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 December 11, 1998
providing for the issuance of an aggregate principal amount of up to
$300,000,000 of 8% 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:
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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 Guaranteeing Subsidiary hereby
agrees as follows:
(a) Each 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 each 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 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, 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:
(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
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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 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 such
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 such 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 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
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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 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
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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
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.
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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.
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
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 Guarantor (i) has jointly and severally
unconditionally guaranteed (a) the due and punctual payment of the principal of,
and premium, interest and Liquidated Damages 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 and Liquidated Damages 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 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 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 Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the Notes,
any Subsidiary Guarantee, the Indenture, any supplemental indenture delivered
pursuant to the Indenture by such Guarantor 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 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 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:
