SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
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 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 "Guaranteeing Subsidiary," and collectively, the
"Guaranteeing Subsidiaries"), each a subsidiary of L-3 Communications
Corporation (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 of April 30, 1997 providing for the
issuance of an aggregate principal amount of up to $225,000,000 of 10 3/8%
Senior Notes due 2007 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company"s obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 4.13 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
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby agrees as
follows:
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(a) Such Guaranteeing Subsidiary, jointly and severally with all other
current and future guarantors of the Notes (collectively, the
"Guarantors" and each, a "Guarantor"), unconditionally guarantees to
each Holder of a Note 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 Notes or the
Obligations of the Company under the Indenture or the Notes, that:
(i) the principal of, premium and interest on the Notes will be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of, premium and interest on the Notes, 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
Notes 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 Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of such Guaranteeing Subsidiary under this Supplemental
Indenture and its Subsidiary Guarantee shall be reduced to the maximum
amount permissible under such fraudulent conveyance or similar law.
3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
(a) To evidence its Subsidiary Guarantee set forth in this Supplemental
Indenture, such Guaranteeing Subsidiary hereby agrees that a notation
of such Subsidiary Guarantee substantially in the form of Exhibit F to
the Indenture shall be endorsed by an officer of such Guaranteeing
Subsidiary on each Note authenticated and delivered by the Trustee
after the date hereof.
(b) Notwithstanding the foregoing, such Guaranteeing Subsidiary hereby
agrees that its Subsidiary Guarantee set forth herein shall remain in
full force and effect notwithstanding any failure to endorse on each
Note a notation of such Subsidiary Guarantee.
(c) If an Officer whose signature is on this Supplemental Indenture or on
the Subsidiary Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.
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(d) The delivery of any Note by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Supplemental Indenture on
behalf of each Guaranteeing Subsidiary.
(e) Each Guaranteeing Subsidiary hereby agrees that its obligations
hereunder shall be unconditional, regardless of the validity,
regularity or enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver or consent by
any Holder of the Notes with respect to any provisions hereof or
thereof, 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 Guaranteeing Subsidiary 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 Subsidiary Guarantee made pursuant
to this Supplemental indenture will not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture.
(g) If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Guaranteeing Subsidiary, or any
Custodian, Trustee, liquidator or other similar official acting in
relation to either the Company or such Guaranteeing Subsidiary, any
amount paid by either to the Trustee or such Holder, the Subsidiary
Guarantee made pursuant to this Supplemental Indenture, to the extent
theretofore discharged, shall be reinstated in full force and effect.
(h) Each Guaranteeing Subsidiary 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 Guaranteeing Subsidiary further agrees that,
as between such Guaranteeing Subsidiary, 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 6 of the Indenture for the
purposes of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such
obligations (whether or not due and payable) shall forthwith
become due and payable by
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such Guaranteeing Subsidiary for the purpose of the Subsidiary
Guarantee made pursuant to this Supplemental Indenture.
(i) Each Guaranteeing Subsidiary shall have the right to seek
contribution from any other non-paying Guaranteeing Subsidiary so
long as the exercise of such right does not impair the rights of
the Holders or the Trustee under the Subsidiary Guarantee made
pursuant to this Supplemental Indenture.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the
Notes shall prevent any consolidation or merger of any Guaranteeing
Subsidiary with or into the Company or any other Guarantor or shall
prevent any transfer, sale or conveyance of the property of any
Guaranteeing Subsidiary as an entirety or substantially as an
entirety, to the Company or any other Guarantor.
(b) Except as set forth in Article 4 of the Indenture, nothing contained
in the Indenture, this Supplemental Indenture or in the Notes shall
prevent any consolidation or merger of any Guaranteeing Subsidiary
with or into a corporation or corporations other than the Company or
any other Guarantor (in each case, whether or not affiliated with the
Guaranteeing Subsidiary), or successive consolidations or mergers in
which a Guaranteeing Subsidiary or its successor or successors shall
be a party or parties, or shall prevent any sale or conveyance of the
property of any Guaranteeing Subsidiary as an entirety or
substantially as an entirety, to a corporation other than the Company
or any other Guarantor (in each case, whether or not affiliated with
the Guaranteeing Subsidiary) authorized to acquire and operate the
same; provided, however, that each Guaranteeing Subsidiary 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
Guaranteeing Subsidiaries, shall be expressly assumed (in the event
that the Guaranteeing Subsidiaries are not the surviving corporations
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 Guaranteeing
Subsidiary shall have been merged, or by the corporation which shall
have acquired such property and (ii) immediately after giving effect
to such consolidation, merger, sale or conveyance no Default or Event
of Default exists.
(c) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental
indenture,
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executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary 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 Guaranteeing Subsidiary, such
successor corporation shall succeed to and be substituted for the
Guaranteeing Subsidiary with the same effect as if it had been named
herein as the Guaranteeing Subsidiary; provided that, solely for
purposes of computing Consolidated Net Income for purposes of clause
(b) of the first paragraph of Section 4.07 in the Indenture, the
Consolidated Net Income of any Person other than Central Tractor Farm
& Country, Inc. and its Restricted Subsidiaries shall only be included
for periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets. Such successor
corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon the Notes issuable under the
Indenture which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under the
Indenture and this Supplemental Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the
Indenture and this Supplemental Indenture as though all of such
Subsidiary 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 Guaranteeing Subsidiary), all Liens, if any, in
favor of the Trustee in the assets sold thereby shall be released;
provided that in the event of an Asset Sale, the Net Proceeds from
such sale or other disposition are treated in accordance with the
provisions of Section 4.10 of the Indenture. If the assets sold in
such sale or other disposition include all or substantially all of the
assets of a Guaranteeing Subsidiary or all of the Capital Stock of a
Guaranteeing Subsidiary, then the Guaranteeing Subsidiary (in the
event of a sale or other disposition of all of the Capital Stock of
such Guaranteeing Subsidiary) 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 Guaranteeing Subsidiary) shall be released from
and relieved of its obligations under this Supplemental Indenture and
its Subsidiary Guarantee made pursuant hereto; provided that in the
event of an Asset Sale, the Net Proceeds from such sale or other
disposition are treated in accordance with the provisions of Section
4.10 of the Indenture. 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 Guaranteeing Subsidiary, as
the case may be, in accordance with the provisions of the Indenture
and this Supplemental Indenture, including without limitation, Section
4.10 of the Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of the
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Guaranteeing Subsidiary from its obligations under this Supplemental
Indenture and its Subsidiary Guarantee made pursuant hereto. If the
Guaranteeing Subsidiary is not released from its obligations under its
Subsidiary Guarantee, it shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations
of such Guaranteeing Subsidiary under the Indenture as provided in
this Supplemental Indenture.
(b) Upon the designation of a Guaranteeing Subsidiary as an Unrestricted
Subsidiary in accordance with the terms of the Indenture, such
Guaranteeing Subsidiary shall be released and relieved of its
obligations under its Subsidiary Guarantee 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 Guaranteeing Subsidiary as an Unrestricted
Subsidiary was made by the Company in accordance with the provisions
of the Indenture, including without limitation Section 4.07 of the
Indenture, the Trustee shall execute any documents reasonably required
in order to evidence the release of such Guaranteeing Subsidiary from
its obligations under its Subsidiary Guarantee. Any Guaranteeing
Subsidiary not released from its obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any
Guaranteeing Subsidiary 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 Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Subsidiary 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
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the Commission that such a waiver is against public policy.
7. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. 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.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
10. 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
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in respect of the recitals contained herein, all of which recitals are made
solely by the Guaranteeing Subsidiaries 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 CORPORATION
By: ______________________________________
Name:
Title:
XXXXXXX RESEARCH CORPORATION
EER SYSTEMS, INC.
ELECTRODYNAMICS, INC.
XXXXXXXX INC.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
INTERSTATE ELECTRONICS CORPORATION
KDI PRECISION PRODUCTS, INC.
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: ______________________________________
Name:
Title:
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Dated: November 9, 0000 XXX XXXX XX XXX XXXX
as Trustee
By: ______________________________________
Name:
Title:
NOTATION ON SENIOR SUBORDINATED NOTE
RELATING TO SUBSIDIARY GUARANTEE
Each Guaranteeing Subsidiary (as defined in the Supplemental Indenture (the
"Supplemental Indenture") dated November 9, 2001 among L-3 Communications
Corporation, 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 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) (i) has jointly and severally unconditionally
guaranteed (a) the due and punctual payment of the principal of, premium and
interest on the Notes, 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 on the Notes,
and (c) in case of any extension of time of payment or renewal of any Notes 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 Subsidiary Guarantee.
Notwithstanding the foregoing, in the event that the Subsidiary Guarantee
of any Guaranteeing Subsidiary would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any relevant jurisdiction,
the liability of such Guaranteeing Subsidiary under its Subsidiary 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 Guaranteeing Subsidiary, as such,
shall have any liability for any obligations of the Company or any Guaranteeing
Subsidiary under the Notes, any Subsidiary Guarantee, Indenture, any
supplemental indenture delivered pursuant to the Indenture by such Guaranteeing
Subsidiary or any Subsidiary Guarantees, or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Holder by accepting
a Note waives and releases all such liability.
This Subsidiary Guarantee shall be binding upon each Guaranteeing
Subsidiary 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
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extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
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This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Subsidiary
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 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: ______________________________________
Name:
Title:
