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").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of May 22, 1998 providing for
the issuance of an aggregate principal amount of up to $250,000,000 of 8 1/2%
Senior Subordinated Notes due 2008 (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 any
other current or future guarantors of the Notes
(collectively, "the Guarantors" and each, a "Guarantor"),
Guaranteeing Subsidiaries, 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, each Guaranteeing Subsidiary hereby
agrees that a notation of such Subsidiary Guarantee
substantially in the form of Exhibit C 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, each 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.
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(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.
(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 of the Notes 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 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:
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(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 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 SUBSIDIARIES 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 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
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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
Subsidiary, shall be expressly assumed (in the event that
such Guaranteeing Subsidiary 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 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, 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
such Guaranteeing Subsidiary with the same effect as if it
had been named herein as the Guaranteeing Subsidiary. 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
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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 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
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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 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.
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:
9
Dated: November 9, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By:
------------------------------------------
Name:
Title:
NOTATION ON SENIOR SUBORDINATED NOTE
RELATING TO SUBSIDIARY GUARANTEE
Pursuant to the Supplemental Indenture (the "Supplemental Indenture")
dated as of 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, each Guaranteeing Subsidiary (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
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
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:
C-2
