SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of November 9, 2001, among Xxxxxxx Research Corporation, a Florida
corporation, EER Systems, Inc., a Virginia corporation, Electrodynamics, Inc.,
an Arizona corporation, Xxxxxxxx Inc., a Delaware corporation, Hygienetics
Environmental Services, Inc., a Delaware corporation, Interstate Electronics
Corporation, a California corporation, KDI Precision Products, Inc., a Delaware
corporation, L-3 Communications Corporation, a Delaware corporation, L-3
Communications Aydin Corporation, a Delaware corporation, L-3 Communications DBS
Microwave, Inc., a California corporation, L-3 Communications ESSCO, Inc., a
Delaware corporation, L-3 Communications ILEX Systems, Inc., a Delaware
corporation, L-3 Communications SPD Technologies, Inc., a Delaware corporation,
L-3 Communications Storm Control Systems, Inc., a California corporation,
Microdyne Corporation, a Maryland corporation, MPRI, Inc., a Delaware
corporation, Pac Ord Inc., a Delaware corporation, Power Paragon, Inc., a
Delaware corporation, Southern California Microwave, Inc., a California
corporation, SPD Electrical Systems, Inc., a Delaware corporation, SPD Holdings,
Inc., a Delaware corporation and SPD Switchgear Inc., a Delaware corporation,
(each, a "Guarantor," and collectively, the "Guarantors"), each a subsidiary of
L-3 Communications Holdings, Inc. (or its permitted successor), a Delaware
corporation (the "Company"), the Company and The Bank of New York, as trustee
under the indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as October 24, 2001 providing
for the issuance of an aggregate principal amount of up to $420,000,000 of 4.00%
Senior Subordinated Convertible Contingent Debt Securities (CODES) due 2011 (the
"Securities");
WHEREAS, the Indenture provides that under certain
circumstances the Guarantors shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guarantors shall unconditionally
guarantee all of the Company's Obligations under the Securities and the
Indenture on the terms and conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section 14.7 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Securities as follows:
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1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guarantor hereby agrees as follows:
(a) Each Guarantor, jointly and severally with all other current
and future guarantors of the Securities (collectively, the
"Guaranteeing Subsidiaries" and each, a "Guaranteeing
Subsidiary"), unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, regardless of the
validity and enforceability of the Indenture, the Securities
or the Obligations of the Company under the Indenture or the
Securities, that:
(i) the principal of, premium, interest (including
Contingent Interest, if any) and Additional Amounts,
if any, on the Securities will be promptly paid in
full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of, premium, interest (including Contingent
Interest, if any) and Additional Amounts, if any, on
the Securities, to the extent lawful, and all other
Obligations of the Company to the Holders or the
Trustee thereunder or under the Indenture will be
promptly paid in full, all in accordance with the
terms thereof; and
(ii) in case of any extension of time for payment or
renewal of any Securities or any of such other
Obligations, that the same will be promptly paid in
full when due in accordance with the terms of the
extension or renewal, whether at stated maturity, by
acceleration or otherwise.
(b) Notwithstanding the foregoing, in the event that this
Guarantee would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any
relevant jurisdiction, the liability of each Guarantor under
this Supplemental Indenture and its Guarantee shall be reduced
to the maximum amount permissible under such fraudulent
conveyance or similar law.
3. EXECUTION AND DELIVERY OF GUARANTEES.
(a) To evidence its Guarantee set forth in this Supplemental
Indenture, each Guarantor hereby agrees that a notation of
such Guarantee, substantially in the form included as Exhibit
B to the Indenture, shall be endorsed by an Officer of such
Guarantor on each Security authenticated and delivered by the
Trustee after the date hereof.
(b) Notwithstanding the foregoing, each Guarantor hereby agrees
that its Guarantee set forth herein shall remain in full force
and effect
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notwithstanding any failure to endorse on each Security a
notation of such Guarantee.
(c) If an Officer whose signature is on this Supplemental
Indenture or on the Guarantee no longer holds that office at
the time the Trustee authenticates the Security on which a
Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
(d) The delivery of any Security by the Trustee, after the
authentication thereof under the Indenture, shall constitute
due delivery of the Guarantee set forth in this Supplemental
Indenture on behalf of each Guarantor.
(e) Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, regardless of the validity, regularity
or enforceability of the Securities or the Indenture, the
absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any
provisions of the Securities or the Indenture, the recovery of
any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a
guarantor.
(f) Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that its Guarantee made
pursuant to this Supplemental Indenture will not be discharged
except by complete performance of the obligations contained in
the Securities and the Indenture.
(g) If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Guarantor, or any
Custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or such Guarantor,
any amount paid by either to the Trustee or such Holder, the
Guarantee made pursuant to this Supplemental Indenture, to the
extent theretofore discharged, shall be reinstated in full
force and effect.
(h) Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees
that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand:
(i) the maturity of the Obligations guaranteed hereby may
be accelerated as provided in Article 4 of the
Indenture for the purposes of the Guarantee made
pursuant to this Supplemental Indenture,
notwithstanding any stay, injunction or other
prohibition
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preventing such acceleration in respect of the
Obligations guaranteed hereby;
(ii) in the event of any declaration of
acceleration of such Obligations as provided in
Article 4 of the Indenture, such Obligations (whether
or not due and payable) shall forthwith become due
and payable by such Guarantor for the purpose of the
Guarantee made pursuant to this Supplemental
Indenture; and
(iii) each Guarantor shall have the right to
seek contribution from any other non-paying Guarantor
so long as the exercise of such right does not impair
the rights of the Holders or the Trustee under the
Guarantee made pursuant to this Supplemental
Indenture.
4. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 6 and 9 of the Indenture,
nothing contained in the Indenture, this Supplemental
Indenture or in the Securities shall prevent (a) any
consolidation or merger of any Guarantor with or into the
Company or any Guaranteeing Subsidiary, (b) any transfer, sale
or conveyance of the property of any Guarantor as an entirety
or substantially as an entirety, to the Company or any other
Guaranteeing Subsidiary or (c) any merger of a Guarantor with
or into an Affiliate of that Guarantor in another State of the
United States so long as the amount of Indebtedness of the
Company and the domestic non-Guarantor subsidiaries is not
increased thereby.
(b) Except as set forth in Article 9 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in
the Securities shall prevent any consolidation or merger of
any Guarantor with or into a corporation or corporations other
than the Company or any other Guaranteeing Subsidiary (in each
case, whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which a Guarantor or
its successor or successors shall be a party or parties, or
shall prevent any sale or conveyance of the property of any
Guarantor as an entirety or substantially as an entirety, to a
corporation other than the Company or any other Guaranteeing
Subsidiary (in each case, whether or not affiliated with the
Guarantor) authorized to acquire and operate the same;
provided, however, that each Guarantor hereby covenants and
agrees that (i) subject to the Indenture, upon any such
consolidation, merger, sale or conveyance, the due and
punctual performance and observance of all of the covenants
and conditions of the Indenture and this Supplemental
Indenture to be performed by such Guarantor, shall be
expressly assumed (in the event that such Guarantor is not the
surviving corporation in the merger), by supplemental
indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the corporation formed by such
consolidation, or into which such Guarantor shall have been
merged, or by the
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corporation which shall have acquired such property, (ii)
immediately after giving effect to such consolidation, merger,
sale or conveyance no Default or Event of Default exists, and
(iii) such transaction will only be permitted under the
Indenture and this Supplemental Indenture if it would be
permitted under the terms of all of the indentures governing
the Outstanding Senior Subordinated Notes as the same are in
effect on the date hereof (whether or not those indentures are
subsequently amended, waived, modified or terminated or expire
and whether or not any of these Securities continue to be
outstanding).
(c) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Guarantee made
pursuant to this Supplemental Indenture and the due and
punctual performance of all of the covenants and conditions of
the Indenture and this Supplemental Indenture to be performed
by each Guarantor, such successor corporation shall succeed to
and be substituted for such Guarantor with the same effect as
if it had been named herein as one of the Guarantors. Such
successor corporation thereupon may cause to be signed any or
all of the Guarantees to be endorsed upon the Securities
issuable under the Indenture which theretofore shall not have
been signed by the Company and delivered to the Trustee. All
the Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture and this
Supplemental Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of the
Indenture and this Supplemental Indenture as though all of
such Guarantees had been issued at the date of the execution
hereof.
5. RELEASES.
(a) Concurrently with any sale of assets (including, if
applicable, all of the Capital Stock of a Guarantor), all
Liens, if any, in favor of the Trustee in the assets sold
thereby shall be released. If the assets sold in such sale or
other disposition include all or substantially all of the
assets of a Guarantor or all of the Capital Stock of a
Guarantor, then the Guarantor (in the event of a sale or other
disposition of all of the Capital Stock of such Guarantor) or
the Person acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of
such Guarantor) shall be released from and relieved of its
obligations under this Supplemental Indenture and its
Guarantee made pursuant hereto. Upon delivery by the Company
to the Trustee of an Officers' Certificate to the effect that
such sale or other disposition was made by the Company or the
Guarantor, as the case may be, in accordance with the
provisions of the Indenture and this Supplemental Indenture,
the Trustee shall execute any documents reasonably required in
order to evidence the release of the Guarantor from its
obligations under this Supplemental Indenture and its
Guarantee made
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pursuant hereto. If the Guarantor is not released from its
obligations under its Guarantee, it shall remain liable for
the full amount of principal of and interest (including
Contingent Interest, if any) and Additional Amounts, if any,
on the Securities and for the other obligations of such
Guarantor under the Indenture as provided herein.
(b) Upon the designation of a Guarantor as an Excluded Subsidiary
in accordance with the terms of the Indenture and the
indentures governing the Outstanding Senior Subordinated Notes
as the same are in effect on the date hereof (whether or not
those indentures are subsequently amended, waived, modified or
terminated or expire and whether or not any of those
Securities continue to be outstanding), such Guarantor shall
be released and relieved of its obligations under the
Indenture and this Supplemental Indenture. Upon delivery by
the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such designation of such
Guarantor as an Excluded Subsidiary was made by the Company in
accordance with the provisions of the Indenture and the
indentures governing the Outstanding Senior Subordinated Notes
as the same are in effect on the date hereof (whether or not
those indentures are subsequently amended, waived, modified,
terminated or expire and whether or not any of those
Securities continue to be outstanding), the Trustee shall
execute any documents reasonably required in order to evidence
the release of such Guarantor from its obligations under its
Guarantee. Any Guarantor not released from its obligations
under its Guarantee shall remain liable for the full amount of
principal of and interest on the Securities and for the other
obligations of any Guarantor under the Indenture as provided
herein.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of any Guarantor, as such,
shall have any liability for any obligations of the Company or any Guarantor
under the Securities, any Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Securities by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Securities and Exchange Commission that such a waiver is against
public policy.
7. SUBORDINATION OF GUARANTEES; ANTI-LAYERING. No Guarantor shall
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Debt of a Guarantor and senior in any respect in right of payment to any of the
Guarantees. Notwithstanding the foregoing sentence, the Guarantee of each
Guarantor shall be subordinated to the prior payment in full of all Senior Debt
of that Guarantor (in the same manner and to the same extent that the Securities
are subordinated to Senior Debt), which shall include all guarantees of Senior
Debt.
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8. THIS SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guarantors and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: November 9, 2001
L-3 COMMUNICATIONS HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President -
General Counsel and Secretary
XXXXXXX RESEARCH CORPORATION
EER SYSTEMS, INC.
ELECTRODYNAMICS, INC.
XXXXXXXX INC.
HYGIENETICS ENVIRONMENTAL SERVICES,
INC.
INTERSTATE ELECTRONICS CORPORATION
KDI PRECISION PRODUCTS, INC.
L-3 COMMUNICATIONS CORPORATION
L-3 COMMUNICATIONS AYDIN
CORPORATION
L-3 COMMUNICATIONS DBS MICROWAVE,
INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
L-3 COMMUNICATIONS SPD
TECHNOLOGIES, INC.
L-3 COMMUNICATIONS STORM CONTROL
SYSTEMS, INC.
MICRODYNE CORPORATION
MPRI, INC.
PAC ORD INC.
POWER PARAGON, INC.
SOUTHERN CALIFORNIA MICROWAVE, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD HOLDINGS, INC.
SPD SWITCHGEAR INC.
As Guaranteeing Subsidiaries
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
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Dated: November 9, 0000 XXX XXXX XX XXX XXXX
as Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
NOTATION ON SENIOR SUBORDINATED CONVERTIBLE CONTINGENT DEBT
SECURITY
RELATING TO GUARANTEE
Pursuant to the Supplemental Indenture (the "Supplemental
Indenture") dated as of November 9, 2001 among L-3 Communications Holdings,
Inc., a Delaware corporation, Xxxxxxx Research Corporation, a Florida
corporation, EER Systems, Inc., a Virginia corporation, Electrodynamics, Inc.,
an Arizona corporation, Xxxxxxxx Inc., a Delaware corporation, Hygienetics
Environmental Services, Inc., a Delaware corporation, Interstate Electronics
Corporation, a California corporation, KDI Precision Products, Inc., a Delaware
corporation, L-3 Communications Corporation, a Delaware corporation, L-3
Communications Aydin Corporation, a Delaware corporation, L-3 Communications DBS
Microwave, Inc., a California corporation, L-3 Communications ESSCO, Inc., a
Delaware corporation, L-3 Communications ILEX Systems, Inc., a Delaware
corporation, L-3 Communications SPD Technologies, Inc., a Delaware corporation,
L-3 Communications Storm Control Systems, Inc., a California corporation,
Microdyne Corporation, a Maryland corporation, MPRI, Inc., a Delaware
corporation, Pac Ord Inc., a Delaware corporation, Power Paragon, Inc., a
Delaware corporation, Southern California Microwave, Inc., a California
corporation, SPD Electrical Systems, Inc., a Delaware corporation, SPD Holdings,
Inc., a Delaware corporation and SPD Switchgear Inc., a Delaware corporation,
and The Bank of New York, each Guarantor (i) has jointly and severally
unconditionally guaranteed (a) the due and punctual payment of the principal of,
and premium, interest (including Contingent Interest, if any) and Additional
Amounts, if any, on the Security, whether at maturity or an interest payment
date, by acceleration, call for redemption or otherwise, (b) the due and
punctual payment of interest on the overdue principal and premium of, and
interest (including Contingent Interest, if any) and Additional Amounts, if any,
on the Security, and (c) in case of any extension of time of payment or renewal
of any Security or any of such other obligations, the same will be promptly paid
in full when due in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise and (ii) has agreed to
pay any and all costs and expenses (including reasonable attorneys' fees)
incurred by the Trustee or any Holder in enforcing any rights under this
Guarantee.
Notwithstanding the foregoing, in the event that the Guarantee
of any Guarantor would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of such Guarantor under its Guarantee shall be reduced to the maximum amount
permissible under such fraudulent conveyance or similar law.
No past, present or future director, officer, employee, agent,
incorporator, stockholder or agent of any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the
Security, any Guarantee, the Indenture, any supplemental indenture delivered
pursuant to the Indenture by such Guarantor or any Guarantees, or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such liability.
This Guarantee shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights
and privileges herein conferred upon that party shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions hereof.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Guarantee is noted have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers. Capitalized terms used
herein have the meaning assigned to them in the Indenture.
XXXXXXX RESEARCH CORPORATION
EER SYSTEMS, INC.
ELECTRODYNAMICS, INC.
XXXXXXXX INC.
HYGIENETICS ENVIRONMENTAL SERVICES,
INC.
INTERSTATE ELECTRONICS CORPORATION
KDI PRECISION PRODUCTS, INC.
L-3 COMMUNICATIONS CORPORATION
L-3 COMMUNICATIONS AYDIN
CORPORATION
L-3 COMMUNICATIONS DBS MICROWAVE,
INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
L-3 COMMUNICATIONS SPD
TECHNOLOGIES, INC.
L-3 COMMUNICATIONS STORM CONTROL
SYSTEMS, INC.
MICRODYNE CORPORATION
MPRI, INC.
PAC ORD INC.
POWER PARAGON, INC.
SOUTHERN CALIFORNIA MICROWAVE, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD HOLDINGS, INC.
SPD SWITCHGEAR INC.
As Guaranteeing Subsidiaries
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
