor is landlord or licensor) and subleases (under which the Mortgagor is sublandlord), concession, franchise, management, mineral or other agreements relating to the use or occupancy of the Premises or the Improvements or any part thereof for any purpose, or the extraction or taking of any gas, oil, water or other minerals from the Premises, whether now or hereafter existing or entered into (including any use or occupancy arrangements created pursuant to Section 365(d) of the Bankruptcy Code or otherwise in connection with the commencement or continuance of any bankruptcy, reorganization, arrangement, insolvency, dissolution, receivership or similar proceedings, or any assignment for the benefit of creditors, in respect of any tenant or occupant of any portion of the Premises or the Improvements), and all guaranties thereof and all amendments, modifications, supplements, extensions or renewals thereof (collectively, the “Leases”), and all rents, issues, profits, revenues, charges, fees, receipts, royalties, proceeds from the sale of oil, gas and/or other minerals (whether gaseous, liquid or hard minerals, whether similar or dissimilar to those named and whether associated with the surface or mineral estate), accounts receivable, cash or security deposits and other deposits (subject to the prior right of the tenants making such deposits) and income, and other benefits now or hereafter derived from any portion of the Premises or the Improvements or the use or occupancy thereof (including any payments received pursuant to Section 502(b) of the Bankruptcy Code or otherwise in connection with the commencement or continuance of any bankruptcy, reorganization, arrangement, insolvency, dissolution, receivership or similar proceedings, or any assignment for the benefit of creditors, in respect of any tenant or other occupants of any portion of the Premises or the Improvements and all claims as a creditor in connection with any of the foregoing) and all payments of a similar nature, now or hereafter, including during any period of redemption, derived from the Premises or the Improvements or any other portion of the Encumbered Property and all proceeds from the cancellation, surrender, sale or other disposition of the Leases (collectively, the “Rents”);
|
||
(vi)
|
all of the Mortgagor’s right, title and interest in and to all refunds or rebates of real and personal property taxes or charges in lieu of taxes, heretofore or now or hereafter assessed or levied against all or any of the Premises, the Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, including interest thereon, and the right to receive the same, whether such refunds or rebates relate to fiscal periods before or during the term of this Mortgage;
|
||
(vii)
|
all of the Mortgagor’s right, title and interest in and to all insurance policies and the proceeds thereof, now or hereafter in effect with respect to all or any of the Premises, the Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, including, without limitation, any and all title insurance proceeds, and all unearned premiums and premium refunds, accrued, accruing or to accrue under such insurance policies, and all awards made for any taking of or damage to all or any of the Premises, the Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, by eminent domain, or by any purchase in lieu thereof, and all awards resulting from a change of grade of streets or for severance damages, and all other proceeds of the conversion, voluntary or involuntary, of all or any of the Premises, Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, into cash or other liquidated claims, and all judgments, damages, awards, settlements and compensation (including interest thereon) heretofore or hereafter made to the present and all subsequent owners of the Premises, Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, or any part thereof for any injury to or decrease in the value thereof for any reason;
|
||
(viii)
|
all of the Mortgagor’s right, title and interest in and to the following:
|
||
1)
|
all right, in the name and on behalf of the Mortgagor, to appear in and defend any action or proceeding brought with respect to all or any of the Premises, Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, and to commence any action or proceeding to protect the interest of the Mortgagor in all or any of the Premises, Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts;
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||
2)
|
all right and power to encumber further all or any of the Premises, Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts, or any part thereof;
|
||
3)
|
all rights, titles, interests, estates or other claims, both in law and in equity, which the Mortgagor now has or may hereafter acquire in any of the Premises, the Improvements, the Personal Property, the Leases, the Rents or the Permits, Plans and Contracts, or in and to any greater estate in all or any of the Premises, the Improvements, the Personal Property, the Leases, the Rents and the Permits, Plans and Contracts; and
|
||
4)
|
all property hereafter acquired or constructed by the Mortgagor of the type described above which shall forthwith, upon acquisition or construction thereof by the Mortgagor and without any act or deed by any party, become subject to the lien and security interest of this Mortgage as if such property were now owned by the Mortgagor and were specifically described in this Mortgage and were specifically conveyed or encumbered hereby; and
|
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(ix)
|
all accessions, additions or attachments to, and proceeds or products of, any of the foregoing.
|
||
(a)
|
The Mortgagor has good, marketable, insurable, indefeasible, fee simple title to the Land and the Improvements. The Mortgagor has good and marketable title to, or valid leasehold interests in, all of the other Encumbered Property. This Mortgage is and will remain a valid and enforceable first lien on, and security interest in, the Encumbered Property subject to no Liens other than the exceptions and encumbrances set forth in Exhibit B attached hereto (collectively, the “Permitted Encumbrances”).
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||
(b)
|
Except as set forth on Exhibit C attached hereto, there are no Leases, track agreements, easement agreements, access agreements, management contracts, pipeline agreements or other contracts or agreements affecting any portion of the Encumbered Property (collectively, the “Material Agreements”). Each Material Agreement is in full force and effect. Except as set forth on Exhibit C attached hereto, the Mortgagor has not given, nor has it received, any notice of default with respect to any obligation under any Material Agreement. Except as set forth on Exhibit C attached hereto, no Material Agreement is subject to any Lien, other than this Mortgage and the Permitted Encumbrances.
|
||
(c)
|
The Mortgagor has good and lawful right and full power and authority to encumber or grant a security interest in the Encumbered Property. The possession of the Encumbered Property has been peaceful and undisturbed and title hereto has not been disputed or questioned to the best of the Mortgagor’s knowledge. The Mortgagor will forever warrant, defend and preserve its title to the Encumbered Property, the rights of the Mortgagee therein under this Mortgage and the validity and priority of the lien of this Mortgage thereon against the claims of all persons and parties except those having rights under the Permitted Encumbrances to the extent of those rights.
|
||
(d)
|
This Mortgage, when duly recorded in the appropriate public records and when financing statements are duly filed in the appropriate public records, will create a valid, perfected and enforceable first lien upon and security interest in all the Encumbered Property (subject to the Permitted Encumbrances). There will be no defenses or offsets to this Mortgage or to any of the Finance Obligations for so long as any portion of the Finance Obligations is outstanding.
|
||
(e)
|
The Permitted Encumbrances do not and will not materially and adversely affect (i) the ability of the Mortgagor to perform its obligations under this Mortgage and the other Credit Documents to which it is a party or (ii) the use of the Encumbered Property for the use currently being made thereof, the operation of the Encumbered Property as currently being operated or the value of the Encumbered Property.
|
||
(f)
|
The Encumbered Property has adequate rights of access to public ways and is served by adequate water, sewer, sanitary sewer and storm drain facilities. Except to the extent that non-compliance would not interfere in any material respect with Mortgagor’s use of the Encumbered Property all public utilities necessary to the continued use and enjoyment of the Encumbered Property as presently used and enjoyed are located in the public right-of-way abutting the Encumbered Property, and all such utilities are connected so as to serve the Encumbered Property without passing over other property. Except to the extent that non-compliance would not interfere in any material respect with Mortgagor’s use of the Encumbered Property all roads necessary for the full utilization of the Encumbered Property for its current purpose have been completed and dedicated to public use and accepted by all governmental authorities or are the subject of access easements for the benefit of the Encumbered Property.
|
||
(g)
|
The Premises consists of a single tax lot or multiple tax lots, no portion of said tax lot(s) covers property other than the Premises or a portion of the Premises and no portion of the Premises lies in any other tax lot. The Premises consists of one or more legally subdivided lots.
|
||
(h)
|
There are no pending or, to the knowledge of the Mortgagor, proposed special or other assessments for public improvements or otherwise affecting the Encumbered Property, as to which any installments are presently due nor, to the knowledge of the Mortgagor, are there any contemplated improvements to the Encumbered Property that may result in such special or other assessments.
|
||
(i)
|
The Encumbered Property is either (i) not located in a flood hazard area as defined by the Federal Insurance Administration or (ii) is the subject of appropriate flood insurance.
|
||
(j)
|
The Premises are either (i) not located in Zone 3 or Zone 4 of the "Seismic Zone Map of the U.S", or (ii) the subject of appropriate earthquake insurance.
|
||
(k)
|
All parties furnishing labor and materials have been paid in full and, except for such liens or claims insured against by the policy of title insurance to be issued in connection with this Mortgage, there are no mechanics', laborers' or materialmen's liens or claims outstanding for work, labor or materials affecting the Encumbered Property, whether prior to, equal with or subordinate to the lien of this Mortgage.
|
||
(l)
|
The Encumbered Property is not subject to any Leases other than the Leases described in Schedule 3.01(l).
|
||
(a)
|
The Encumbered Property has not been damaged by fire, water, wind or other cause of loss or any previous damage to the Encumbered Property has been fully restored.
|
(b)
|
No part of any property subject to this Mortgage has been taken in condemnation or other like proceeding nor is any proceeding pending, threatened or known to be contemplated for the partial or total condemnation or taking of the Encumbered Property, other than a “de minimis” partial taking (eg a taking for road-widening purposes) that would have no affect on the value of the premises or Mortgagor’s ability to use same.
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|
(a)
|
This Mortgage is given pursuant to the Second Amended and Restated Credit Agreement. Each and every term and provision of the Second Amended and Restated Credit Agreement (except for the governing law and submissions to jurisdiction provisions thereof), including the rights, remedies, obligations, covenants, conditions, agreements, indemnities, representations and warranties of the parties thereto shall be considered as if a part of this Mortgage.
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(b)
|
If any remedy or right of the Mortgagee pursuant hereto is acted upon by the Mortgagee or if any actions or proceedings (including any bankruptcy, insolvency or reorganization proceedings) are commenced in which the Mortgagee is made a party and is obliged to defend or uphold or enforce this Mortgage or the rights of the Mortgagee hereunder or the terms of any Lease, or if a condemnation proceeding is instituted affecting the Encumbered Property, the Mortgagor will pay all sums, including reasonable attorneys’ fees and disbursements, actually incurred (not as imposed by statute) by the Mortgagee related to the exercise of any remedy or right of the Mortgagee pursuant hereto or for the expense of any such action or proceeding together with all statutory or other costs, disbursements and allowances, interest thereon from the date of demand for payment thereof at a rate per annum applicable to Base Rate Loans under the Second Amended and Restated Credit Agreement (regardless of whether any Revolving Credit Commitments are then outstanding) plus 2.00% (the “Default Interest Rate”), and such sums and the interest thereon shall, to the extent permissible by law, be a lien on the Encumbered Property prior to any right, title to, interest in or claim upon the Encumbered Property attaching or accruing subsequent to the recording of this Mortgage and shall be secured by this Mortgage to the extent permitted by applicable law.
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(c)
|
Any payment of amounts due under this Mortgage not made on or before the due date for such payments shall accrue interest daily without notice from the due date until paid at the Default Interest Rate, and such interest at the Default Interest Rate shall be immediately due upon demand by the Mortgagee.
|
|
(a)
|
The Mortgagor will pay and discharge from time to time prior to the time when the same shall become delinquent, and before any interest or penalty accrues thereon or attaches thereto, all taxes of every kind and nature, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents, all vault charges, and all other public charges, and all service charges, common area charges, private maintenance charges, utility charges and all other private charges, whether of a like or different nature, imposed upon or assessed against the Encumbered Property or any part thereof or upon the Rents from the Encumbered Property or arising in respect of the occupancy, use or possession thereof.
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(b)
|
In the event of the passage of any state, Federal, municipal or other governmental law, order, rule or regulation subsequent to the date hereof (i) deducting from the value of real property for the purpose of taxation any lien or encumbrance thereon or in any manner changing or modifying the laws now in force governing the taxation of this Mortgage or debts secured by mortgages or deeds of trust (other than laws governing income, franchise and similar taxes generally) or the manner of collecting taxes thereon and (ii) imposing a tax to be paid by the Mortgagee, either directly or indirectly, on this Mortgage, the Security Agreement or any other Credit Documents or to require an amount of taxes to be withheld or deducted therefrom, the Mortgagor will promptly notify the Mortgagee of such event. In such event the Mortgagor shall (i) enter into such further instruments as may be reasonably necessary or desirable to obligate the Mortgagor to make any applicable additional payments, and (ii) the Mortgagor shall make all such additional payments.
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(c)
|
If required by the Mortgagee, the Mortgagor shall pay the Mortgagee monthly, together with and in addition to the payments of principal of, premium, if any, and interest on any Finance Obligation, an amount determined by the Mortgagee to be necessary to enable the Mortgagee to pay all Impositions one month before it becomes due. If the total payments made to the Mortgagee pursuant to the preceding sentence are less than the amount required to pay any Imposition one month before it becomes due, the Mortgagor shall pay the Mortgagee, on 10 days notice, the amount necessary to make up such deficiency. If there is an excess of such payments, the excess will reduce subsequent payments required under this Section 3.08. The Mortgagee shall not be required to pay interest on any sums held pursuant to this Section 3.08. If an Event of Default has occurred, the Mortgagee may at its option apply any amounts received pursuant to this Section 3.08 to the payment of the Finance Obligations in such order as the Mortgagee may elect.
|
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(a)
|
No Improvements will be (i) altered in any material respect or (ii) demolished or (iii) removed in whole or material part by the Mortgagor. The Mortgagor will maintain and keep the Encumbered Property in good condition and repair and will not commit any waste on the Encumbered Property or make any alteration to, or change in the use of, the Encumbered Property that will diminish the utility thereof for the operation of the business conducted thereon or increase the risk of fire or other hazard and in no event shall any such alteration or change be contrary to the terms of any insurance policy required to be kept pursuant to Section 3.11 hereof.
|
(b)
|
To the extent the same exist on the date hereof or are obtained in connection with future permitted alterations, the Mortgagor shall maintain a complete set of final plans, specifications, blueprints and drawings for the Improvements either at the Encumbered Property or in a particular office at the headquarters of the Mortgagor to which the Mortgagee shall have access during normal business hours upon reasonable advance written notice.
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(c)
|
The Mortgagor shall cause the Premises and the Improvements to be used in compliance with all existing and future laws, codes, ordinances, rules, regulations, orders and decrees of governmental authorities and courts having jurisdiction over the Encumbered Property or the Mortgagor and the requirements of all Permits. The Mortgagor shall promptly notify the Mortgagee of any proposed zoning reclassification, variance, conditional or special use permit, subdivision plat or annexation affecting the Land. The Mortgagor shall at all times comply with, and is currently in compliance with, all of its obligations under all Material Agreements and under all other recorded restrictions, conditions, easements and covenants (“Restrictive Covenants”) encumbering the Land and shall take commercially reasonable efforts to enforce its rights under all Restrictive Covenants encumbering other property for the benefit of the Land and/or the Improvements. If the Mortgagor receives any notice (whether oral or written) that any Material Agreement or Restrictive Covenant has been violated, then the Mortgagor shall promptly notify the Mortgagee and take such steps as the Mortgagee may reasonably require to correct such violation.
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(i)
|
Worker’s Compensation Insurance providing statutory limits of liability and Employers’ Liability Insurance with a limit of liability not less than the underlying limit required by the Umbrella Excess Liability Policy, as described in subsection (c) below.
|
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(ii)
|
Commercial General Liability Insurance for Bodily Injury and Property Damage with coverages extended and endorsements to the policy as stated below with a limit of liability not less than the underlying limit required by the Umbrella Excess Liability Policy, as described in subsection (c) below. The Umbrella Excess Liability Policy shall be in addition to the required underlying limits. The coverages to be included in this policy are: (i) Operations — Premises Liability, (ii) Independent Contractors Liability, (iii) Contractual Liability covering the Mortgagor’s obligations as set forth herein, in the Credit Documents, (iv) Personal Injury Liability extending to claims arising from employees of Mortgagor and (v) Products and completed operations hazards.
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(iii)
|
Excess Umbrella Liability Insurance coverage with a limit of liability of not less than $10,000,000 per occurrence.
|
|
(iv)
|
Property insurance with coverage extended to the hazards described below on the Premises, Improvements and Personal Property in an amount not less than full replacement cost thereof. These policies shall provide that no deduction will be made for depreciation and shall contain no co-insurance penalty. The coverage shall be extended to the following: (i) Fire, extended (including vandalism and malicious mischief) and all risk coverage, (ii) Windstorm, hurricane and hail damage, (iii) Theft loss, (iv) Flood and (v) Business Interruptions.
|
(a)
|
The Mortgagor hereby irrevocably, unconditionally and absolutely grants, transfers and assigns to the Mortgagee all of its right, title and interest in and to all Leases, together with any and all extensions and renewals thereof for purposes of securing and discharging the Finance Obligations. The Mortgagor has not assigned or executed any assignment of, and will not assign or execute any assignment of, any Lease or its respective Rents to anyone other than to the Mortgagee.
|
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(b)
|
Without the Mortgagee’s prior written consent, the Mortgagor will not (i) enter into, modify, amend, terminate or consent to the cancellation or surrender of any Lease if such entrance, modification, amendment, termination or consent would, in the reasonable judgment of the Mortgagee, be adverse in any material respect to the Secured Parties, the value of the Encumbered Property or the liens and security interests created by this Mortgage or (ii) consent to an assignment of any tenant’s interest in any Lease or to a subletting thereof covering a material portion of the Encumbered Property, except, in each case, as may be permitted by this Mortgage or the other Credit Documents.
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(c)
|
The Mortgagor has assigned and transferred to the Mortgagee all of the Mortgagor’s right, title and interest in and to the Rents now or hereafter arising, it being intended that this assignment establish, subject to Section 3.14(d) below, an absolute transfer and assignment of all Rents and all Leases to the Mortgagee and not merely to grant a security interest therein. Such assignment to the Mortgagor shall not be construed to bind the Mortgagee to the performance of any of the covenants, conditions or provisions contained in any Lease or otherwise impose any obligation upon the Mortgagee. Notwithstanding the foregoing, the Mortgagor shall have the license and right, subject to automatic revocation as provided in Section 3.14(d) below, to operate and rent, lease or let all or any portion of the Encumbered Property and to collect, but not more than one month prior to accrual, all of the Rents. As provided in Section 3.14(d) below, the license granted by this Section 3.14(c) is subject to automatic revocation and thereafter the Mortgagee may, in the Mortgagor’s name and stead (with or without first taking possession of any of the Encumbered Property personally or by receiver as provided herein) operate the Encumbered Property and rent, lease or let all or any portion of any of the Encumbered Property to any party or parties at such rental and upon such terms as the Mortgagee shall, in its sole discretion, determine, and may collect and have the benefit of all of such Rents arising from or accruing at any time thereafter or that may thereafter become due.
|
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(d)
|
As long as no Event of Default has occurred or is continuing, the license granted under Section 3.14(c) above shall be effective and the Mortgagee shall not exercise any of its rights under Section 3.14(c) above, and the Mortgagor shall receive and collect the Rents accruing under any Lease pursuant to the revocable license granted therein; but upon the occurrence of any Event of Default, the license granted under Section 3.14(c) above shall be deemed to be automatically revoked and shall terminate automatically without notice and the Mortgagee shall be entitled to all of the Rents without the necessity of the Mortgagee’s taking any action whatsoever, and the Rents shall thereupon be deemed to be cash collateral for all purposes, including without limitation for purposes of Section 363 of the Bankruptcy Code. Upon the occurrence and during the continuance of any Event of Default, the Mortgagee may receive and collect all Rents and enter upon the Premises and Improvements through its officers, agents, employees or attorneys for such purpose and for the operation and maintenance thereof. Upon the occurrence and during any continuance of an Event of Default, the Mortgagor hereby irrevocably authorizes and directs each tenant, if any, and each successor, if any, to the interest of any tenant under any Lease, respectively, to rely upon any notice of a claimed Event of Default sent by the Mortgagee to any such tenant or any of such tenant’s successors in interest, and thereafter to pay Rents to the Mortgagee without any obligation or right to inquire as to whether an Event of Default actually exists and even if notice to the contrary is received from the Mortgagor, who shall have no right or claim against any such tenant or successor in interest for any such Rents so paid to the Mortgagee. Each tenant or any of such tenant’s successors in interest from whom the Mortgagee or any officer, agent, attorney or employee of the Mortgagee shall have collected any Rents, shall be authorized to pay Rents to the Mortgagor only after such tenant or any of such tenant’s successors in interest shall have received written notice from the Mortgagee that the Event of Default is no longer continuing, which notice the Mortgagee shall be obligated to give if the Mortgagee determines in its reasonable discretion that such Event of Default is no longer continuing (or if ordered by a court or arbitrator with jurisdiction), unless and until a further notice of an Event of Default is given by the Mortgagee to such tenant or any of such tenant’s successors in interest.
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|
(e)
|
The Mortgagee will not become a mortgagee in possession so long as it does not enter and take actual possession of the Encumbered Property. In addition, the Mortgagee shall not be responsible or liable for performing any of the obligations of the landlord under any Lease, for any waste by any tenants, or others, for any dangerous or defective conditions of any of the Encumbered Property, for negligence in the management, upkeep, repair or control of any of the Encumbered Property or any other act or omission by any other person.
|
|
(f)
|
The Mortgagor shall furnish to the Mortgagee, no more frequently than twice in any twelve (12) month period, within thirty (30) days after a request by the Mortgagee to do so, a written statement containing the names of all tenants, subtenants and concessionaires of the Premises or Improvements, the terms of any Lease, the space occupied and the rentals or license fees payable thereunder.
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|
(g)
|
If an Event of Default occurs, and if there is any applicable law requiring the Mortgagee to take actual or constructive possession of the Premises (or some action equivalent thereto, such as securing the appointment of a receiver) in order for the Mortgagee to “perfect” or “activate” its rights and remedies as set forth herein, the Mortgagor hereby waives the benefits of any such laws to the maximum extent allowable.
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|
(a)
|
If an Event of Default shall occur and be continuing, the Mortgagor shall, upon demand of the Mortgagee, forthwith surrender to the Mortgagee actual possession of the Encumbered Property and, if and to the extent permitted by applicable law, the Mortgagee itself, or by such officers or agents as it may appoint, may then enter and take possession of all the Encumbered Property with or without the appointment of a receiver or an application therefor, exclude the Mortgagor and its agents and employees wholly therefrom, and have access to the books, papers and accounts of the Mortgagor.
|
|
(b)
|
If the Mortgagor shall for any reason fail to surrender or deliver the Encumbered Property or any part thereof after such demand by the Mortgagee, the Mortgagee may obtain a judgment or decree conferring upon the Mortgagee the right to immediate possession or requiring the Mortgagor to deliver immediate possession of the Encumbered Property to the Mortgagee, to the entry of which judgment or decree the Mortgagor hereby specifically consents. The Mortgagor will pay to the Mortgagee, upon demand, all reasonable expenses of obtaining such judgment or decree, including compensation to the Mortgagee’s attorneys (for reasonable fees actually incurred (not as imposed by statute)) and agents with interest thereon at the Default Interest Rate; and all such expenses and compensation shall, until paid, be secured by this Mortgage.
|
|
(c)
|
If an Event of Default shall occur and be continuing, the Mortgagee may hold, store, use, operate, manage and control the Encumbered Property, conduct the business thereof and, from time to time, (i) make all necessary, proper and reasonable maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon, (ii) purchase or otherwise acquire additional fixtures, personalty and other property, (iii) insure or keep the Encumbered Property insured, (iv) manage and operate the Encumbered Property and exercise all the rights and powers of the Mortgagor to the same extent as the Mortgagor could in its own name or otherwise with respect to the same or (v) enter into any and all agreements with respect to the exercise by others of any of the powers herein granted to the Mortgagee, all as may from time to time be directed or determined by the Mortgagee to be in its best interest and the Mortgagor hereby appoints the Mortgagee as its true and lawful attorney-in-fact and agent, for the Mortgagor and in its name, place and stead, in any and all capacities, to perform any of the foregoing acts. Regardless of whether or not the Mortgagee has entered or taken possession, the Mortgagee may collect and receive all the Rents, issues, profits and revenues from the Encumbered Property, including those past due as well as those accruing thereafter, and, after deducting (i) all expenses of taking, holding, managing and operating the Encumbered Property (including compensation for the services of all persons employed for such purposes), (ii) the costs of all such maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and other similar charges as the Mortgagee may at its option pay, (v) other proper charges upon the Encumbered Property or any part thereof and (vi) the compensation, expenses and disbursements of the attorneys and agents of the Mortgagee, the Mortgagee shall apply the remainder of the moneys and proceeds so received first to the payment of the Mortgagee for the payment in full and satisfaction of the Finance Obligations, and second, if there is any surplus, to the Mortgagor, subject to the entitlement of others thereto under applicable law.
|
|
(d)
|
Whenever, before any sale of the Encumbered Property under Section 4.06 hereof, all Finance Obligations that are then due shall have been paid and all Events of Default fully cured, the Mortgagee will surrender possession of the Encumbered Property back to the Mortgagor, its successors or assigns. The same right of taking possession shall, however, arise again if any subsequent Event of Default shall occur and be continuing.
|
|
(a)
|
If an Event of Default shall occur and be continuing, the Mortgagee may elect to sell the Encumbered Property or any part of the Encumbered Property by exercise of the power of foreclosure or of sale granted to the Mortgagee by applicable law, this Mortgage or any other Collateral Document. In such case, the Mortgagee may commence a civil action to foreclose this Mortgage, in accordance with applicable law, to satisfy any Secured Obligation. The Mortgagee or an officer appointed by a judgment of foreclosure to sell the Encumbered Property, may sell all or such parts of the Encumbered Property as may be chosen by the Mortgagee at the time and place of sale fixed by it in a notice of sale, either as a whole or in separate lots, parcels or items as the Mortgagee shall deem expedient, and in such order as it may determine, at public auction to the highest bidder. The Mortgagee or an officer appointed by a judgment of foreclosure to sell the Encumbered Property may postpone any foreclosure or other sale of all or any portion of the Encumbered Property by public announcement at such time and place of sale, and from time to time as permitted by applicable law thereafter may postpone such sale by public announcement or subsequently noticed sale. Except as otherwise required by applicable law, without further notice, the Mortgagee or an officer appointed to sell the Encumbered Property may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Any person, including the Mortgagor or the Mortgagee or any designee or affiliate thereof, may purchase any portion of the Encumbered Property at such sale. If the Mortgagee, or any affiliate of the Mortgagee, is the highest bidder at any foreclosure sale, the Mortgagee may credit the Finance Obligations for the amount of the Mortgagee’s bid in lieu of a cash payment. Mortgagor authorizes and empowers the Mortgagee to execute and deliver to the purchaser or purchasers at any such foreclosure sale, good and sufficient deed(s) and/or bill(s) of sale of the Encumbered Property, or the part thereof foreclosed upon, all with covenants of general warranty binding on Mortgagor and Mortgagor’s successors and assigns.
|
(b)
|
The Encumbered Property may be sold subject to unpaid taxes and the Permitted Encumbrances, and after deducting all the costs, fees and expenses of the Mortgagee, including, without limitation, costs of evidence of title in connection with the sale, the Mortgagee or an officer that makes any sale shall apply the proceeds of sale in the manner set forth in Section 4.08 hereof.
|
|
(c)
|
Any foreclosure or other sale of less than the whole of the Encumbered Property or any defective or irregular sale made hereunder shall not exhaust the power of foreclosure or of sale provided for herein; and subsequent sales may be made hereunder until the Finance Obligations have been satisfied, or the entirety of the Encumbered Property has been sold.
|
|
(d)
|
If an Event of Default shall occur and be continuing, the Mortgagee may instead of, or in addition to, exercising the rights described in Section 4.06(a) above and either with or without entry or taking possession as herein permitted, proceed by a suit or suits in law or in equity or by any other appropriate proceeding or remedy (i) to specifically enforce payment of some or all of the terms of the Credit Documents or the performance of any term, covenant, condition or agreement of this Mortgage or any other right or (ii) to pursue any other remedy available to it, at law or in equity, all as the Mortgagee shall determine most effectual for such purposes.
|
(a)
|
In case an Event of Default shall occur and be continuing, the Mortgagee may also exercise, to the extent not prohibited by applicable law, any or all of the remedies available to a secured party under the UCC, including, to the extent not prohibited by applicable law, the following:
|
||
(i)
|
in the case of personal property, exercise those rights and remedies under Article V of the Security Agreement;
|
||
(ii)
|
to make such payments and do such acts as the Mortgagee may deem necessary to protect its security interest in the Personal Property including paying, purchasing, contesting or compromising any encumbrance, charge or lien that is prior or superior to the security interest granted hereunder, and, in exercising any such powers or authority, paying all expenses incurred in connection therewith; or
|
||
(iii)
|
to enter upon any or all of the Premises or Improvements to exercise the Mortgagee’s rights hereunder.
|
||
(b)
|
In connection with a sale of the Encumbered Property and the application of the proceeds of sale as provided in Section 4.08 of this Mortgage, the Mortgagee shall be entitled to enforce payment of and to receive up to the principal amount of the Finance Obligations, plus all other charges, payments and costs due under this Mortgage, and to recover a deficiency judgment for any portion of the aggregate principal amount of the Finance Obligations remaining unpaid, with interest.
|
(a)
|
After any foreclosure sale of all or any of the Encumbered Property, the Mortgagee shall receive the proceeds of sale, no purchaser shall be required to see to the application of the proceeds, and the Mortgagee shall apply the proceeds of the sale together with any Rents that may have been collected and any other sums that then may be held by the Mortgagee under this Mortgage as follows:
|
FIRST, to the payment of the costs and expenses of such sale, including, without limitation, reasonable compensation to the Mortgagee, the Mortgagee’s attorneys and agents, and of any judicial proceedings wherein the same may be made, and of all expenses, liabilities and advances made or incurred by the Mortgagee under this Mortgage, together with interest at the Default Interest Rate on all advances made by the Mortgagee, including all taxes or assessments (except any taxes, assessments or other charges subject to which the Encumbered Property shall have been sold) and the cost of removing any encumbrance (except any Permitted Encumbrance subject to which the Encumbered Property was sold);
|
|
SECOND, to the payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under the Second Amended and Restated Credit Agreement) payable to the Administrative Agent or the Mortgagee in their respective capacities as such;
|
|
THIRD, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the Issuing Lender (including fees, charges and disbursements of counsel to the respective Lenders and the Issuing Lender (including fees and time charges for attorneys who may be employees of any Lender or the Issuing Lender) under the Credit Documents, ratably among them in proportion to the respective amounts described in this clause Third payable to them;
|
|
FOURTH, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees and interest on the Loans, Revolving L/C Obligations and other Obligations, ratably among the Lenders and the Issuing Lender in proportion to the respective amounts described in this clause Fourth payable to them;
|
|
FIFTH, to payment of that portion of the Finance Obligations constituting unpaid principal of the Loans, Revolving L/C Obligations and amounts owing under Swap Contracts and Cash Management Agreements, ratably among the Lenders, the Issuing Lender, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause FIFTH held by them;
|
|
SIXTH, to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize the aggregate undrawn amount of Letters of Credit; and
|
|
LAST, the balance, if any, remaining after Discharge of Finance Obligations, to the Mortgagor as otherwise required by law.
|
(b)
|
For purposes of applying payments received in accordance with this Section 4.08, the Mortgagee shall be entitled to rely upon (i) the Administrative Agent under the Second Amended and Restated Credit Agreement and (ii) any Representative for a determination (which the Administrative Agent, each Representative and the Secured Parties agree (or shall agree) to provide upon request of the Mortgagee) of the outstanding Obligations, Cash Management Obligations or Swap Obligations owed to the Lenders or the Hedge Banks or the Cash Management Banks, as the case may be, and shall have no liability to any Credit Party or any Secured Party for actions taken in reliance on such information except in the case of its gross negligence or willful misconduct. Unless it has actual knowledge (including by way of written notice from a Lender or a Hedge Bank or a Cash Management Bank) to the contrary, each of the Administrative Agent and each Representative, in furnishing information pursuant to the preceding sentence, and the Mortgagee, in acting hereunder, shall be entitled to assume that no Secondary Obligations are outstanding. Unless it has actual knowledge (including by way of written notice from a Hedge Bank or a Cash Management Bank) to the contrary, the Mortgagee, in acting hereunder, shall be entitled to assume that no Cash Management Agreements or Swap Contracts are in existence. All distributions made by the Mortgagee pursuant to this Section shall be final (except in the event of manifest error), and the Mortgagee shall have no duty to inquire as to the application by the Secured Parties of any amounts distributed to them.
|
(c)
|
It is understood that nothing contained in this Mortgage shall exculpate the Mortgagor as to, or otherwise limit the liability of the Mortgagor for, any deficiency between the amount of the proceeds of the Encumbered Property and the amount of the Finance Obligations, unless otherwise expressly provided in this Mortgage or any of the other Credit Documents.
|
(d)
|
Except as required by applicable law, or any other Credit Documents, the Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Upon any sale of the Encumbered Property by the Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Mortgagee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Encumbered Property so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Mortgagee or such officer or be answerable in any way for the misapplication thereof.
|
(b)
|
To the full extent permitted by the law of the state wherein the Encumbered Property is located or other applicable law, neither the Mortgagor nor anyone claiming through or under it shall or will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension, homestead-exemption or redemption laws now or hereafter in force in order to prevent or hinder the enforcement or foreclosure of this Mortgage, the absolute sale of the Encumbered Property or the final and absolute putting of the purchasers into possession thereof immediately after any sale; and the Mortgagor, for itself and all who may at any time claim through or under it, hereby waives to the full extent that it may lawfully do so, the benefit of all such laws and any and all right to have the assets covered by the security interest created hereby marshaled upon any foreclosure of this Mortgage.
|
(a)
|
No delay or failure by the Mortgagee to exercise any right, power or remedy accruing upon any breach or Event of Default shall exhaust or impair any such right, power or remedy or be construed to be a waiver of any such breach or Event of Default or acquiescence therein; and every right, power and remedy given by this Mortgage to the Mortgagee may be exercised from time to time and as often as may be deemed expedient by the Mortgagee. No consent or waiver by the Mortgagee to or of any breach or default by the Mortgagor in the performance of the Finance Obligations shall be deemed or construed to be a consent or waiver to or of any other breach or Event of Default in the performance of the same or any other Finance Obligations by the Mortgagor hereunder. No failure on the part of the Mortgagee to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall constitute a waiver by the Mortgagee of its rights hereunder or impair any rights, powers or remedies consequent on any future Event of Default by the Mortgagor.
|
(b)
|
Even if the Mortgagee (i) grants some forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security for the payment of any sums secured hereby, (iii) waives or does not exercise some right granted herein or under the Collateral Documents, (iv) releases a part of the Encumbered Property from this Mortgage, (v) agrees to change some of the terms, covenants, conditions or agreements of any of the Collateral Documents, (vi) consents to the filing of a map, plat or replat affecting the Premises, (vii) consents to the granting of an easement or other right affecting the Premises or (viii) makes or consents to an agreement subordinating the Mortgagee’s lien on the Encumbered Property hereunder; no such act or omission shall preclude the Mortgagee from exercising any other right, power or privilege herein granted or intended to be granted in the event of any breach or Event of Default then made or of any subsequent default; nor, except as otherwise expressly provided in an instrument executed by the Mortgagee, shall this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or part of the Encumbered Property, the Mortgagee is hereby authorized and empowered to deal with any vendee or transferee with reference to the Encumbered Property secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any liabilities, obligations or undertakings.
|
|
(a)
|
To the Mortgagee:
|
|
(b)
|
To the Mortgagor:
|
(a) |
The provisions of the Second Amended and Restated Credit Agreement shall inure to the benefit of the Mortgagee in respect of this Mortgage and shall be binding upon the parties to the Second Amended and Restated Credit Agreement and upon the parties hereto in such respect. In furtherance and not in derogation of the rights, privileges and immunities of the Mortgagee therein set forth:
|
||
(i)
|
The Mortgagee is authorized to take all such action as is provided to be taken by it as Mortgagee hereunder and all other action reasonably incidental thereto. As to any matters not expressly provided for herein (including, without limitation, the timing and methods of realization upon the Encumbered Property) the Mortgagee shall act or refrain from acting in accordance with written instructions from the Required Lenders or, in the absence of such instructions, in accordance with its discretion.
|
||
(ii)
|
The Mortgagee shall not be responsible for the existence, genuineness or value of any of the Encumbered Property or for the validity, perfection, priority or enforceability of the Security Interests in any of the Encumbered Property, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder unless such action or omission constitutes gross negligence or willful misconduct. The Mortgagee shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Mortgage by the Mortgagor or any other Credit Party.
|
||
(b) |
At any time or times, in order to comply with any legal requirement in any jurisdiction, the Mortgagee may appoint another bank or trust company or one or more other persons, either to act as co-agent or co-agents, jointly with the Mortgagee, or to act as separate agent or agents on behalf of the Secured Parties with such power and authority as may be necessary for the effectual operation of the provisions hereof and may be specified in the instrument of appointment (which may, in the discretion of the Mortgagee, include provisions for the protection of such co-agent or separate agent similar to the provisions of Section 5.04(a). Notwithstanding any such appointment but only to the extent not inconsistent with such legal requirements or, in the reasonable judgment of the Mortgagee, not unduly burdensome to it or any such co-agent, the Mortgagor shall, so long as no Event of Default shall have occurred and be continuing, be entitled to deal solely and directly with the Mortgagee rather than any such co-agent in connection with the Mortgagee’s rights and obligations under this Agreement.
|
||
(c) |
If the Mortgagor fails to comply with the provisions of this Mortgage, such that the value of any Encumbered Property or the validity, perfection, rank or value of any security interest or lien therein is thereby diminished or potentially diminished or put at risk, the Mortgagee may, but shall not be required to, effect such compliance on behalf of the Mortgagor, and the Mortgagor shall reimburse the Mortgagee for the costs hereof on demand. All insurance expenses and all expenses of protecting, preserving, appraising, insuring, and maintaining the Premises and other Encumbered Property, expenses of conducting any additional title examinations requested by the Mortgagee, any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Encumbered Property, or in respect of periodic appraisals and inspections of the Encumbered Property to the extent the same may be requested by the Mortgagee from time to time, or in respect of the sale or other disposition thereof shall be borne and paid by the Mortgagor. If the Mortgagor fails to promptly pay any portion thereof when due, the Mortgagee may, at its option, but shall not be required to, pay the same and charge the Mortgagor’s account therefor, and the Mortgagor agrees to reimburse the Mortgagee therefor on demand. All sums so paid or incurred by the Mortgagee for any of the foregoing and any and all other sums for which the Mortgagor may become liable hereunder and all costs and expenses (including attorneys’ fees, legal expenses and court costs) reasonably incurred by the Mortgagee in enforcing or protecting the security interests and liens granted hereunder or any of its rights or remedies under this Mortgage, shall, together with interest thereon until paid at the rate applicable to the Base Rate plus [2%], be additional Finance Obligations hereunder.
|
||
(d)
|
The Mortgagor shall indemnify and save harmless the Mortgagee and its directors, officers, trustees, agents and employees (each an “Indemnitee”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, suits, judgments, fines, costs and expenses of any land, including, without limitation, reasonable attorneys’ fees and disbursements of counsel, (i) arising from the breach by the Mortgagor of any of its obligations under this Mortgage or (ii) arising from the exercise and performance by the Mortgagee of its powers and duties under this Mortgage; provided, however, no Indemnitee shall have the right to be indemnified hereunder for such, Indemnitees’ own gross negligence or willful misconduct as determined by a court of competent jurisdiction. If any action, suit or proceeding is brought against the Mortgagee for which the Mortgagor is required to provide indemnification under this Section 5.04(d), the Mortgagor, upon request and at its expense, shall defend such action, suit or proceeding, or cause the same to be defended by counsel designated by the Mortgagor and approved by the Mortgagee. Such approval shall not be withheld unreasonably and shall not be required in the case of defense by counsel designated by any insurance company undertaking such defense pursuant to any applicable policy of insurance.
|
|
(e)
|
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement shall constitute Finance Obligations. The indemnity obligations of the Mortgagor contained in this Section 5.04 shall continue in full force and effect notwithstanding the full payment of all Notes issued under the Second Amended and Restated Credit Agreement and all of the other Finance Obligations and notwithstanding the acquisition by the Mortgagee of the Encumbered Property or any portion thereof at foreclosure or by deed in lieu of foreclosure.
|
(a)
|
The conveyance to the Mortgagee of the Encumbered Property as security and for the benefit of the Mortgagee created and consummated by this Mortgage shall be null and void when all the Finance Obligations (other than contingent liabilities that, by their nature, may accrue after principal and interest on the Loans have been repaid in full and after all Commitments terminate) have been indefeasibly paid in full in cash in accordance with the terms of the Credit Documents, the Commitments have been terminated, all L/C Disbursements have expired or been terminated and all have been reimbursed in full.
|
|
(b)
|
In connection with any termination or release pursuant to paragraph (a) to the extent applicable, this Mortgage shall be marked “satisfied” by the Mortgagee, and this Mortgage may be cancelled of record at the request and at the expense of the Mortgagor. The Mortgagee shall execute any documents reasonably requested by the Mortgagor to accomplish the foregoing or to accomplish any release contemplated by this Section 5.05, and the Mortgagor will pay all costs and expenses, including reasonable attorneys’ fees and disbursements actually incurred (not as imposed by statute) by the Mortgagee in connection with the preparation and execution of such documents.
|
ATTEST
|
[MORTGAGOR NAME]
|
|
____________________________________________
__________________________________Secretary
|
By: __________________________________
Name:
Title:
|
TABLE OF CONTENTS
|
||
Page
|
||
ARTICLE I
|
||
DEFINITIONS
|
||
Section 1.01
|
Terms Defined in the Credit Agreement
|
2
|
Section 1.02
|
Terms Defined in the UCC
|
2
|
Section 1.03
|
Additional Definitions
|
2
|
Section 1.04
|
Terms Generally
|
10
|
ARTICLE II
|
||
SECURITY INTERESTS
|
||
Section 2.01
|
Grant of Security Interests
|
10
|
Section 2.02
|
Continuing Liability of Each Credit Party
|
12
|
Section 2.03
|
Security Interests Absolute
|
12
|
Section 2.04
|
Segregation of Proceeds; Cash Proceeds Account.
|
13
|
Section 2.05
|
L/C Cash Collateral Account
|
14
|
Section 2.06
|
Investment of Funds in Collateral Accounts
|
15
|
ARTICLE III
|
||
REPRESENTATIONS AND WARRANTIES
|
||
Section 3.01
|
Title to Collateral
|
15
|
Section 3.02
|
Validity, Perfection and Priority of Security Interests.
|
16
|
Section 3.03
|
Fair Labor Standards Act
|
16
|
Section 3.04
|
No Consents
|
17
|
Section 3.05
|
Deposit and Securities Accounts
|
17
|
ARTICLE IV
|
||
COVENANTS
|
||
Section 4.01
|
Delivery of Perfection Certificate; Initial Perfection and Delivery of Search Reports
|
17
|
Section 4.02
|
Change of Name, Identity, Structure or Location; Subjection to Other Security Agreements
|
17
|
Section 4.03
|
Further Actions
|
18
|
Section 4.04
|
Collateral in Possession of Other Persons, Leased Real Property Locations
|
18
|
Section 4.05
|
Books and Records
|
18
|
Section 4.06
|
Delivery of Instruments, Etc
|
19
|
Section 4.07
|
Collection of Receivables
|
19
|
Section 4.08
|
Notification to Account Debtors
|
19
|
Section 4.09
|
Certificates of Title
|
20
|
Section 4.10
|
Disposition of Collateral
|
20
|
Section 4.11
|
Insurance
|
20
|
Section 4.12
|
Information Regarding Collateral
|
20
|
Section 4.13
|
Covenants Regarding Intellectual Property
|
20
|
Section 4.14
|
Deposit Accounts and Securities Accounts
|
22
|
Section 4.15
|
Electronic Chattel Paper
|
23
|
Page | ||
Section 4.16
|
Claims
|
23
|
Section 4.17
|
Letter-of-Credit-Rights
|
23
|
ARTICLE V
|
||
GENERAL AUTHORITY; REMEDIES
|
||
Section 5.01
|
General Authority
|
23
|
Section 5.02
|
Remedies upon Event of Default.
|
24
|
Section 5.03
|
Limitation on Duty of Collateral Agent in Respect of Collateral
|
27
|
Section 5.04
|
Application of Proceeds.
|
28
|
ARTICLE VI
|
||
COLLATERAL AGENT
|
||
Section 6.01
|
Concerning the Collateral Agent
|
29
|
Section 6.02
|
Appointment of Co-Collateral Agent
|
29
|
ARTICLE VII
|
||
MISCELLANEOUS
|
||
Section 7.01
|
Notices
|
30
|
Section 7.02
|
No Waivers; Non-Exclusive Remedies
|
30
|
Section 7.03
|
Compensation and Expenses of the Collateral Agent; Indemnification.
|
31
|
Section 7.04
|
Enforcement
|
32
|
Section 7.05
|
Amendments and Waivers
|
33
|
Section 7.06
|
Successors and Assigns
|
33
|
Section 7.07
|
Governing Law
|
33
|
Section 7.08
|
Limitation of Law; Severability.
|
33
|
Section 7.09
|
Counterparts; Effectiveness
|
34
|
Section 7.10
|
Additional Credit Parties
|
34
|
Section 7.11
|
Termination
|
34
|
Section 7.12
|
Entire Agreement
|
35
|
Schedules:
|
|||
Schedule 1.01A
|
-
|
Claims
|
|
Schedule 1.01B
|
-
|
Material Excluded Contracts
|
|
Schedule 3.05
|
-
|
Deposit Accounts and Securities Accounts
|
|
Schedule 4.01
|
-
|
Filings to Perfect Security Interests
|
|
Exhibits:
|
|||
Exhibit A
|
-
|
Form of Grant of Security Interest in United States Patents and Trademarks
|
|
Exhibit B
|
-
|
Form of Grant of Security Interest in United States Copyrights
|
|
Exhibit C
|
-
|
Form of Deposit Account Control Agreement
|
|
Exhibit D
|
-
|
Form of Landlord’s Waiver and Consent
|
|
Exhibit E
|
-
|
Form of Consent to Assignment of Letter of Credit Proceeds
|
(i)
|
the United States and foreign copyrights described on Schedule 5 to any Credit Party’s Perfection Certificate (as each such schedule may be amended, modified or supplemented from time to time) and any renewals thereof;
|
|
(ii)
|
all other common law and/or statutory rights in all copyrightable subject matter under the laws of the United States or any other country (whether or not the underlying works of authorship have been published);
|
|
(iii)
|
all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental, derivative or collective work registrations and pending applications for registrations in the United States Copyright Office or any other country;
|
(iv)
|
all computer programs, web pages, computer data bases and computer program flow diagrams, including all source codes and object codes related to any or all of the foregoing;
|
|
(v)
|
all tangible property embodying or incorporating any or all of the foregoing, whether in completed form or in some lesser state of completion, and all masters, duplicates, drafts, versions, variations and copies thereof, in all formats;
|
|
(vi)
|
all claims for, and rights to sue for, past, present and future infringement of any of the foregoing;
|
|
(vii)
|
all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including, without limitation, damages and payments for past, present or future infringements thereof and payments and damages under all Copyright Licenses in connection therewith;
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(viii)
|
all rights in any of the foregoing, whether arising under the laws of the United States or any foreign country or otherwise, to copy, record, synchronize, broadcast, transmit, perform and/or display any of the foregoing or any matter which is the subject of any of the foregoing in any manner and by any process now known or hereafter devised; and
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|
(ix)
|
the name and title of each Copyright item and all rights of any Credit Party to the use thereof, including, without limitation, rights protected pursuant to trademark, service mark, unfair competition, anti-cybersquatting and/or the rules and principles of any other applicable statute, common law or other rule or principle of law now existing or hereafter arising.
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(x)
|
the United States and foreign patents described on Schedule 5 to any Credit Party’s Perfection Certificate (as each such schedule may be amended, modified or supplemented from time to time by such Credit Party) and any renewals thereof;
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(xi)
|
all other letters patent and design letters patent of the United States or any other country;
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(xii)
|
all applications filed or in preparation for filing for letters patent and design letters patent of the United States or any other country including, without limitation, applications in the United States Patent and Trademark Office or in any similar office or agency of the United States or any other country or political subdivision thereof;
|
(xiii)
|
all reissues, divisions, continuations, continuations-in-part, revisions, renewals or extensions thereof;
|
|
(xiv)
|
all claims for, and rights to sue for, past, present or future infringement of any of the foregoing;
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(xv)
|
all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including, without limitation, damages and payments for past, present or future infringements thereof and payments and damages under all Patent Licenses in connection therewith; and
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|
(xvi)
|
all rights corresponding to any of the foregoing whether arising under the laws of the United States or any foreign country or otherwise.
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(xvii)
|
the United States and foreign trademarks described on Schedule 5 to any Credit Party’s Perfection Certificate (as each such schedule may be amended, modified or supplemented from time to time) and any renewals thereof (but excluding in all cases all intent-to-use United States trademark applications for which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and accepted, respectively, by the United States Patent and Trademark Office);
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|
(xviii)
|
all other trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, certification marks, collective marks, brand names, trademark rights arising out of domain names and trade dress which are or have been used in the United States or in any state, territory or possession thereof, or in any other place, nation or jurisdiction, along with all prints and labels on which any of the foregoing have appeared or appear, package and other designs, and any other source or business identifiers, and general intangibles of like nature, and the rights in any of the foregoing which arise under applicable laws;
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|
(xix)
|
the goodwill of the business symbolized thereby or associated with each of the foregoing;
|
(xx)
|
all registrations and applications in connection therewith, including, without limitation, registrations and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof;
|
|
(xxi)
|
all reissues, extensions and renewals thereof;
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|
(xxii)
|
all claims for, and rights to sue for, past, present or future infringements of any of the foregoing;
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|
(xxiii)
|
all income, royalties, damages and payments now or hereafter due or payable with respect to any of the foregoing, including, without limitation, damages and payments for past, present or future infringements thereof and payments and damages under all Trademark Licenses in connection therewith; and
|
|
(xxiv)
|
all rights corresponding to any of the foregoing whether arising under the laws of the United States or any foreign country or otherwise.
|
(i)
|
all Receivables;
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|
(ii)
|
all Inventory;
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|
(iii)
|
all General Intangibles;
|
|
(iv)
|
all Intellectual Property;
|
|
(v)
|
all Documents and all Supporting Obligations of any kind given by any Person with respect thereto;
|
|
(vi)
|
all Equipment;
|
|
(vii)
|
all Investment Property and all Supporting Obligations of any kind given by any Person with respect thereto;
|
|
(viii)
|
all Deposit Accounts;
|
|
(ix)
|
all As-Extracted Collateral;
|
|
(x)
|
the Collateral Accounts, all cash and other property deposited therein or credited thereto from time to time, the Liquid Investments made pursuant to Section 2.06 and other monies and property of any kind of any Credit Party maintained with or in the possession of or under the control of the Collateral Agent;
|
|
(xi)
|
all books and records (including, without limitation, customer lists, credit files, computer programs, printouts and other computer materials and records) of each Credit Party pertaining to any of the Collateral; and
|
|
(xii)
|
all Proceeds of all or any of the Collateral described in clauses (i) through (xi) hereof;
|
(i)
|
any extension, renewal, settlement, compromise, acceleration, waiver or release in respect of any obligation of any other Credit Party under any Finance Document or any other agreement or instrument evidencing or securing any Finance Obligation, by operation of law or otherwise;
|
|
(ii)
|
any change in the manner, place, time or terms of payment of any Finance Obligation or any other amendment, supplement or modification to any Finance Document or any other agreement or instrument evidencing or securing any Finance Obligation;
|
|
(iii)
|
any release, non-perfection or invalidity of any direct or indirect security for any Finance Obligation, any sale, exchange, surrender, realization upon, offset against or other action in respect of any direct or indirect security for any Finance Obligation or any release of any other obligor or Credit Parties in respect of any Finance Obligation;
|
|
(iv)
|
any change in the existence, structure or ownership of any Credit Party, or any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Credit Party or its assets or any resulting disallowance, release or discharge of all or any portion of any Finance Obligation;
|
|
(v)
|
the existence of any claim, set-off or other right which any Credit Party may have at any time against the Company, any other Credit Party, any Agent, any other Secured Party, or any other Person, whether in connection herewith or any unrelated transaction; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
|
(vi)
|
any invalidity or unenforceability relating to or against the Company or any other Credit Party for any reason of any Finance Document or any other agreement or instrument evidencing or securing any Finance Obligation or any provision of applicable law or regulation purporting to prohibit the payment by the Company or any other Credit Party of any Finance Obligation;
|
|
(vii)
|
any failure by any Secured Party: (A) to file or enforce a claim against any Credit Party or its estate (in a bankruptcy or other proceeding); (B) to give notice of the existence, creation or incurrence by any Credit Party of any new or additional indebtedness or obligation under or with respect to the Finance Obligations; (C) to commence any action against any Credit Party; (D) to disclose to any Credit Party any facts which such Secured Party may now or hereafter know with regard to any Credit Party; or (E) to proceed with due diligence in the collection, protection or realization upon any collateral securing the Finance Obligations;
|
|
(viii)
|
any direction as to application of payment by the Company, any other Credit Party or any other Person;
|
|
(ix)
|
any subordination by any Secured Party of the payment of any Finance Obligation to the payment of any other liability (whether matured or unmatured) of any Credit Party to its creditors;
|
|
(x)
|
any act or failure to act by the Collateral Agent or any other Secured Party under this Agreement or otherwise which may deprive any Credit Party of any right to subrogation, contribution or reimbursement against any other Credit Party or any right to recover full indemnity for any payments made by such Credit Party in respect of the Finance Obligations; or
|
|
(xi)
|
any other act or omission to act or delay of any kind by any Credit Party or any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this clause, constitute a legal or equitable discharge of any Credit Party’s obligations hereunder, except that a Credit Party may assert the defense of final payment in full of the Finance Obligations.
|
(a)
|
Creation of Cash Proceeds Account. The Company has established or will establish with the Collateral Agent a Securities Account (the “Cash Proceeds Account”) in the name of “JPMorgan Chase Bank, N.A., as Collateral Agent” and under the exclusive control of the Collateral Agent. All cash Proceeds of the Collateral required to be delivered to the Collateral Agent pursuant to subsection (b) of this Section shall be deposited in the Cash Proceeds Account. Any income received by the Collateral Agent with respect to the balance from time to time standing to the credit of the Cash Proceeds Account, including any interest or capital gains on Liquid Investments, shall remain, or be deposited, in the Cash Proceeds Account. All right, title and interest in and to the cash amounts on deposit from time to time in the Cash Proceeds Account together with any Liquid Investments from time to time made pursuant to Section 2.06 and any other property or assets from time to time deposited in or credited to the Cash Proceeds Account shall vest in and be under the sole dominion and control of the Collateral Agent for the benefit of the Secured Parties, shall constitute part of the Collateral hereunder and shall not constitute payment of the Finance Obligations until applied thereto as hereinafter provided.
|
|
(b)
|
Deposits to Cash Proceeds Account. Upon notification by the Collateral Agent following the occurrence and during the continuance of an Actionable Default (provided that in the case of any Event of Default described in Section 10.1(f) of the Credit Agreement, no such notice shall be required), except as otherwise provided in Section 2.05, each Credit Party shall instruct all Account Debtors and other Persons obligated in respect of its Receivables and other Collateral to make all payments in respect of its Receivables and other Collateral either (i) directly to the Collateral Agent (by instructing that such payments be remitted by direct wire transfer to the Collateral Agent at its address referred to in Section 7.01 or to a post office box which shall be in the name and under the control of the Collateral Agent) or (ii) to one or more other banks in the United States (by instructing that such payments be remitted by direct wire transfer to, or to a post office box which shall be in the name and under the control of, such bank) under an Account Control Agreement duly executed by each relevant Credit Party and such bank or under other arrangements, in form and substance reasonably satisfactory to the Collateral Agent, pursuant to which each relevant Credit Party shall have irrevocably instructed such other bank (and such other bank shall have agreed) to remit all proceeds of such payments directly to the Collateral Agent for deposit into the Cash Proceeds Account or as the Collateral Agent may otherwise instruct such bank. All such payments made to the Collateral Agent shall be deposited in the Cash Proceeds Account. In addition to the foregoing, each Credit Party agrees that if the Proceeds of any Collateral hereunder (including the payments made in respect of Receivables) shall be received by it after the Collateral Agent’s notification referred to above, such Credit Party shall as promptly as possible deposit such Proceeds into the Cash Proceeds Account. Until so deposited, all such Proceeds shall be held in trust by the relevant Credit Party for and as the property of the Collateral Agent for the benefit of the Secured Parties and shall not be commingled with any other funds or property of any Credit Party. Each Credit Party hereby irrevocably authorizes and empowers the Collateral Agent, its officers, employees and authorized agents to endorse and sign its name on all checks, drafts, money orders or other media of payment so delivered, and such endorsements or assignments shall, for all purposes, be deemed to have been made by the relevant Credit Party prior to any endorsement or assignment thereof by the Collateral Agent. The Collateral Agent may use any convenient or customary means for the purpose of collecting such checks, drafts, money orders or other media of payment.
|
(a)
|
The Security Interests constitute valid security interests under the UCC securing the Finance Obligations.
|
|
(b)
|
When Uniform Commercial Code financing statements stating that the same covers “all assets of the Debtor”, “all personal property of the Debtor” or words of similar import shall have been filed in the offices specified in Schedule 4.01 hereto, the Security Interests will constitute perfected security interests in all right, title and interest of such Credit Party in the Collateral to the extent that a security interest therein may be perfected by filing pursuant to the UCC, prior to all other Liens and rights of others therein except for Permitted Liens.
|
|
(c)
|
When each Patent and Trademark Agreement has been filed with the United States Patent and Trademark Office and each Copyright Agreement has been filed with the United States Copyright Office, the Security Interests will constitute perfected security interests in all right, title and interest of such Credit Party in the Recordable Intellectual Property therein described to the extent that a security interest therein may be perfected by such filing pursuant to applicable law, prior to all other Liens and rights of others therein except for Permitted Liens.
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|
(d)
|
When each Account Control Agreement has been executed and delivered to the Collateral Agent, the Security Interests will constitute perfected security interests in all right, title and interest of the Credit Parties in the Deposit Accounts and Securities Accounts, as applicable, subject thereto, prior to all other Liens other than Permitted Liens and rights of others therein and subject to no adverse claims except for Permitted Liens.
|
|
(e)
|
When each consent substantially in the form of Exhibit E hereto has been executed and delivered to the Collateral Agent, the Security Interests shall constitute perfected security interests in all right, title and interest of such Credit Party in the Letter-of-Credit Rights referred to therein, prior to all other Liens other than Permitted Liens and rights of others therein.
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|
(f)
|
So long as such Credit Party is in compliance with the provisions of Section 4.15, the Security Interests shall constitute perfected security interests in all right, title and interest of such Credit Party in all electronic Chattel Paper, prior to all other Liens other than Permitted Liens and rights of others therein.
|
(a)
|
Such Credit Party (either itself or through licensees) will, for each Patent, not do any act, or omit to do any act, whereby any Patent which is material to the conduct of such Credit Party’s business may become invalidated or dedicated to the public, and shall continue to mark any products covered by a Patent with the relevant patent number or indication that a Patent is pending as required by the patent laws.
|
(b)
|
Such Credit Party (either itself or, if permitted by law, through its licensees or its sublicensees) will, for each Trademark (i) maintain such Trademark in full force free from any claim of abandonment or invalidity from non-use, material alteration, naked licensing or genericide, (ii) maintain the quality of products and services offered under such Trademark in a manner substantially consistent with or better than the quality of such products and services as of the date hereof, (iii) display such Trademark with proper notice, including notice of federal registration to the extent permitted by applicable law, (iv) not knowingly use or knowingly permit the use of such Trademark in violation of any third party rights, (v) not permit any assignment in gross of such Trademark and (vi) allow the Collateral Agent and its designees the right, at any time and from time to time, to inspect such Credit Party’s premises and to examine and observe such Credit Party’s books, records and operations, including, without limitation, its quality control processes, upon reasonable notice and at such reasonable times and as often as may be reasonably requested.
|
|
(c)
|
Such Credit Party (either itself or through licensees) will, for each work covered by a Copyright material to the conduct of its business, continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice.
|
|
(d)
|
Such Credit Party shall promptly notify the Collateral Agent if it knows that any Patent, Trademark or Copyright (or any application or registration relating thereto) material to the conduct of its business may become abandoned or dedicated to the public, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court) regarding such Credit Party’s ownership of any Patent, Trademark, Copyright or Software material to the conduct of its business, its right to register the same or to keep, use or maintain the same.
|
|
(e)
|
Such Credit Party will take all necessary steps to file, maintain and pursue each material application relating to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to preserve and maintain all common law rights in any Trademarks and each registration of the Patents, Trademarks and Copyrights in each instance which are material to the conduct of its business, including filing and paying fees for applications for renewal, reissues, divisions, continuations, continuations-in-part, affidavits of use, affidavits of incontestability and maintenance, and, unless such Credit Party shall reasonably determine that any such action would be of negligible economic value, to initiate opposition, interference, reexamination and cancellation proceedings against third parties.
|
|
(f)
|
If any rights to any Patent, Trademark, Copyright, Software or License relating thereto material to the conduct of its business is believed infringed, misappropriated, breached or diluted by a third party, such Credit Party shall notify the Collateral Agent promptly after it learns thereof and shall, unless such Credit Party shall reasonably determine that any such action would be of negligible economic value, promptly sue for infringement, misappropriation, breach or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as such Credit Party shall reasonably deem appropriate under the circumstances to protect such Patent, Trademark, Copyright, Software or License.
|
|
(g)
|
Within 30 days after the end of each fiscal quarter of the Company, each Credit Party will (i) inform the Collateral Agent of all applications for Patents, Trademarks or Copyrights filed during such fiscal quarter by such Credit Party or by any agent, employee, licensee or delegate on its behalf with the United States Patent and Trademark Office or the United States Copyright Office or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof and (ii) upon reasonable request of the Collateral Agent, execute any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Security Interests in such application, any resulting Patent, Trademark or Copyright and the goodwill or accounts and general intangibles of such Credit Party relating thereto or represented thereby, and such Credit Party hereby appoints the Collateral Agent its attorney-in-fact to execute and file such writings for the foregoing purposes.
|
(h)
|
As to all material Licenses (excluding non-exclusive Licenses of Software) entered into after the date hereof with any third party licensor, such Credit Party will use commercially reasonable and good faith efforts to obtain all requisite consents or approvals by the licensor to effect the assignment of all of such Credit Party’s right, title and interest thereunder to the Collateral Agent or its designee and to effect the sub-license contemplated under Section 5.02(e) upon and during the continuance of an Event of Default, and such Credit Party shall provide immediate written notice to the Collateral Agent upon failure to obtain any such consent or approval.
|
|
(i)
|
Such Credit Party shall take all actions (and cause all other Persons, including licensees, to the extent such other Persons are subject to its control) which are reasonably necessary or advisable to protect, preserve and confirm the validity, priority, perfection or enforcement of the rights granted to the Collateral Agent under this Agreement and give the Collateral Agent prompt written notice if, after the date hereof, such Credit Party shall obtain rights to any Trademarks, Patents or Copyrights, or enter into any new license agreements regarding any of the foregoing, and such Credit Party hereby agrees that the provisions of this Agreement shall automatically apply thereto. Such Credit Party will use commercially reasonable efforts so as not to permit the inclusion in any contract or agreement governing or relating to any Trademarks, Patents or Copyrights obtained after the date hereof or any license agreements entered into after the date hereof relating to any of the foregoing of any provisions that could or might in any way impair or prevent the creation of a security interest in, or the assignment of, such Credit Party’s rights and interests therein. Such Credit Party will, upon request of the Collateral Agent, execute any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Security Interests in any Patent, Trademark or Copyright (or application therefor) and the goodwill or accounts and general intangibles of such Credit Party relating thereto or represented thereby, and such Credit Party hereby appoints the Collateral Agent its attorney-in-fact to execute and file such writings for the foregoing purposes.
|
(i)
|
to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to carry out the terms of this Agreement;
|
|
(ii)
|
to receive, take, indorse, assign and deliver any and all checks, notes, drafts, acceptances, documents and other negotiable and non-negotiable Instruments taken or received by such Credit Party as, or in connection with, Collateral;
|
|
(iii)
|
to accelerate any Receivable which may be accelerated in accordance with its terms, and to otherwise demand, sue for, collect, receive and give acquittance for any and all monies due or to become due on or by virtue of any Collateral;
|
(iv)
|
to commence, settle, compromise, compound, prosecute, defend or adjust any Claim, suit, action or proceeding with respect to, or in connection with, the Collateral;
|
|
(v)
|
to sell, transfer, assign or otherwise deal in or with the Collateral or the Proceeds or avails thereof, including, without limitation, for the implementation of any assignment, lease, License, sublicense, grant of option, sale or other disposition of any Patent, Trademark, Copyright or Software or any action related thereto, as fully and effectually as if the Collateral Agent were the absolute owner thereof;
|
|
(vi)
|
to extend the time of payment of any or all of the Collateral and to make any allowance and other adjustments with respect thereto; and
|
|
(vii)
|
to do, at its option, but at the expense of such Credit Party, at any time or from time to time, all acts and things which the Collateral Agent deems necessary to protect or preserve the Collateral and to realize upon the Collateral.
|
(a)
|
If any Event of Default has occurred and is continuing, the Collateral Agent, upon being instructed to do so by the Required Lenders, may, in addition to all other rights and remedies granted to it in this Agreement and in any other agreement securing, evidencing or relating to the Finance Obligations (including, without limitation, the right to give instructions or a notice of sole control under an Account Control Agreement): (i) exercise on behalf of the Secured Parties all rights and remedies of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, (ii) without demand of performance or other demand or notice of any kind (except as herein provided or as may be required by mandatory provisions of law) to or upon any Credit Party or any other Person (all of which demands and/or notices are hereby waived by each Credit Party), (A) withdraw all cash and Liquid Investments in the Collateral Accounts and apply such cash and Liquid Investments and other cash, if any, then held by it as Collateral as specified in Section 5.04, (B) give notice and take sole possession and control of all amounts on deposit in or credited to any Deposit Account or Securities Account pursuant to the related Account Control Agreement and apply all such funds as specified in Section 5.04 and (C) if there shall be no such cash, Liquid Investments or other amounts or if such cash, Liquid Investments and other amounts shall be insufficient to pay all the Finance Obligations in full or cannot be so applied for any reason or if the Collateral Agent determines to do so, collect, receive, appropriate and realize upon the Collateral and/or sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral (or contract to do so) or any part thereof at public or private sale, at any office of the Collateral Agent or elsewhere in such manner as is commercially reasonable and as the Collateral Agent may deem best, for cash, on credit or for future delivery, without assumption of any credit risk and at such price or prices as the Collateral Agent may deem satisfactory.
|
|
(b)
|
If any Event of Default has occurred and is continuing, the Collateral Agent shall give each Credit Party not less than 10 days’ prior notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral which is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market. Any such notice shall (i) in the case of a public sale, state the time and place fixed for such sale, (ii) in the case of a private sale, state the day after which such sale may be consummated, (iii) contain the information specified in Section 9-613 of the UCC, (iv) be authenticated and (v) be sent to the parties required to be notified pursuant to Section 9-611(c) of the UCC; provided that, if the Collateral Agent fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Collateral Agent and each Credit Party agree that such notice constitutes reasonable notification within the meaning of Section 9-611 of the UCC. Except as otherwise provided herein, each Credit Party hereby waives, to the extent permitted by applicable law, notice and judicial hearing in connection with the Collateral Agent’s taking possession or disposition of any of the Collateral.
|
(c)
|
The Collateral Agent or any Secured Party may be the purchaser of any or all of the Collateral so sold at any public sale (or, if the Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale). Each Credit Party will execute and deliver such documents and take such other action as the Collateral Agent deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale, the Collateral Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold to it absolutely and free from any claim or right of whatsoever kind. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix in the notice of such sale. At any such sale, the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent shall not be obligated to make any such sale pursuant to any such notice. The Collateral 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 same may be so adjourned without further notice. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser thereof, but the Collateral Agent shall not incur any liability in the case of the failure of such purchaser to take up and pay for the Collateral so sold and, in the case of any such failure, such Collateral may again be sold upon like notice.
|
|
(d)
|
For the purpose of enforcing any and all rights and remedies under this Agreement, the Collateral Agent may, if any Event of Default has occurred and is continuing, (i) require each Credit Party to, and each Credit Party agrees that it will, at its expense and upon the request of the Collateral Agent, forthwith assemble, store and keep all or any part of the Collateral as directed by the Collateral Agent and make it available at a place designated by the Collateral Agent which is, in the Collateral Agent’s opinion, reasonably convenient to the Collateral Agent and such Credit Party, whether at the premises of such Credit Party or otherwise, it being understood that such Credit Party’s obligation so to deliver the Collateral is of the essence of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by such Credit Party of such obligation; (ii) to the extent permitted by applicable law, enter, with or without process of law and without breach of the peace, any premise where any of the Collateral is or may be located, and without charge or liability to any Credit Party, seize and remove such Collateral from such premises; (iii) have access to and use such Credit Party’s books and records relating to the Collateral; and (iv) prior to the disposition of the Collateral, store or transfer it without charge in or by means of any storage or transportation facility owned or leased by such Credit Party, process, repair or recondition it or otherwise prepare it for disposition in any manner and to the extent the Collateral Agent deems appropriate and, in connection with such preparation and disposition, use without charge any Intellectual Property or technical process used by such Credit Party. The Collateral Agent may also render any or all of the Collateral unusable at any Credit Party’s premises and may dispose of such Collateral on such premises without liability for rent or costs.
|
(e)
|
Without limiting the generality of the foregoing, if any Event of Default has occurred and is continuing:
|
(i) |
the Collateral Agent may, subject to the express terms of any valid and enforceable restriction in favor of a Person who is not a Group Company that prohibits, or requires any consent or establishes any other conditions for, an assignment thereof, license, or sublicense, whether general, special or otherwise, and whether on an exclusive or non-exclusive basis, any Patents, Trademarks or Copyrights included in the Collateral throughout the world for such term or terms, on such conditions and in such manner as the Collateral Agent shall in its sole discretion determine;
|
||
(ii) |
the Collateral Agent may (without assuming any obligations or liability thereunder), at any time and from time to time, enforce (and shall have the exclusive right to enforce) against any Licensee or sublicensee all rights and remedies of any Credit Party in, to and under any License and take or refrain from taking any action under any provision thereof, and each Credit Party hereby releases the Collateral Agent and each of the Secured Parties from, and agrees to hold the Collateral Agent and each of the Secured Parties free and harmless from and against any claims arising out of, any lawful action so taken or omitted to be taken with respect thereto;
|
||
(iii) |
upon request by the Collateral Agent, each Credit Party will use its commercially reasonable efforts to obtain all requisite consents or approvals by the licensor or sublicensor of each License to effect the assignment of all of such Credit Party’s right, title and interest thereunder to the Collateral Agent or its designee and will execute and deliver to the Collateral Agent a power of attorney, in form and substance reasonably satisfactory to the Collateral Agent, for the implementation of any lease, assignment, License, sublicense, grant of option, sale or other disposition of a Patent, Trademark or Copyright; and
|
||
(iv) |
the Collateral Agent may direct each Credit Party to refrain, in which event each such Credit Party shall refrain, from using or practicing any Trademark, Patent or Copyright in any manner whatsoever, directly or indirectly, and shall, if requested by the Collateral Agent, change such Credit Party’s name to eliminate therefrom any use of any Trademark and will execute such other and further documents as the Collateral Agent may request to further confirm this change and transfer ownership of the Trademarks, Patents, Copyrights and registrations and any pending applications therefor to the Collateral Agent.
|
(f)
|
In the event of any disposition following the occurrence and during the continuance of any Event of Default of any Patent, Trademark or Copyright pursuant to this Article V, each Credit Party shall supply its know-how and expertise relating to the manufacture and sale of the products or services bearing Trademarks or the products, services or works made or rendered in connection with or under Patents, Trademarks or Copyrights, and its customer lists and other records relating to such Patents, Trademarks or Copyrights and to the distribution of said products, services or works, to the Collateral Agent.
|
|
(g)
|
If any Event of Default has occurred and is continuing, the Collateral Agent, instead of exercising the power of sale conferred upon it pursuant to this Section 5.02, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction, and may in addition institute and maintain such suits and proceedings as the Collateral Agent may deem appropriate to protect and enforce the rights vested in it by this Agreement.
|
(h)
|
If any Event of Default has occurred and is continuing, the Collateral Agent shall, to the extent permitted by applicable law, without notice to any Credit Party or any party claiming through any Credit Party, without regard to the solvency or insolvency at such time of any Person then liable for the payment of any of the Finance Obligations, without regard to the then value of the Collateral and without requiring any bond from any complainant in such proceedings, be entitled as a matter of right to the appointment of a receiver or receivers (who may be the Collateral Agent) of the Collateral or any part thereof, and of the profits, revenues and other income thereof, pending such proceedings, with such powers as the court making such appointment shall confer, and to the entry of an order directing that the profits, revenues and other income of the property constituting the whole or any part of the Collateral be segregated, sequestered and impounded for the benefit of the Collateral Agent and the Secured Parties, and each Credit Party irrevocably consents to the appointment of such receiver or receivers and to the entry of such order.
|
|
(i)
|
Each Credit Party agrees, to the extent it may lawfully do so, that it will not at any time in any manner whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, moratorium, turnover or redemption law, or any law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force which may delay, prevent or otherwise affect the performance or enforcement of this Agreement, and each Credit Party hereby waives all benefit or advantage of all such laws. Each Credit Party covenants that it will not hinder, delay or impede the execution of any power granted to the Collateral Agent, the Administrative Agent or any other Secured Party in any Finance Document.
|
|
(j)
|
Each Credit Party, to the extent it may lawfully do so, on behalf of itself and all who claim through or under it, including, without limitation, any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or pursuant to judicial proceedings or under any foreclosure or any enforcement of this Agreement, and consents and agrees that all of the Collateral may at any such sale be offered and sold as an entirety.
|
|
(k)
|
Each Credit Party waives, to the extent permitted by law, presentment, demand, protest and any notice of any kind (except the notices expressly required hereunder or in the other Finance Documents) in connection with this Agreement and any action taken by the Collateral Agent with respect to the Collateral.
|
(a)
|
Priority of Distributions. The proceeds of any sale of, or other realization upon, all or any part of the Collateral and any cash held in the Collateral Accounts and any other amounts received on account of its Finance Obligations shall be applied in the following order:
|
|
FIRST, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under the Credit Agreement) payable to the Administrative Agent or the Collateral Agent in their respective capacities as such;
|
||
SECOND, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the Issuing Lender (including fees, charges and disbursements of counsel to the respective Lenders and the Issuing Lender (including fees and time charges for attorneys who may be employees of any Lender or the Issuing Lender) under the Credit Documents, ratably among them in proportion to the respective amounts described in this clause Second payable to them;
|
||
THIRD, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit fees and interest on the Loans, Revolving L/C Obligations and other Obligations, ratably among the Lenders and the Issuing Lender in proportion to the respective amounts described in this clause Third payable to them;
|
||
FOURTH, to payment of that portion of the Finance Obligations constituting unpaid principal of the Loans, Revolving L/C Obligations and amounts owing under Swap Contracts and Cash Management Agreements, ratably among the Lenders, the Issuing Lender, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;
|
||
FIFTH, to the Administrative Agent for the account of the Issuing Lender, to Cash Collateralize the aggregate undrawn amount of Letters of Credit; and
|
||
LAST, the balance, if any, remaining after the Discharge of Finance Obligations, to the Company or as otherwise required by law.
|
(b)
|
Distributions with Respect to Letters of Credit. Each of the Credit Parties and the Secured Parties agrees and acknowledges that if (after all outstanding Loans and L/C Disbursements have been paid in full) the Lenders are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued (or deemed issued) under the Credit Agreement, such amounts shall be deposited in the L/C Cash Collateral Account as cash security for the repayment of Obligations owing to the Lenders as such. Upon termination of all outstanding Letters of Credit, all of such cash security shall be applied to the remaining Obligations of the Lenders as such. If there remains any excess cash security, such excess cash shall be withdrawn by the Collateral Agent from the L/C Cash Collateral Account and distributed in accordance with Section 5.04(a) hereof.
|
(c)
|
Reliance by Collateral Agent. For purposes of applying payments received in accordance with this Section 5.04, the Collateral Agent shall be entitled to rely upon (i) the Administrative Agent under the Credit Agreement and (ii) the authorized representative (each, a “Representative”) for the Hedge Banks and Cash Management Banks, as applicable, for a determination (which the Administrative Agent, each Representative for any Hedge Bank or Cash Management Bank and the Secured Parties agree (or shall agree) to provide upon request of the Collateral Agent) of the outstanding Obligations, Swap Obligations, and Cash Management Obligations owed to the Secured Parties, and shall have no liability to any Credit Party or any other Secured Party for actions taken in reliance on such information except in the case of its gross negligence or willful misconduct. Unless it has actual knowledge (including by way of written notice from a Hedge Bank or Cash Management Bank) to the contrary, the Collateral Agent, in acting hereunder, shall be entitled to assume that no Swap Contracts or Cash Management Agreements are in existence. All distributions made by the Collateral Agent pursuant to this Section shall be presumptively correct (except in the event of manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Secured Parties of any amounts distributed to them.
|
|
(d)
|
Deficiencies. It is understood that the Credit Parties shall remain liable to the extent of any deficiency between the amount of the proceeds of the Collateral and the amount of the Finance Obligations.
|
(b)
|
Except as expressly provided herein or as may be agreed by the Administrative Agent in its sole discretion, electronic mail and internet and intranet websites may be used only to distribute routine communications, such as financial statements and other information, and to distribute Credit Documents for execution by the parties thereto, to distribute executed Credit Documents in Adobe PDF format and may not be used for any other purpose.
|
(a)
|
Expenses. The Credit Parties, jointly and severally, agree (i) to pay or reimburse the Collateral Agent for all out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this Agreement and any amendment, waiver, consent or other modification of the provisions hereof (whether or not the transactions contemplated hereby are consummated), and the consummation of the transactions contemplated hereby, including all fees, disbursements and other charges of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the Collateral Agent, (ii) to pay or reimburse the Collateral Agent and the other Secured Parties for all taxes which the Collateral Agent or any Secured Party may be required to pay by reason of the security interests granted in the Collateral (including any applicable transfer taxes) or to free any of the Collateral from the lien thereof and (iii) to pay or reimburse each Agent, any Representative of one or more Hedge Banks or Cash Management Banks and each other Secured Party for all reasonable costs and expenses incurred in connection with the enforcement, attempted enforcement or preservation of any rights and remedies under this Agreement (including all such costs and expenses incurred during any “workout” or restructuring in respect of the Finance Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Law), including all reasonable fees and disbursements of counsel (including the allocated charges of internal counsel. The foregoing costs and expenses shall include all search, filing, recording, title insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by any Agent and the costs of independent public accountants and other outside experts retained by or on behalf of the Agents and the Secured Parties. The agreements in this Section 7.03(a) shall survive the termination of the Commitments, Swap Contracts, and Cash Management Agreements and repayment of all Finance Obligations.
|
|
(b)
|
Protection of Collateral. If any Credit Party fails to comply with the provisions of any Finance Document, such that the value of any Collateral or the validity, perfection, rank or value of any Security Interest is thereby diminished or potentially diminished or put at risk, the Collateral Agent may, but shall not be required to, effect such compliance on behalf of such Credit Party, and the Credit Parties shall reimburse the Collateral Agent for the costs thereof within five Business Days of an invoice therefor. All insurance expenses and all expenses of protecting, storing, warehousing, appraising, handling, maintaining and shipping the Collateral, any and all excise, property, sales and use taxes imposed by any state, federal or local authority on any of the Collateral, or in respect of periodic appraisals and inspections of the Collateral, or in respect of the sale or other disposition thereof shall be borne and paid by the Credit Parties. If any Credit Party fails to promptly pay any portion thereof when due, the Collateral Agent may, at its option, but shall not be required to, pay the same and charge the Credit Parties’ account therefor, and the Credit Parties agree to reimburse the Collateral Agent therefor on demand. All sums so paid or incurred by the Collateral Agent for any of the foregoing and any and all other sums for which any Credit Party may become liable hereunder and all costs and expenses (including attorneys’ fees, legal expenses and court costs) reasonably incurred by the Collateral Agent or any Secured Party in enforcing or protecting the Security Interests or any of their rights or remedies under this Agreement, shall, together with interest thereon until paid at the rate applicable to interest at the highest rate applicable under the Credit Documents in respect of overdue obligations, be additional Finance Obligations hereunder.
|
(c)
|
Indemnification. Each Credit Party, jointly and severally, agrees to indemnify, save and hold harmless the Collateral Agent, the Representatives, each other Secured Party and their respective Affiliates, directors, officers, employees, counsel, agents and, in the case of any Lender which is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities, trustees, advisors and attorneys-in-fact and their respective successors and assigns (collectively, the “Indemnitees”) from and against: (i) any and all claims, demands, actions or causes of action that may at any time (including at any time following payment in full of the Finance Obligations and the resignation or removal of any Agent or Representative or the replacement of any Lender) be asserted or imposed against any Indemnitee, arising out of or in any way relating to or arising out of the manufacture, ownership, ordering, purchasing, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition or use of the Collateral (including, without limitation, latent or other defects, whether or not discoverable), the violation of the laws of any country, state or other Governmental Authority, or any tort (including, without limitation, any claims, arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitee), or property damage) or contract claim; (ii) any administrative or investigative proceeding by any Governmental Authority arising out of or related to a claim, demand, action or cause of action described in clause (i) above; and (iii) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including fees and disbursements of counsel) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, demand, action or cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action or cause of action or proceeding, in all cases, and whether or not an Indemnitee is a party to such claim, demand, action or cause of action, or proceeding; provided that no Indemnitee shall be entitled to indemnification for any claim to the extent such claim is determined by a court of competent jurisdiction in a final non-appealable judgment to have been caused by its own gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 7.03(c) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Credit Party, its directors, shareholders or creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Without prejudice to the survival of any other agreement of the Credit Parties hereunder and under the other Finance Documents, the agreements and obligations of the Credit Parties contained in this Section 7.03(c) shall survive the repayment of the Loans and other obligations under the Credit Documents and the termination of the Commitments. Any amounts paid by any Indemnitee as to which such Indemnitee has a right to reimbursement hereunder shall constitute Finance Obligations.
|
|
(d)
|
Contribution. If and to the extent that the obligations of any Credit Party under this Section 7.03 are unenforceable for any reason, each Credit Party hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
|
(i)
|
All rights, remedies and powers provided in this Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law which may be controlling and be limited to the extent necessary so that they will not render this Agreement invalid, unenforceable in whole or in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law.
|
(ii)
|
If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the fullest 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 Collateral Agent and the Secured Parties 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 provisions in any other jurisdiction.
|
CREDIT PARTIES:
|
BE AEROSPACE, INC.
|
||
|
By:
|
||
Name: | |||
Title: |
COLLATERAL AGENT:
|
JPMORGAN CHASE BANK, N.A.,
|
||
as Collateral Agent | |||
|
By:
|
||
Name: | |||
Title: |
[CREDIT PARTY NAME], as Grantor
|
|||
|
By:
|
||
Name: | |||
Title: |
JPMORGAN CHASE BANK, N.A., as Collateral
|
|||
Agent, as Grantee | |||
|
By:
|
||
Name: | |||
Title: |
|
|
||
Notary Public |
Serial No. or
Patent No.
|
Date
|
Issue Title
|
Inventor
|
Country
|
Patent Holder
|
Licensor
|
Licensee
|
Patent Number(s)
|
Date
|
Registration No.
|
Country
|
Issue Date
|
Mark
|
Serial No.
|
Country
|
Filing Date
|
Mark
|
Grantor
|
Serial or
Registration No.
|
Country
|
Issue or
Filing Date
|
Mark
|
[CREDIT PARTY NAME], as Grantor
|
|||
|
By:
|
||
Name: | |||
Title: |
JPMORGAN CHASE BANK, N.A., as Collateral
|
|||
Agent, as Grantee | |||
|
By:
|
||
Name: | |||
Title: |
|
|
||
Notary Public |
Serial No. or
Registration No.
|
Country
|
Issue or
Filing Date
|
Description
|
CREDIT PARTY:
|
[CREDIT PARTY NAME]
|
||
|
By:
|
||
Name: | |||
Title: |
|
[Address]
|
||
Attention:
|
|||
Telephone:
|
|||
Telecopier:
|
|||
COLLATERAL AGENT:
|
JPMORGAN CHASE BANK, N.A.,
|
||
as Collateral Age | |||
|
By:
|
||
Name: | |||
Title: |
|
[Address]
|
||
Attention:
|
|||
Telephone:
|
|||
Telecopier:
|
|||
DEPOSITARY BANK:
|
[DEPOSITARY BANK NAME]
|
||
|
By:
|
||
Name: | |||
Title: |
|
[Address]
|
||
Attention:
|
|||
Telephone:
|
|||
Telecopier:
|
|||
ATTEST: | [NAME OF LANDLORD] | |||||
By: |
|
By: |
|
|||
[NAME], Secretary
|
Name:
|
|||||
|
Title:
|
[STAMP/SEAL] |
____________________________
|
Notary Public
|
[NAME OF APPLICABLE CREDIT PARTY]
|
|||||
By: | |||||
Name: | |||||
|
Title:
|
||||
Consented and Agreed as of
this _______ day of _________, ____
|
|||||
[NAME OF ISSUING LENDER]
|
|||||
By: | |||||
Name: | |||||
|
Title: | ||||
JPMORGAN CHASE BANK, N.A.
|
|||||
as Collateral Agent
|
|||||
By: | |||||
Name: | |||||
|
Title:
|
Date: August___, 2012
|
B/E AEROSPACE, INC.
|
||
By: | |||
Name: Thomas P. McCaffrey | |||
Title: Senior Vice President and Chief Financial Officer | |||
By: | |||
Name: Ryan M. Patch
|
|||
Title: Vice President-Law, General Counsel and Secretary
|
|
[NEW CREDIT PARTY NAME]
|
|
By:
|
||
Name: | ||
Title: |
|
JPMORGAN CHASE BANK, N.A.,
|
|
as Administrative Agent | ||
By:
|
||
Name: | ||
Title: |
|
JPMORGAN CHASE BANK, N.A.,
|
|
as Collateral Agent | ||
By:
|
||
Name: | ||
Title: |
|
[NEW CREDIT PARTY NAME]
|
|
By:
|
||
Name: | ||
Title: | ||
[New Credit Party Notice Address] |
|
[NEW CREDIT PARTY NAME]
|
|
By:
|
||
Name: | ||
Title: | ||
[New Credit Party Notice Address] |
|
[NEW CREDIT PARTY NAME]
|
|
By:
|
||
Name: | ||
Title: | ||
[New Credit Party Notice Address] |
Name of Credit Party
|
Name of
Financial Institution
|
Account Number
|
Purpose
|
Name of Credit Party
|
Name of
Financial Institution
|
Account Number
|
Purpose
|
Name of Debtor
|
Filing Type
|
Finance Document
|
State
|
Filing Office
|
Filing Date
|
File Number
|
Legal Name of Debtor
|
UCC-1/UCC-2/UCC-3: General/ILO/Fixture Filing/Assignment/Name Change/Termination
|
Security Agreement (If doing an ILO/ Assignment/Name Change/Termination put Original File Date and Number here)
|
||||
Issuer
|
Class of Stock
|
Certificate Number, if Applicable
|
Par Value
|
Number of Shares
|
Percentage of Class Represented By Pledged Shares
|
Type of Investment Property
|
Issuer
|
Original Principal Amount
|
Date
|
Maturity
Date |
Type of Investment
Property |
Issuer
|
Class of Interest
|
Certificate Numbers,
if Applicable |
Percentage of Class
Represented by Pledged LLC Interests |
Type of Investment
Property |
Issuer
|
Class of Interest
|
Certificate Numbers,
if Applicable |
Percentage of Class Represented by Pledged Partnership
Interests |
Type of Investment
Property |
Page
|
||
ARTICLE I
GUARANTY
|
||
Section 1.01
|
The Guaranty
|
2
|
Section 1.02
|
Guaranty Absolute
|
3
|
Section 1.03
|
Payments.
|
5
|
Section 1.04
|
Discharge; Reinstatement in Certain Circumstances
|
6
|
Section 1.05
|
Waiver by the Guarantors
|
7
|
Section 1.06
|
Security for Guaranty
|
9
|
Section 1.07
|
Agreement to Pay; Subordination of Subrogation Claims
|
9
|
Section 1.08
|
Stay of Acceleration
|
10
|
Section 1.09
|
No Set-Off
|
10
|
ARTICLE II
INDEMNIFICATION, SUBROGATION AND CONTRIBUTION
|
||
Section 2.01
|
Indemnity and Subrogation
|
10
|
Section 2.02
|
Contribution and Subrogation
|
10
|
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
|
||
Section 3.01
|
Representations and Warranties; Certain Agreements
|
11
|
Section 3.02
|
Information
|
11
|
Section 3.03
|
Subordination by Guarantors
|
12
|
ARTICLE IV
SET-OFF
|
||
Section 4.01
|
Right of Set-Off
|
12
|
ARTICLE V
MISCELLANEOUS
|
||
Section 5.01
|
Notices
|
12
|
Section 5.02
|
Benefit of Agreement
|
13
|
Section 5.03
|
No Waivers; Non-Exclusive Remedies
|
13
|
Section 5.04
|
Enforcement
|
13
|
Section 5.05
|
Amendments and Waivers
|
13
|
Section 5.06
|
Governing law; Submission to Jurisdiction
|
14
|
Section 5.07
|
Limitation of law; Severability.
|
14
|
Section 5.08
|
Counterparts; Integration; Effectiveness
|
14
|
Section 5.09
|
WAIVER OF JURY TRIAL
|
15
|
Section 5.10
|
Additional Guarantors
|
15
|
Section 5.11
|
Termination; Release of Guarantors.
|
15
|
Section 5.12
|
Conflict
|
15
|
(i)
|
all principal of and interest (including, without limitation, any interest which accrues after the commencement of any (A) any voluntary or involuntary case or proceeding under the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally (collectively, “Debtor Relief laws”) with respect to any Credit Party, (B) any other voluntary or involuntary, insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation or similar case or proceeding with respect to any Credit Party or any material portion of its respective assets, (C) any liquidation, dissolution, reorganization or winding up of any Credit Party whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (D) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Credit Party (each an “Insolvency or Liquidation Proceeding”), whether or not allowed or allowable as a claim in any such proceeding) on any Loan, L/C Disbursement or Revolving L/C Obligation incurred by any Other Credit Party under, or any Note issued by any Other Credit Party pursuant to, the Second Amended and Restated Credit Agreement or any other Credit Document;
|
|
(ii)
|
all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by any Other Credit Party (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to such Other Credit Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to the Second Amended and Restated Credit Agreement or any other Credit Document;
|
|
(iii)
|
all expenses of any Agent as to which one or more of them have a right to reimbursement by any Credit Party under Section 5.04(a) of this Agreement, Section 12.5(i), (ii) or (iii) of the Second Amended and Restated Credit Agreement or under any other similar provision of any other Credit Document, including, without limitation, any and all sums advanced by any Agent to preserve the Collateral or preserve its security interests in the Collateral to the extent permitted under any Credit Document or applicable law;
|
|
(iv)
|
all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by any Credit Party under Section 5.04(b) of this Agreement, Section 12.5(iv) of the Second Amended and Restated Credit Agreement or under any other similar provision of any other Credit Document;
|
|
(v)
|
all other amounts now or hereafter payable by any Other Credit Party and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Insolvency or Liquidation Proceeding with respect to such Other Credit Party, whether or not allowed or allowable as a claim in any such proceeding) on the part of any Other Credit Party pursuant to any Credit Document;
|
|
(vi)
|
all Cash Management Obligations owed or owing under any Cash Management Agreement to a Cash Management Bank; and
|
|
(vii)
|
all Swap Obligations of a Credit Party permitted under the Second Amended and Restated Credit Agreement owed or owing under any Swap Contract to any Hedge Bank;
|
|
(i)
|
any extension, renewal, settlement, compromise, acceleration, waiver or release in respect of any obligation of any Other Credit Party under the Second Amended and Restated Credit Agreement, the Notes, any Swap Contract, any Cash Management Agreement or any other Finance Document or any other agreement or instrument evidencing or securing any Guaranteed Obligation, by operation of law or otherwise;
|
|
(ii)
|
any change in the manner, place, time or terms of payment of any Guaranteed Obligation or any other amendment, supplement or modification to the Second Amended and Restated Credit Agreement, the Notes, any other Finance Document or any other agreement or instrument evidencing or securing any Guaranteed Obligation;
|
|
(iii)
|
any release, non-perfection or invalidity of any direct or indirect security for any Guaranteed Obligation, any sale, exchange, surrender, realization upon, offset against or other action in respect of any direct or indirect security for any Guaranteed Obligation or any release of any Other Credit Party or any other guarantor or guarantors of any Guaranteed Obligation;
|
|
(iv)
|
any change in the existence, structure or ownership of any Other Credit Party or any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Other Credit Party or its assets or any resulting disallowance, release or discharge of all or any portion of any Guaranteed Obligation;
|
|
(v) | the existence of any claim, set-off or other right which any Guarantor may have at any time against any Other Credit Party, any Agent, any other Secured Party or any other Person, whether in connection herewith or any unrelated transaction; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; | |
(vi) | any invalidity or unenforceability relating to or against any Other Credit Party for any reason of the Second Amended and Restated Credit Agreement, any Note, any other Finance Document or any other agreement or instrument evidencing or securing any Guaranteed Obligation or any provision of applicable law purporting to prohibit the payment by any Other Credit Party of any Guaranteed Obligation; |
(vii)
|
any failure by any Agent or any other Secured Party: (A) to file or enforce a claim against any Other Credit Party or its estate (in a bankruptcy or other proceeding); (B) to give notice of the existence, creation or incurrence by any Other Credit Party of any new or additional indebtedness or obligation under or with respect to the Guaranteed Obligations; (C) to commence any action against any Other Credit Party; (D) to disclose to any Guarantor any facts which such Agent or such other Secured Party may now or hereafter know with regard to any Other Credit Party; or (E) to proceed with due diligence in the collection, protection or realization upon any collateral securing the Guaranteed Obligations;
|
|
(viii)
|
any direction as to application of payment by any Other Credit Party or any other Person;
|
|
(ix)
|
any subordination by any Secured Party of the payment of any Guaranteed Obligation to the payment of any other liability (whether matured or unmatured) of any Other Credit Party to its creditors;
|
|
(x)
|
any act or failure to act by the Administrative Agent or any other Secured Party under this Agreement or otherwise which may deprive any Guarantor of any right to subrogation, contribution or reimbursement against any Other Credit Party or any right to recover full indemnity for any payments made by such Guarantor in respect of the Guaranteed Obligations; or
|
|
(xi)
|
any other act or omission to act or delay of any kind by the Company, any Other Credit Party, the Administrative Agent or any Secured Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this clause, constitute a legal or equitable discharge of any Guarantor’s obligations hereunder.
|
(a)
|
Payments to be Made Upon Default. If any Credit Party fails to pay or perform any Guaranteed Obligation when due in accordance with its terms (whether at stated maturity, by acceleration or otherwise) or if any Default or Event of Default specified in Section 10.1(f) of the Second Amended and Restated Credit Agreement occurs with respect to any Credit Party, the Guarantors shall, forthwith on demand of the Administrative Agent, pay the aggregate amount of all Guaranteed Obligations to the Administrative Agent.
|
|
(b)
|
General Provisions as to Payments. Each payment hereunder shall be made without set-off, counterclaim or other deduction, in Federal or other funds immediately available in The City of New York, to the Administrative Agent at the address(es) referred to in Section 5.01 on the basis set forth in Section 5.14 of the Second Amended and Restated Credit Agreement.
|
||
(c)
|
Application of Payments.
|
(i) |
Priority of Distributions. All payments received by the Administrative Agent hereunder shall be applied as provided in Section 5.04 of the Security Agreement.
|
||
|
(ii) |
Distributions with Respect to Letters of Credit. Each of the Guarantors and the Secured Parties agrees and acknowledges that if (after all outstanding Loans and L/C Disbursements have been paid in full) the Revolving Credit Lenders are to receive a distribution on account of undrawn amounts with respect to Letters of Credit issued (or deemed issued) under the Second Amended and Restated Credit Agreement, such amounts shall be deposited in the L/C Cash Collateral Account established under the Security Agreement as cash security for the repayment of Guaranteed Obligations owing to the Revolving Credit Lenders as such. Upon termination of all outstanding Letters of Credit and payment in full of all L/C Disbursements and Revolving L/C Obligations, all of such cash security shall be applied to the remaining Guaranteed Obligations of the Finance Parties. If there remains any excess cash security, such excess cash shall be withdrawn by the Collateral Agent from the L/C Cash Collateral Account and distributed in accordance with Section 1.03(c)(i) hereof.
|
(i)
|
any renewal, extension, modification, increase, decrease, alteration or rearrangement of all or any part of the Guaranteed Obligations or any instrument executed in connection therewith, or any contract or understanding with any Other Credit Party, any Agent, the other Secured Parties, or any of them, or any other Person, pertaining to the Guaranteed Obligations;
|
|
(ii)
|
any adjustment, indulgence, forbearance or compromise that might be granted or given by any Agent or any other Secured Party to any Other Credit Party or any other Person liable on the Guaranteed Obligations; or the failure of any Agent or any other Secured Party to assert any claim or demand or to exercise any right or remedy against any Other Credit Party under the provisions of any Finance Document or otherwise; or any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Finance Document or any other agreement, including with respect to any Other Credit Party under this Agreement;
|
|
(iii)
|
the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of any Other Credit Party or any other Person at any time liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of any Other Credit Party, or any change, restructuring or termination of the corporate structure or existence of any Other Credit Party, or any sale, lease or transfer of any or all of the assets of any Other Credit Party, or any change in the shareholders, partners, or members of any Other Credit Party; or any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
|
|
(iv)
|
the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, the act of creating the Guaranteed Obligations or any part thereof is ultra vires, the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, the Guaranteed Obligations violate applicable usury laws, any Other Credit Party has valid defenses, claims or offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly or partially uncollectible from such Other Credit Party, the creation, performance or repayment of the Guaranteed Obligations (or the execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not genuine or authentic;
|
|
(v)
|
any full or partial release of the liability of any Other Credit Party or of any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof, it being recognized, acknowledged and agreed by each Guarantor that such Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and such Guarantor has not been induced to enter into this Agreement on the basis of a contemplation, belief, understanding or agreement that any party other than the Company will be liable to perform the Guaranteed Obligations, or that the Secured Parties will look to any other party to perform the Guaranteed Obligations;
|
|
(vi)
|
the taking or accepting of any other security, collateral or guarantee, or other assurance of payment, for all or any part of the Guaranteed Obligations;
|
|
(vii)
|
any release, surrender, exchange, subordination, deterioration, waste, loss or impairment (including negligent, willful, unreasonable or unjustifiable impairment) of any Letter of Credit, collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
|
|
(viii)
|
any right that any Guarantor may now or hereafter have under Section 3-606 of the UCC or otherwise to unimpaired collateral;
|
|
(ix)
|
the failure of any Agent, any other Secured Party or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
|
|
(x)
|
the fact that any collateral, security, security interest or lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or lien, it being recognized and agreed by each Guarantor that such Guarantor is not entering into this Agreement in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the Collateral;
|
|
(xi)
|
any payment by any Other Credit Party to the Administrative Agent, any other Agent or any other Secured Party being held to constitute a preference under Title 11 of the United States Code or any similar Federal, foreign or state law, or for any reason any Agent or any other Secured Party being required to refund such payment or pay such amount to any Other Credit Party or someone else;
|
|
(xii)
|
any other action taken or omitted to be taken with respect to the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof, it being the unambiguous and unequivocal intention of each Guarantor that such Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly described herein, except for the full and final payment and satisfaction of the Guaranteed Obligations in cash;
|
(xiii)
|
the fact that all or any of the Guaranteed Obligations cease to exist by operation of law, including by way of a discharge, limitation or tolling thereof under applicable Debtor Relief laws;
|
|
(xiv)
|
the existence of any claim, set-off or other right which any Guarantor may have at any time against any Other Credit Party, the Administrative Agent, any other Secured Party or any other Person, whether in connection herewith or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim; or
|
|
(xv)
|
any other circumstance that might in any manner or to any extent otherwise constitute a defense available to, vary the risk of, or operate as a discharge of, such Guarantor as a matter of law or equity.
|
(a)
|
All representations and warranties contained in the Second Amended and Restated Credit Agreement that relate to such Guarantor are true and correct.
|
|
(b)
|
Such Guarantor agrees to comply with each of the covenants contained in the Second Amended and Restated Credit Agreement that impose or purport to impose, through agreements with the Company, restrictions or obligations on such Guarantor.
|
|
(c)
|
Such Guarantor acknowledges that any default in the due observance or performance by such Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Section 10.1 of the Second Amended and Restated Credit Agreement.
|
|
(d)
|
There are no conditions precedent to the effectiveness of this Agreement that have not been satisfied or waived.
|
|
(e)
|
Such Guarantor has, independently and without reliance upon the Administrative Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Such Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of a Guarantor which is not a corporation) of such Guarantor has decided that a direct or an indirect benefit will accrue to such Guarantor by reason of the execution of this Agreement.
|
|
(f)
|
(i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which such Guarantor is or will become, on or after the date hereof, indebted; (ii) such Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement; (iii) such Guarantor is Solvent on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 5.10, the date of the Accession Agreement executed and delivered by such Guarantor) and will not cease to be Solvent as a result of the giving of this Agreement; (iv) such Guarantor is not engaged in a business or transaction, nor is it about to engage in a business or transaction, for which any property remaining with such Guarantor constitutes an unreasonably small amount of capital; and (v) such Guarantor does not intend to incur debts that will be beyond such Guarantor’s ability to pay as such debts mature.
|
(b)
|
Electronic Communications. Notices and other communications hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or Issuing Lender if such Lender or Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices by electronic communication. The Administrative Agent may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
|
(a)
|
All rights, remedies and powers provided in this may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all of the provisions of this Agreement are intended to be subject to all applicable mandatory provisions of law which may be controlling and be limited to the extent necessary so that they will not render this Agreement invalid, unenforceable in whole or in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law.
|
|
(b)
|
If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the fullest 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 Agents and the other Secured Parties 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 provisions in any other jurisdiction.
|
(a)
|
Termination. Upon the full, final and irrevocable payment and performance of all Guaranteed Obligations, the cancellation of all outstanding L/C Obligations and the termination of the Commitments under the Second Amended and Restated Credit Agreement and all Swap Agreements and Cash Management Agreements, this Agreement shall terminate and have no further force or effect.
|
|
(b)
|
Release of Guarantors. If all of the capital stock of one or more of the Guarantors is sold or otherwise disposed of or liquidated in compliance with the requirements of Section 9.5 or 9.6 of the Second Amended and Restated Credit Agreement (or such sale, other disposition or liquidation has been approved in writing by the Required Lenders (or all or such other portion of the Lenders, if required by Section 12.1 of the Second Amended and Restated Credit Agreement) and the proceeds of such sale, disposition or liquidation are applied in accordance with the provisions of the Second Amended and Restated Credit Agreement, to the extent applicable, such Guarantor or Guarantors shall be released from this Agreement, and this Agreement shall, as to each such Guarantor or Guarantors, terminate and have no further force or effect (it being understood and agreed that the sale of one or more Persons that own, directly or indirectly, all of the capital stock of any Guarantor shall be deemed to be a sale of such Guarantor for purposes of this Section 5.11(b)).
|
|
GUARANTORS:
|
[GUARANTOR NAME]
|
|
By:
|
||
Name: | ||
Title: | ||
[Guarantor Notice Address] |
|
[GUARANTOR NAME]
|
|
By:
|
||
Name: | ||
Title: | ||
[Guarantor Notice Address] |
|
||
Acknowledged and Agreed with Respect to Section 2.01: | ||
B/E AEROSPACE, INC. | ||
By:
|
||
Name: | ||
Title: | ||
|
||
Agreed to and Accepted: | ||
JPMORGAN CHASE BANK, N.A., as | ||
Administrative Agent | ||
By:
|
||
Name: | ||
Title: | ||
(i)
|
The Executive’s employment hereunder shall terminate upon his death. In such event, the Company shall, within thirty (30) days following the date of death, pay to such person as the Executive shall have designated in a notice filed with the Company, or, if no such person shall have been designated, to his estate, a lump sum amount equal to the Salary and Automobile Allowance (at the rate in effect as of the Termination Date) payable during the period from the Termination Date through the Expiration Date.
|
(ii)
|
Upon the Executive’s death at any time during or after the Employment Term, the Company shall, within thirty (30) days following the date of death, also pay to such person as the Executive shall have designated in a notice filed with the Company, or if no such person shall have been designated, to his estate, a lump-sum death benefit in the amount of five (5) million dollars in accordance with the Death Benefit Agreement attached as Exhibit A hereto, as may be amended from time to time.”
|
B/E AEROSPACE, INC.
|
|||
By: | /s/ Ryan M. Patch | ||
Name: | Ryan M. Patch | ||
Title: | Secretary | ||
EXECUTIVE
|
|||
By: |
/s/ Werner Lieberherr
|
||
Werner Lieberherr |
1.
|
DEATH BENEFIT.
|
A.
|
Upon the Executive’s death at any time, whether during his employment with the Corporation or following the termination of his employment for any reason, the Corporation shall pay to the Beneficiary a payment of $5,000,000 (five million dollars) (the “Death Benefit”). The Death Benefit shall be paid in a cash lump sum within thirty (30) days following the Executive’s death.
|
B.
|
The Death Benefit shall not be payable if the Executive’s death results from suicide, whether sane or insane, within two (2) years after the execution of this Agreement.
|
2.
|
CONDITIONS. In order to fund its cash payment obligation under this Agreement, the Corporation may elect, in its absolute discretion, to purchase a life insurance policy. The Executive agrees that in the event the Corporation elects to do so, then the Corporation may insure the life of the Executive and the Executive agrees to cooperate with the Corporation and insurance carrier in order to facilitate the purchase of such insurance. The Executive further agrees that if the Corporation elects to purchase such a life insurance policy, then the Corporation or a Trust (as described in Section 3 of this Agreement) shall be the owner and the beneficiary of that policy.
|
3.
|
ESTABLISHMENT OF TRUST. The Corporation may establish a Death Benefit Only Trust (the “Trust”). If established, all benefits payable under this Agreement to the Beneficiary shall be paid directly by the Corporation from the Trust. To the extent that such benefits are not paid from the Trust, the benefits shall be paid from the general assets of the Corporation. The Trust, if established, shall be an irrevocable grantor trust which conforms to the terms of the model trust as described in IRS revenue procedure 92-64, I.R.B. 1992-33 except an independent individual third party may be designated as trustee. The assets of the Trust are subject to the claims of the Corporation’s creditors in the event of the Corporation’s insolvency, as defined therein. Except as provided under the Trust, the Corporation shall not be obligated to set aside, earmark or escrow any funds or other assets to satisfy its obligations under this Agreement, and neither the Executive nor the Beneficiary shall have any property interest in any specific assets of the Corporation other than the unsecured right to receive payments from the Corporation, as provided in this Agreement.
|
4.
|
EMPLOYMENT RIGHTS. This Agreement shall not be deemed to create a contract of employment between the Corporation and the Executive and shall create no right in the Executive to continue in the Corporation’s employ for any specific period of time, or to create any other rights in the Executive or obligations on the part of the Corporation, except as are set forth in this Agreement.
|
5.
|
EXECUTIVE RIGHT TO ASSETS.
|
|
A.
|
The rights of the Executive, the Beneficiary, or any other person claiming through the Executive under this Agreement, shall be solely those of an unsecured general creditor of the Corporation. The Executive, the Beneficiary, or any other person claiming through the Executive, shall have the right to receive those payments specified under this Agreement only from the Corporation, and has no right to look to any specific or special property separate from the Corporation for payments.
|
|
B.
|
The Executive agrees that he, the Beneficiary, or any other person claiming through the Executive shall have no right or beneficial ownership interest whatsoever in any general asset used or acquired by the Corporation in connection with the liabilities it has assumed under this Agreement. Such assets shall not be deemed to be held under any trust for the benefit of the Executive or the Beneficiary, nor shall any such general assets be considered security for the performance of the obligations of the Corporation. Any such assets shall remain general, unpledged, and unrestricted assets of the Corporation.
|
|
C.
|
The Executive also understands and agrees that his participation in the acquisition of any such general asset for the Corporation shall not constitute a representation to the Executive, the Beneficiary, or any person claiming through the Executive that any of them has a special or beneficial interest in such general asset.
|
6.
|
INDEPENDENCE OF BENEFITS.
|
7.
|
ASSIGNABILITY.
|
8.
|
AMENDMENT.
|
9.
|
LAW GOVERNING.
|
CORPORATION: | B/E AEROSPACE, INC., | |||
a Delaware corporation | ||||
ATTEST: | ||||
By: | /s/ Ryan M. Patch | By: | /s/ Eric J. Wesch | |
Name: | Ryan M. Patch | Name: | Eric J. Wesch | |
Title: | Secretary | Title: | Vice President and Treasurer | |
EXECUTIVE: | /s/ Werner Lieberherr | |||
WERNER LIEBERHERR |
1.
|
I have reviewed this Quarterly Report on Form 10-Q of B/E Aerospace, Inc.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
a.
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
b.
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
c.
|
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report, based on such evaluation; and
|
d.
|
disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
a.
|
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
b.
|
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: April 30, 2013
|
By: |
/s/ Amin J. Khoury
|
Amin J. Khoury
|
||
Chairman and Chief Executive Officer
|
1.
|
I have reviewed this Quarterly Report on Form 10-Q of B/E Aerospace, Inc.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
a.
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
b.
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
c.
|
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report, based on such evaluation; and
|
d.
|
disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
a.
|
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
b.
|
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: April 30, 2013
|
By:
|
/s/ Thomas P. McCaffrey
|
Thomas P. McCaffrey
|
||
Senior Vice President and
|
||
Chief Financial Officer
|
1.
|
The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
2.
|
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
Date: April 30, 2013
|
By:
|
/s/ Amin J. Khoury
|
Amin J. Khoury
|
||
Chairman and Chief Executive Officer
|
1.
|
The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
2.
|
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
Date: April 30, 2013
|
By:
|
/s/ Thomas P. McCaffrey
|
Thomas P. McCaffrey
|
||
Senior Vice President and
|
||
Chief Financial Officer
|
Computations of Basic and Diluted Earnings Per Share (Detail) (USD $)
In Millions, except Per Share data, unless otherwise specified |
3 Months Ended | |
---|---|---|
Mar. 31, 2013
|
Mar. 31, 2012
|
|
Earnings Per Share Disclosure [Line Items] | ||
Net earnings | $ 89.9 | $ 68.8 |
Basic weighted average common shares | 103.1 | 102.0 |
Effect of dilutive stock options and employee stock purchase plan shares | 0.1 | 0.1 |
Effect of restricted shares issued | 0.5 | 0.4 |
Diluted weighted average common shares | 103.7 | 102.5 |
Basic net earnings per share | $ 0.87 | $ 0.67 |
Diluted net earnings per share | $ 0.87 | $ 0.67 |
Revenues and Operating Earnings by Reportable Segment (Detail) (USD $)
In Millions, unless otherwise specified |
3 Months Ended | |||||
---|---|---|---|---|---|---|
Mar. 31, 2013
|
Mar. 31, 2012
|
|||||
Segment Reporting, Revenue Reconciling Item [Line Items] | ||||||
Revenues | $ 842.2 | $ 747.3 | ||||
Operating earnings | 153.6 | [1] | 129.8 | [1] | ||
Interest expense | 30.6 | 28.4 | ||||
Earnings before income taxes | 123.0 | 101.4 | ||||
Commercial Aircraft
|
||||||
Segment Reporting, Revenue Reconciling Item [Line Items] | ||||||
Revenues | 420.0 | 374.7 | ||||
Operating earnings | 74.2 | 65.5 | ||||
Consumables Management
|
||||||
Segment Reporting, Revenue Reconciling Item [Line Items] | ||||||
Revenues | 326.7 | 286.8 | ||||
Operating earnings | 64.8 | 51.8 | ||||
Business Jet
|
||||||
Segment Reporting, Revenue Reconciling Item [Line Items] | ||||||
Revenues | 95.5 | 85.8 | ||||
Operating earnings | $ 14.6 | $ 12.5 | ||||
|
Inventories (Detail) (USD $)
In Millions, unless otherwise specified |
Mar. 31, 2013
|
Dec. 31, 2012
|
---|---|---|
Schedule of Inventory [Line Items] | ||
Purchased materials and component parts | $ 195.5 | $ 186.3 |
Work-in-process | 398.8 | 371.8 |
Finished goods | 1,214.2 | 1,194.8 |
Inventories | $ 1,808.5 | $ 1,752.9 |
Total Assets by Reportable Segment (Parenthetical) (Detail) (USD $)
In Millions, unless otherwise specified |
Mar. 31, 2013
|
Dec. 31, 2012
|
---|---|---|
Segment Reporting, Asset Reconciling Item [Line Items] | ||
Corporate assets (including cash and cash equivalents) | $ 633.9 | $ 599.4 |
Inventories
|
3 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||
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Mar. 31, 2013
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Inventories | Note
4. Inventories
Inventories
are stated at the lower of cost or market. Cost is determined using
FIFO or the weighted average cost method. Finished goods and
work-in-process inventories include material, labor and
manufacturing overhead costs. In accordance with industry practice,
costs in inventory include amounts relating to long-term contracts
with long production cycles and inventory items with long
procurement cycles, some of which are not expected to be realized
within one year. Work-in-process inventories include costs and
estimated earnings in excess of billings on uncompleted contracts
and excess over average costs on long-term contracts. Finished
goods inventories primarily consist of aerospace fasteners.
Inventories consist of the following:
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