SIXTH SUPPLEMENTAL INDENTURE
| Exhibit 4.5 | EXECUTION VERSION |
Sixth
Supplemental Indenture (this “Supplemental
Indenture”), dated as of December 17, 2008, among Finmeccanica—Societá
per azioni, a societá per azioni organized under the laws of Italy (the “Parent Guarantor”),
DRS Technologies, Inc., a Delaware corporation (the “Company”), the other
Guarantors (as defined in the Indenture referred to herein) and The Bank of New
York Mellon, formerly known as 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 and the
Guarantors have heretofore executed and delivered to the Trustee a senior debt
securities indenture, dated as of January 31, 2006 and supplemented by an
indenture dated as of the same date (as further supplemented, the “Indenture”),
providing for the issuance of the Company’s 65/8% Senior
Notes due 2016 (the “Notes”);
WHEREAS, the aggregate
principal amount of outstanding Notes as of the date hereof is
$350,000,000;
WHEREAS, on October 22, 2008,
the Parent Guarantor and the Company announced the consummation of the merger of
Dragon Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
the Parent Guarantor, with and into the Company, with the Company surviving as a
wholly owned subsidiary of the Parent Guarantor (the “Merger”);
WHEREAS, the Parent Guarantor
desires to unconditionally guarantee all of the Company’s obligations under the
Notes and the Indenture on the terms and conditions set forth herein and
therein;
WHEREAS, pursuant to Section
9.01 of the Indenture, without the consent of any Holders of the Notes, the
Trustee, the Company and the Guarantors are authorized to add additional
Guarantees with respect to the Notes and to execute and deliver a supplemental
indenture to make any change to the Indenture that would provide additional
benefits to the Holders;
WHEREAS, the changes contained
herein provide additional benefits to the Holders; and
WHEREAS, the execution and
delivery of this instrument have been duly authorized and all conditions and
requirements necessary to make this instrument a valid and binding agreement
have been duly performed and complied with;
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Parent Guarantor and the
Trustee mutually 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.
2.01 Guarantee. (a) Subject
to this Article 2, the Parent Guarantor hereby, jointly and severally with the
Guarantors, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes or
the obligations of the Company thereunder, that:
(1) the
principal of, premium, if any, 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 and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
(2) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Parent Guarantor will be obligated, jointly and
severally with the Guarantors, to pay the same immediately. The
Parent Guarantor hereby agrees that this is a guarantee of payment and not a
guarantee of collection.
Any
and all payments hereunder by the Parent Guarantor to or for the account of any
Holder shall be made free and clear of, and without deduction or withholding for
or on account of, any tax, except to the extent such deduction or withholding is
required by law. If any tax is required by law to be deducted or
withheld by the Parent Guarantor from any such payments made by the Parent
Guarantor, the Parent Guarantor will make such deductions or withholding and pay
to the relevant taxing authority the full amount deducted or withheld before
penalties attach thereto or interest accrues thereon and no additional amounts
shall be payable by the Parent Guarantor to the Holders to compensate for such
deduction or withholding. The deduction or withholding of any tax in accordance
with this paragraph by the Parent Guarantor from any payments hereunder by the
Parent Guarantor to or for the account of any Holder shall not release or
otherwise relieve the Guarantors of their joint and several obligation to pay to
the Holders the amount of any such tax deduction or withholding, or the right of
any Holder to receive from the Guarantors the full amounts due under the
Indenture or the Notes.
(b) The
Parent Guarantor hereby agrees that its obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver,
modification or indulgence granted to the Company by any Holder of the Notes
with respect to any provisions 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;
provided,
however, that, notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Parent Guarantor,
increase the principal amount of the Notes, or increase the interest rate
thereon, or increase any premium payable upon redemption thereof, or alter the
stated maturity thereof. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Parent Guarantor hereunder which
shall remain absolute and unconditional as described above:
(1) any
time, waiver or consent granted to, or composition with, the
Company;
(2)
the release of the Company or any other Person under the terms of any
composition or arrangement with any creditor;
(3)
the taking, variation, compromise, exchange renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over the
assets of, the Company or other Person or any non-presentation or non-observance
of any formality or other requirement in respect of any instrument or any
failure to realize the full value of any security;
(4)
the incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status or change of control or ownership
of the Company or any other Person;
(5)
any amendment (however fundamental) or replacement in respect of any of the
Notes, the Indenture or any other document or security;
(6)
any discharge, release or varying of the liability of any other Guarantor under
the Notes, the Indenture or any other document or security;
(7)
any unenforceability, illegality or invalidity of any obligation of any Person
or any other Guarantor under the Notes, the Indenture, this Supplemental
Indenture or any other document or security; or
(8)
any insolvency or similar proceedings.
The
Parent 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 agrees that this guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and the
Indenture.
(c) If
any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Parent Guarantor, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company,
the Parent Guarantor or the Guarantors, any amount paid by either to the Trustee
or such Holder, this guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.
(d) Until
all amounts which may be or become payable by the Company, the Guarantors or the
Parent Guarantor under or in connection with the Indenture or this Supplemental
Indenture have been irrevocably paid in full, the Parent Guarantor will not
exercise any rights which it may have by reason of performance by it of its
obligations under this Supplemental Indenture to claim any contribution from any
Guarantor of any of the Company's obligations under the Indenture. If
the Parent Guarantor receives any benefit, payment or distribution in relation
to such rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Holders
under the Indenture or this Supplemental Indenture by the Guarantors or the
Parent Guarantor to be repaid in full in trust for the Holders and shall
promptly pay or transfer the same to the relevant Holders for application in
accordance with the Indenture.
(e) The
Parent Guarantor agrees that it will 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. The Parent
Guarantor further agrees that, as between it and the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (1) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article 6 of
the Indenture for the purposes of this guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) 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) will forthwith become due and
payable by the Parent Guarantor for the purpose of this
guarantee. The Parent Guarantor will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the applicable Subsidiary
Guarantee.
2.02 Limitation on Guarantor
Liability. The Parent Guarantor, and by its acceptance of this
guarantee, each Holder, hereby confirms that it is the intention of all such
parties that the guarantee of such Parent Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to such guarantee. To effectuate
the foregoing intention, the Trustee, the Holders and the Parent Guarantor
hereby irrevocably agree that the obligations of the Parent Guarantor will be
limited to the maximum amount that will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of the Parent Guarantor
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any Guarantor in respect of the obligations of such Guarantor under the Article
11 of the Indenture, result in the obligations of the Parent Guarantor under its
guarantee not constituting a fraudulent transfer or conveyance.
2.03 Covenants Do Not
Apply. Other than as provided in this Article 2, the covenants
and the Events of Default (other than those set forth in Sections 6.01(8),
6.01(9) and 6.01(10)) set forth in the Indenture do not apply to the Parent
Guarantor. The Parent Guarantor shall not be considered a Restricted Subsidiary
for any purpose whatsoever. Except as expressly set forth herein, the
Parent Guarantor does not hereby guarantee the performance by the Company of any
of the Company’s covenants, agreements or obligations under the Notes or the
Indenture.
3. No Recourse
Against Others. No past, present
or future director, officer, employee, incorporator, stockholder or agent of the
Parent Guarantor, as such, shall have any liability for any obligations of the
Company, any Guarantor or the Parent Guarantor under the Notes, 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 this guarantee 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 SEC that
such a waiver is against public policy.
4. Binding
Nature of Supplemental Indenture. On the date
hereof, the Indenture shall be supplemented and amended in accordance herewith,
and this Supplemental Indenture shall form a part of the Indenture for all
purposes, and the Holder of every Security heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby. The Trustee
accepts the trusts created by the Indenture, as amended and supplemented by this
Supplemental Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as amended and supplemented by this Supplemental
Indenture.
5. Reaffirmation. Each of the
Company, the Guarantors and the Trustee hereby confirms and reaffirms the
Indenture in every particular except as amended and supplemented by this
Supplemental Indenture. Except as supplemented and amended by this
Supplemental Indenture, all provisions in the Indenture and the Supplemental
Indenture shall remain in full force and effect. All provisions of this
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as amended and supplemented by this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument and all provisions in the Indenture and the Notes shall remain in
full force and effect.
6. No Third
Party Beneficiaries. Nothing in this
Supplemental Indenture express or implied, shall give to any Person, other than
the parties hereto and their successors under the Indenture and the Holders of
the Notes, any benefit or any legal or equitable right, remedy or
claim under the Indenture.
7. Successors
and Assigns. All covenants and
agreements in this Supplemental Indenture by the Company, the Guarantors,
Finmeccanica or the Trustee shall bind their respective successors and assigns,
whether so expressed or not.
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. NEW YORK LAW TO
GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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 and statements contained herein, all of which recitals and
statements are made solely by the Parent Guarantor and the Company.
12. Trust
Indenture Act. If
any provision of this Sixth Supplemental Indenture limits, qualifies or
conflicts with another provision which is required to be included in this Sixth
Supplemental Indenture by the Trust Indenture Act of 1939, as amended, the
required provision shall control.
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.
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Finmeccanica—Societá
per azioni
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By:
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/s/ Pier Francesco
Guarguaglini
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Name: Pier
Francesco Guarguaglini
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Title: Chairman
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Chief Executive
Officer
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DRS
Technologies, Inc.
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxxx
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Title: Authorized
Signatory
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DRS
Surveillance Support Systems, Inc.
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DRS
C3 Systems, Inc.
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DRS
Power & Control Technologies, Inc.
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DRS
Power Technology, Inc.
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DRS
Intelligence & Avionic Solutions, Inc.
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DRS
Signal Solutions, Inc.
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DRS
Codem Systems, Inc.
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DRS
Unmanned Technologies, Inc.
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DRS
Data & Imaging Systems, Inc.
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DRS
Tactical Systems, Inc.
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DRS
Tactical Systems Global Services, Inc.
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DRS
Test & Energy Management, LLC
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DRS
Sensors & Targeting Systems, Inc.
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DRS
Homeland Security Solutions, Inc.
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Engineered
Electric Company
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Engineered
Coil Company
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DRS
Mobile Environmental Systems Co.
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DRS
Sustainment Systems, Inc.
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DRS
Technical Services, Inc.
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DRS
Systems, Inc.
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DRS
Technologies Canada, Inc.
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DRS
Systems Management, LLC
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DRS
International, Inc.
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Tech-Sym
Corporation
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Engineered
Support Systems, Inc.
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ESSI
Resources, LLC
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Universal
Power Systems, Inc.
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By:
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/s/ Xxxxxxx X.
Xxxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxxx
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Title: Authorized
Signatory
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The
Bank of New York Mellon
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as
Trustee
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By:
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/s/ Xxxxxx X.
Xxxxxxx
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Authorized
Signatory
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