Exhibit 4.1
EXECUTION VERSION
L-3 Communications Corporation,
As Issuer
INDENTURE
Dated as of May 21, 2010
The Bank of New York Mellon Trust Company, N.A.,
as Trustee
TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.1 Definitions
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1
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Section 1.2 Other Definitions
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6
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Section 1.3 Incorporation by Reference of Trust Indenture Act
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6
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Section 1.4 Rules of Construction
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6
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ARTICLE II. THE SECURITIES
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7
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Section 2.1 Issuable in Series
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7
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Section 2.2 Establishment of Terms of Series of Securities
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7
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Section 2.3 Execution and Authentication
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8
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Section 2.4 Registrar and Paying Agent
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9
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Section 2.5 Paying Agent to Hold Money in Trust
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9
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Section 2.6 Holder Lists
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10
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Section 2.7 Transfer and Exchange
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10
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Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities
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10
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Section 2.9 Outstanding Securities
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11
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Section 2.10 Treasury Securities
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11
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Section 2.11 Temporary Securities
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11
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Section 2.12 Cancellation
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11
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Section 2.13 Defaulted Interest
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12
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Section 2.14 Special Record Dates
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12
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Section 2.15 Global Securities
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12
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Section 2.16 CUSIP Numbers
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13
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Section 2.17 Persons Deemed Owners
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13
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ARTICLE III. REDEMPTION
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13
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Section 3.1 Notice to Trustee
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13
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Section 3.2 Selection of Securities to be Redeemed
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14
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Section 3.3 Notice of Redemption
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14
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Section 3.4 Effect of Notice of Redemption
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14
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Section 3.5 Deposit of Redemption Price
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14
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Section 3.6 Securities Redeemed in Part
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15
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ARTICLE IV. COVENANTS
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15
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Section 4.1 Payment of Principal and Interest
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15
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Section 4.2 Additional Amounts
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15
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Section 4.3 Maintenance of Office or Agency
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15
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Section 4.4 SEC Reports
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15
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Section 4.5 Compliance Certificate
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16
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Section 4.6 Taxes
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16
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Section 4.7 Stay, Extension and Usury Laws
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16
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Section 4.8 Corporate Existence
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17
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Section 4.9 Sale and Leaseback Transactions
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17
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Section 4.10 Liens
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17
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Section 4.11 Future Subsidiary Guarantees
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18
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ARTICLE V. SUCCESSORS
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18
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Section 5.1 Merger, Consolidation, or Sale of Assets
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18
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Section 5.2 Successor Person Substituted
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18
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Section 5.3 Delivery of Officers Certificate and Opinion of Counsel
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18
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ARTICLE VI. DEFAULTS AND REMEDIES
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19
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Section 6.1 Events of Default
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19
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Section 6.2 Acceleration
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20
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Section 6.3 Other Remedies
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20
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Section 6.4 Waiver of Past Defaults
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20
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Section 6.5 Control by Majority
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21
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Section 6.6 Limitation on Suits
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21
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Section 6.7 Rights of Holders of Securities to Receive Payment
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21
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Section 6.8 Collection Suit by Trustee
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21
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Section 6.9 Trustee May File Proofs of Claim
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21
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Section 6.10 Priorities
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22
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Page
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Section 6.11 Undertaking for Costs
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22
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ARTICLE VII. TRUSTEE
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22
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Section 7.1 Duties of Trustee
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22
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Section 7.2 Rights of Trustee
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23
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Section 7.3 Individual Rights of Trustee
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24
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Section 7.4 Trustees Disclaimer
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24
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Section 7.5 Notice of Defaults
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24
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Section 7.6 Reports by Trustee to Holders
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24
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Section 7.7 Compensation and Indemnity
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26
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Section 7.8 Replacement of Trustee
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26
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Section 7.9 Successor Trustee by Merger, etc.
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27
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Section 7.10 Eligibility; Disqualification
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27
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Section 7.11 Preferential Collection of Claims Against Company
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27
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ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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27
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Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance
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27
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Section 8.2 Legal Defeasance and Discharge
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27
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Section 8.3 Covenant Defeasance
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28
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Section 8.4 Conditions to Legal or Covenant Defeasance
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28
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Section 8.5 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions
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29
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Section 8.6 Repayment to Company
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29
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Section 8.7 Reinstatement
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29
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ARTICLE IX. AMENDMENTS AND WAIVERS
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30
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Section 9.1 Without Consent of Holders
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30
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Section 9.2 With Consent of Holders
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31
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Section 9.3 Limitations
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31
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Section 9.4 Compliance with Trust Indenture Act
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31
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Section 9.5 Revocation and Effect of Consents
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32
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Section 9.6 Notation on or Exchange of Securities
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32
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Section 9.7 Trustee Protected
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32
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ARTICLE X. GUARANTEES
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32
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Section 10.1 Agreement to Guarantee
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32
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Section 10.2 Execution and Delivery of Subsidiary Guarantees
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33
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Section 10.3 Guarantors May Consolidate, Etc. on Certain Terms
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34
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Section 10.4 Releases
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34
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ARTICLE XI. SATISFACTION AND DISCHARGE
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34
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Section 11.1 Satisfaction and Discharge
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34
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Section 11.2 Application of Trust Money
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35
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ARTICLE XII. MISCELLANEOUS
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35
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Section 12.1 Trust Indenture Act Controls
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35
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Section 12.2 Notices
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36
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Section 12.3 Communication by Holders with Other Holders
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37
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Section 12.4 Certificate and Opinion as to Conditions Precedent
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37
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Section 12.5 Statements Required in Certificate or Opinion
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37
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Section 12.6 Rules by Trustee and Agents
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37
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Section 12.7 Legal Holidays
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37
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Section 12.8 No Personal Liability of Directors, Officers, Employees and Stockholders
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37
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Section 12.9 Counterparts
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38
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Section 12.10 Governing Law; Waiver of Trial by Jury
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38
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Section 12.11 No Adverse Interpretation of Other Agreements
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38
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Section 12.12 Successors
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38
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Section 12.13 Severability
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38
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Section 12.14 Counterpart Originals
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38
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Section 12.15 Table of Contents, Headings, Etc.
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38
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Section 12.16 Securities in a Foreign Currency
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38
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Section 12.17 Force Majeure
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39
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ARTICLE XIII. SINKING FUNDS
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39
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Section 13.1 Applicability of Article
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39
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Section 13.2 Satisfaction of Sinking Fund Payments with Securities
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39
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Section 13.3 Redemption of Securities for Sinking Fund
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39
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L-3 COMMUNICATIONS CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of May 21, 2010
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§ 310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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7.10
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(b)
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7.10
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§ 311(a)
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7.11
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(b)
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7.11
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(c)
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Not Applicable
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§ 312(a)
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2.6
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(b)
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12.3
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(c)
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12.3
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§ 313(a)
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7.6
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(b)(1)
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7.6
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(b)(2)
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7.6
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(c)(1)
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7.6
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(d)
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7.6
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§ 314(a)
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4.3, 4.4
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(b)
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Not Applicable
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(c)(1)
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12.4
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(c)(2)
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12.4
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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12.5
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(f)
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Not Applicable
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§ 315(a)
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7.1
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(b)
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7.5
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(c)
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7.1
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(d)
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7.1
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(e)
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6.11
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§ 316(a)
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2.10
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(a)(1)(A)
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6.5
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(a)(1)(B)
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6.4
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(b)
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6.7
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(c)
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2.14, 9.5(b)
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§ 317(a)(1)
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6.8
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(a)(2)
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6.9
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(b)
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2.5
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§ 318(a)
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12.1
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.
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Indenture dated as of May 21, 2010 among L-3 Communications Corporation, a Delaware
corporation (Company), the guarantors listed on the signature pages hereto and The Bank of New
York Mellon Trust Company, N.A., as trustee (Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders as defined below of the Securities (or applicable Series thereof) issued
under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
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Additional Amounts means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, control (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control.
Agent means any Registrar, Paying Agent or Service Agent.
Authorized Newspaper means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by
the Trustee shall constitute a sufficient publication of such notice.
Attributable Debt in respect of a Sale and Leaseback Transaction means, at any time of
determination, the present value at that time of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such Sale and Leaseback Transaction
including any period for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value will be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
Bankruptcy Law means title 11, U.S. Code or any similar Federal or State law for the relief
of debtors.
Bearer Security means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.
Board of Directors means the Board of Directors of the Company or any authorized committee
thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
Business Day means, unless otherwise provided by Board Resolution, Officers Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.
Capital Stock means (i) in the case of a corporation, corporate stock, (ii) in the case of
an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or limited) and (iv) any
other interest or
1
participation that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
Company means the party named as such above until a successor replaces it pursuant to
Article V hereof and thereafter means the successor.
Company Order means a written order signed in the name of the Company by two Officers of the
Company.
Consolidated Net Tangible Assets of any Person as of any date means the total assets of such
Person and its Subsidiaries as of the most recent fiscal quarter end for which a consolidated
balance sheet of such Person and its Subsidiaries is available as of that date, minus all current
liabilities of such Person and its Subsidiaries reflected on such balance sheet and minus total
goodwill and other intangible assets of such Person and its Subsidiaries reflected on such balance
sheet, all calculated on a consolidated basis in accordance with GAAP.
Corporate Trust Office means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the dated hereof is located at 525
WilliamPenn Place, 38th Floor, Pittsburgh, PA 15259, Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).
Custodian means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Depository means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such Person, Depository as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.
Discount Security means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
Dollars and $ means the currency of The United States of America.
Domestic Subsidiary means a Subsidiary of the Company (other than an Immaterial Subsidiary)
that is organized or existing under the laws of the United States, any state thereof, the District
of Columbia or any territory thereof.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Currency means any currency or currency unit issued by a government other than the
government of The United States of America.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.
Global Security or Global Securities means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.
Government Securities means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.
2
Guarantee means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness.
Guarantor means each Person listed on the signature page hereto and each Domestic Subsidiary
of the Company that executes a Guarantee, either on the date hereof or at any future time in
accordance with the terms of this Indenture and their respective successors and assigns; provided,
that upon the release and discharge of such Person from its guarantee in accordance with this
Indenture, such Person shall cease to be a Guarantor.
Holder means a Person in whose name a Security is registered or the holder of a Bearer
Security.
Immaterial Subsidiary means, as of any date, any Subsidiary whose total assets, as of that
date, are less than $20.0 million and whose total revenues for the most recent 12-month period do
not exceed $20.0 million.
Indebtedness means, with respect to any Person, obligations of such Person for borrowed
money (including, without limitation, indebtedness for borrowed money evidenced by notes, bonds,
debentures or similar instruments). For the avoidance of doubt, bankers acceptances and
obligations of a Person under currency exchange or interest rate swap agreements (or other
agreements or arrangements designed to protect such Person against fluctuations in currency
exchange rates or interest rates) are not Indebtedness.
Indenture means this Indenture as amended or supplemented from time to time and shall
include the form and terms of particular Series of Securities established as contemplated
hereunder.
interest with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
Issue Date means with respect to each Series of Securities the first date such Securities
are issued under this Indenture.
Lien means any mortgage, lien, pledge, charge, security interest or other encumbrance of any
kind, whether or not filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statute) of any jurisdiction.
Maturity, when used with respect to any Security or installment of principal thereof, means
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, notice of option to elect repayment or otherwise.
Obligations means any principal, premium, interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees and other liabilities or amounts
payable under the documentation governing any Indebtedness or in respect thereto.
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any
Vice-President of such Person.
Officers Certificate means a certificate signed by two Officers, one of whom (in the case
of an Officers Certificate delivered under Section 4.5 hereof) must be the Companys principal
executive officer, the principal financial officer, the principal accounting officer or the
treasurer.
Opinion of Counsel means a written opinion acceptable to the Trustee of legal counsel. The
counsel may be an employee of or counsel to the Company or any Subsidiary of the Company.
Permitted Liens means, with respect to each Series of Securities:
3
(a) Liens securing Indebtedness of the Company or any of its Subsidiaries, which
Indebtedness exists on the applicable Issue Date;
(b) Liens securing Indebtedness of any Person that (i) is acquired by the Company or any of
its Subsidiaries after the applicable Issue Date, (ii) is merged or amalgamated with or into the
Company or any of its Subsidiaries after the applicable Issue Date or (iii) becomes consolidated
in the financial statements of the Company or any of its Subsidiaries after the applicable Issue
Date in accordance with GAAP;
provided, however,
that in each case contemplated by this clause
(b), such Indebtedness was not incurred in contemplation of such acquisition, merger,
amalgamation or consolidation and is only secured by Liens on the Capital Stock and assets of,
the Person (and Subsidiaries of the Person) acquired by, or merged or amalgamated with or into,
or consolidated in the financial statements of, the Company or any of its Subsidiaries;
(c) Liens securing Indebtedness (including assumed Indebtedness) of the Company or any of
its Subsidiaries incurred to finance (whether prior to or within 365 days after) the acquisition,
construction or improvement of assets (whether through the direct purchase of assets or through
the purchase of the Capital Stock of any Person owning such assets or through an acquisition of
any such Person by merger);
provided, however,
that such Indebtedness is only secured by Liens on
the Capital Stock and assets acquired, constructed or improved in connection with such financing
(including the Capital Stock and assets of any Subsidiary of any such acquired Person);
(d) Liens to secure any extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness
secured by Liens referred to in clauses (a)-(c) above or clause (j) below or Liens created in
connection with any amendment, consent or waiver relating to such Indebtedness, so long as such
Lien is limited to all or part of substantially the same property which secured the Lien
extended, renewed or replaced, the amount of Indebtedness secured is not increased (other than by
the amount equal to any costs and expenses (including any premiums, fees or penalties) incurred
in connection with any extension, renewal, refinancing or refunding) and the Indebtedness so
secured does not exceed the fair market value (as determined by the Companys Board of Directors)
of the assets subject to such Liens at the time of such extension, renewal, refinancing or
refunding, or such amendment, consent or waiver, as the case may be;
(e) Liens to secure intercompany Indebtedness of the Company or any of its Subsidiaries to
the Company or any of its Subsidiaries;
(f) Liens to secure the performance of statutory obligations, insurance, surety or appeal
bonds, workers compensation obligations, performance bonds or other obligations of a like nature
incurred in the ordinary course of business (including Liens to secure letters of credit and
reimbursement obligations with respect thereto issued to assure payment of such obligations);
(g) Liens created for the benefit of (or to secure) the Securities of such Series (or the
Guarantees);
(h) Liens in favor of the Trustee granted in accordance with this Indenture;
(i) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded,
provided
that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor; and
(j) other Liens, in addition to those permitted in clauses (a) through (i) above, securing
Indebtedness having an aggregate principal amount (including all Indebtedness incurred pursuant
to clause (d) above to renew, refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (j)), measured as of the date of the incurrence of any such
Indebtedness (giving
pro forma
effect to the application of the proceeds therefrom and any
transaction in connection with which such Indebtedness is being incurred), taken together with
the amount of all Attributable Debt of the Company and its Subsidiaries at that time outstanding
relating to Sale and Leaseback Transactions permitted under Section 4.9, not to exceed the
greater of (a) 15% of the Companys Consolidated Net Tangible Assets measured as of the date of
the incurrence of any such Indebtedness (giving
pro forma
effect to the application of the
proceeds therefrom and any transaction in connection with which such Indebtedness is being
incurred) or (b) $1.5 billion.
For purposes of clause (j) of this definition of Permitted Liens, (i) with respect to any
revolving credit facility secured by a Lien, the full amount of Indebtedness that may be borrowed
thereunder will be deemed to be incurred at the time any revolving credit commitment thereunder is
first extended or increased and will not be deemed to be incurred when such revolving credit
facility is
4
drawn upon and (ii) if a Lien of the Company or any of its Wholly Owned Domestic Subsidiaries
is granted to secure Indebtedness that was previously unsecured, such Indebtedness will be deemed
to be incurred as of the date such Indebtedness is secured.
Person means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or other entity,
government or any agency or political subdivision thereof.
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.
Principal Property means any building, structure or other facility located within the United
States (other than its territories and possessions) and owned by the Company or any Wholly Owned
Domestic Subsidiary, the book value of which is not less than 0.5% of the Companys Consolidated
Net Tangible Assets. For purposes of this definition, book value will be measured at the time the
relevant Lien is being created or, in the case of any Lien incurred pursuant to clause (j) of the
definition of Permitted Liens, at the time the relevant secured Indebtedness is deemed to be
incurred.
Responsible Officer means any officer of the Trustee in its Corporate Trust Office who shall
have direct responsibility for the administration of this Indenture and also means, with respect to
a particular corporate trust matter, any other officer to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with a particular subject.
SEC means the Securities and Exchange Commission or any successor agency.
Securities means the senior unsecured debentures, senior unsecured notes or other senior
unsecured debt instruments of the Company of any Series authenticated and delivered under this
Indenture.
Securities Act means the Securities Act of 1933, as amended.
Series or Series of Securities means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
Significant Subsidiary means any Subsidiary which is a significant subsidiary within the
meaning of Rule 405 under the Securities Act.
Stated Maturity means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
Subsidiary means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof);
and (ii) any partnership (A) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (B) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination thereof).
TIA means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the
date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, TIA means, to the extent required by any such amendment, the Trust
Indenture Act as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean each Person who is then a Trustee hereunder, and if
at any time there is more than one such Person, Trustee as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.
Wholly Owned Domestic Subsidiary means, with respect to any Person, any Domestic Subsidiary
of such Person, the Capital Stock of which is 100% owned and controlled, directly or indirectly
through one or more other Wholly Owned Domestic Subsidiaries, by such Person.
5
Section 1.2
Other Definitions
.
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DEFINED IN
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TERM
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SECTION
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Event of Default
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6.1
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Legal Holiday
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12.7
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mandatory sinking fund payment
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13.1
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Market Exchange Rate
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12.16
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optional sinking fund payment
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13.1
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Paying Agent
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2.4
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Registrar
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2.4
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Sale and Leaseback Transaction
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4.9
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Service Agent
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2.4
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Section 1.3
Incorporation by Reference of Trust Indenture Act
.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Holder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company, any successor obligor upon the
Securities or a Guarantor.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.
Section 1.4
Rules of Construction
.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles;
(c) references to generally accepted accounting principles and GAAP shall mean generally
accepted accounting principles in effect as of the time when and for the period as to which such
accounting principles are to be applied;
(d) or is not exclusive;
(e) will shall be interpreted to express a command;
(f) words in the singular include the plural, and in the plural include the singular;
(g) provisions apply to successive events and transactions; and
(h) references to sections of or rules under the Securities Act will be deemed to include
substitute, replacement of successor sections or rules adopted by the SEC from time to time.
6
ARTICLE II.
THE SECURITIES
Section 2.1
Issuable in Series
.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of
a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers Certificate or supplemental indenture detailing the
adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ between Series in
respect of any matters, provided that all Series of Securities shall be equally and ratably
entitled to the benefits of the Indenture.
Section 2.2
Establishment of Terms of Series of Securities
.
At or prior to the issuance of any Securities within a Series, the following shall be
established by or pursuant to a Board Resolution, and set forth or determined in the manner
provided in a Board Resolution or in a supplemental indenture or in an Officers Certificate
pursuant to authority granted under a Board Resolution:
(a) the title of the Series (which shall distinguish the Securities of that particular
Series from the Securities of any other Series);
(b) the price or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the Series will be issued;
(c) any limit upon the aggregate principal amount of the Securities of the Series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
(d) the date or dates on which the principal of the Securities of the Series is payable;
(e) the rate or rates (which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not limited to, any currency exchange
rate, commodity, commodity index, stock exchange index or financial index) at which the
Securities of the Series shall bear interest, if any, the date or dates from which such interest,
if any, shall accrue, or the method for determining the date or dates from which interest will
accrue, the date or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
(f) the manner in which the amounts of payment of principal of or interest, if any, on the
Securities of the Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a currency exchange rate, commodity,
commodity index, stock exchange index or financial index;
(g) if other than the Corporate Trust Office, the place or places where the principal of,
premium, if any and interest, if any, on the Securities of the Series shall be payable, where the
Securities of such Series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served, and the method of such payment, if by wire transfer, mail or other
means;
(h) if applicable, the period or periods within which, the price or prices at which and the
terms and conditions upon which the Securities of the Series may be redeemed, in whole or in
part, at the option of the Company;
(i) the obligation, if any, of the Company to redeem or purchase the Securities of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(j) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which the Securities of the Series shall be issuable;
7
(k) the forms of the Securities of the Series in bearer or fully registered form (and, if in
fully registered form, whether the Securities of the Series shall be issued in whole or in part
in the form of a Global Security or Securities, and the terms and conditions, if any, upon which
such Global Security or Securities may be exchanged in whole or in part for other individual
Securities);
(l) any depositories, interest rate calculation agents, exchange rate calculation agents or
other agents with respect to Securities of such Series if other than those appointed herein;
(m) the Trustee for the series of Securities, if other than the Trustee named on the first
page hereof or its Successors;
(n) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;
(o) any addition or deletion to or change in the covenants set forth in Articles IV or V
which applies to Securities of the Series;
(p) any addition or deletion to or change in the Events of Default which applies to any
Securities of the Series and any change in the right of the Trustee or the requisite Holders of
such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
(q) if other than Dollars, the currency of denomination of the Securities of the Series,
which may be any Foreign Currency, and if such currency of denomination is a composite currency,
the agency or organization, if any, responsible for overseeing such composite currency;
(r) if other than Dollars, the designation of the currency, currencies or currency units in
which payment of the principal of and any premium and interest, if any, on the Securities of the
Series will be made;
(s) if payments of principal of premium, if any, or interest, if any, on the Securities of
the Series are to be made in one or more currencies or currency units other than that or those in
which such Securities are denominated, the manner in which the exchange rate with respect to such
payments will be determined;
(t) the securities exchange(s) on which the Securities of the Series will be listed, if any;
(u) additions or deletions to or changes in the provisions relating to covenant defeasance
and legal defeasance;
(v) additions or deletions to or changes in the provisions relating to satisfaction and
discharge of the indenture;
(w) additions or deletions to or changes in the provisions relating to the modification of
the indenture both with and without the consent of holders of Securities of the Series issued
under the indenture; and
(x) any other terms of the Securities of the Series (which terms may modify, supplement or
delete any provision of this Indenture with respect to such Series; provided, however, that no
such term may modify or delete any provision hereof if imposed by the TIA; and provided, further,
that any modification or deletion of the rights, duties or immunities of the Trustee hereunder
shall have been consented to in writing by the Trustee).
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers Certificate referred to above, and the
authorized principal amount of any Series may be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution, supplemental
indenture or Officers Certificate.
Section 2.3
Execution and Authentication
.
Two Officers shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
8
A Security shall not be valid until authenticated by the manual or facsimile signature of the
Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be
dated the date of its authentication unless otherwise provided by a Board Resolution, a
supplemental indenture hereto or an Officers Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers Certificate delivered pursuant to Section
2.2, except as provided in Section 2.9.
Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers Certificate complying with Section 12.4, and (c)
an Opinion of Counsel complying with Section 12.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken
lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
Section 2.4
Registrar and Paying Agent
.
The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (Paying Agent), where Securities of
such Series may be surrendered for registration of transfer or exchange (Registrar) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (Service Agent). The Registrar shall keep a register with respect to each
Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any
such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with
the name and address thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified
pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
name or address of any such co-registrar, additional paying agent or additional service agent. The
term Registrar includes any co-registrar; the term Paying Agent includes any additional paying
agent; and the term Service Agent includes any additional service agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.
Section 2.5
Paying Agent to Hold Money in Trust
.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust, for the benefit of Holders of any Series of Securities, or the
Trustee, all money held by the Paying Agent for the payment of
9
principal of or interest on the Series of Securities, and will notify the Trustee of any
default by the Company in making any such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no
further liability for the money. If the Company or a Subsidiary of the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any
Series of Securities all money held by it as Paying Agent.
Section 2.6
Holder Lists
.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of each Series of Securities and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least ten days before each interest payment date and at such other times as the
Trustee may request in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Holders of each Series of Securities.
Section 2.7
Transfer and Exchange
.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrars request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
Section 2.8
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
10
Every new Security of any Series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 2.9
Outstanding Securities
.
Subject to Section 2.10, the Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
the Company) holds as of 12:00 p.m. Eastern Time on the date of Maturity of Securities of a Series
money sufficient to pay such Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10
Treasury Securities
.
In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Company or an Affiliate of the Company shall be disregarded,
except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver only Securities of a
Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11
Temporary Securities
.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities
shall have the same rights under this Indenture as the definitive Securities.
Section 2.12
Cancellation
.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange, replacement or payment. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment, replacement or cancellation and deliver such canceled
Securities to the Company, unless the Company otherwise directs; provided that the Trustee shall
not be required to destroy Securities. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
11
Section 2.13
Defaulted Interest
.
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the Persons who are Holders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 10 days before the record date, the
Company shall mail to the Trustee and to each Holder of the Series a notice that states the record
date, the payment date and the amount of interest to be paid. The Company may pay defaulted
interest in any other lawful manner.
Section 2.14
Special Record Dates
.
(a) The Company may, but shall not be obligated to, set a record date for the purpose of
determining the identity of Holders entitled to consent to any supplement, amendment or waiver
permitted by this Indenture. If a record date is fixed, the Holders of such Series and Securities
outstanding on such record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or effective for more than 90 days
after such record date unless consents from Holders of the principal amount of such Series and
Securities required hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
(b) The Company may, but shall not be obligated to, fix any day as a record date for the
purpose of determining the Holders of any Series of Securities entitled to join in the giving or
making of any notice of Default, any declaration of acceleration, any request to institute
proceedings or any other similar direction. If a record date is fixed, the Holders of such Series
and Securities outstanding on such record date, and no other Holders, shall be entitled to join in
such notice, declaration, request or direction, whether or not such Holders remain Holders after
such record date; provided, however, that no such action shall be effective hereunder unless taken
on or prior to the date 90 days after such record date.
Section 2.15
Global Securities
.
2.15.1
Terms of Securities
. A Board Resolution, a supplemental indenture hereto or an
Officers Certificate shall establish whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Global Securities and the Depository for such Global Security
or Securities.
2.15.2
Transfer and Exchange
. Notwithstanding any provisions to the contrary contained
in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other
than the Depository for such Security or its nominee only if (i) such Depository notifies the
Company that it is unwilling or unable to continue as Depository for such Global Security or if at
any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Company fails to appoint a successor Depository registered as a clearing agency
under the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the
Trustee an Officers Certificate to the effect that such Global Security shall be so exchangeable
(subject to the procedures of the Depository) or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened and be continuing. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depository shall direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.15.2, a Global Security may not be transferred except as
a whole by the Depository with respect to such Global Security to a nominee of such Depository, by
a nominee of such Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.15.3
Legend
. Any Global Security issued hereunder shall bear a legend in
substantially the following form:
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (DTC), New York, New York, to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is registered in the name
of Cede & Co. or such other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co. has an interest herein.
12
Transfer of this Global Security shall be limited to transfers in whole, but not in part, to
DTC, to nominees of DTC or to a successor thereof or such successors nominee and limited to
transfers made in accordance with the restrictions set forth in the Indenture referred to herein.
2.15.4
Acts of Holders
. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.15.5
Payments
. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.
2.15.6
Consents, Declaration and Directions
. Except as provided in Section 2.15.5, the
Company, the Trustee and any Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Global Security as shall be specified in a
written statement of the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to
this Indenture.
Section 2.16
CUSIP Numbers
.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use), and,
if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other elements of identification printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of such numbers.
Section 2.17
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered in the Register as the owner of such Security for the purpose of receiving payment of
principal of and (subject to the record date provisions thereof) interest on and any Additional
Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any
payment with respect to such Security shall be overdue, and none of the Company, the Trustee or any
agent of the Company or the Trustee shall be affected by notice to the contrary. The Company, the
Trustee and any agent of the Company or the Trustee may treat the bearer of a Bearer Security as
the absolute owner thereof for the purpose of receiving payment of principal of and interest on and
any Additional Amounts with respect to, such Security and for all other purposes whatsoever,
whether or not any payment with respect to such Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such Global Security, and such
Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee,
any Paying Agent or the Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
ARTICLE III.
REDEMPTION
Section 3.1
Notice to Trustee
.
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem
prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms
of such Securities, it shall notify the Trustee of the redemption date and the principal amount of
Series of Securities to be redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
13
Section 3.2
Selection of Securities to be Redeemed
.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed by such method as
the Trustee shall deem fair and appropriate.
In the event of partial redemption, the Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may select for redemption
a portion of the principal amount of any Security of such Series; provided that the unredeemed
portion of the principal amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security. Provisions of this
Indenture that apply to Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.
Section 3.3
Notice of Redemption
.
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers Certificate, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one
occasion a notice in an Authorized Newspaper, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of
the Series of Securities or a satisfaction and discharge of this Indenture pursuant to Articles
VIII or XI hereof.
The notice shall identify the Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price (or if not then ascertainable, the manner of calculation thereof);
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(e) that interest on Securities of the Series called for redemption ceases to accrue on and
after the redemption date;
(f) the CUSIP number, if any; and
(g) any other information as may be required by the terms of the particular Series or the
Securities of a Series being redeemed.
At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense as long as the Trustee is given at least 5 Business Days prior notice of
the requested date of the giving of such notice (or such shorter notice as may be acceptable to the
Trustee).
Section 3.4
Effect of Notice of Redemption
.
Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. A notice of redemption at the option of the Company may not be conditional. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to
the redemption date;
provided
that, unless otherwise specified with respect to such Securities
pursuant to Section 2.2 hereof, installments of interest whose Stated Maturity is on or prior to
the redemption date shall be payable to the Holders of such Securities (or one or more predecessor
Securities) registered at the close of business on the relevant record date therefor according to
their terms and the terms of this Indenture.
Section 3.5
Deposit of Redemption Price
.
On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date.
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Section 3.6
Securities Redeemed in Part
.
Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1
Payment of Principal and Interest
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay or cause to be paid the principal of, premium, if any, and interest on, the
Securities of that Series on the dates and in the manner provided in such Securities. Principal,
premium, if any, and interest on any Series of Securities will be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 12:00 p.m.
Eastern Time on the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal with respect to such Securities at the rate specified therefor in the
Securities; it will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.2
Additional Amounts
.
If any Securities of a Series provide for the payment of Additional Amounts, the Company
agrees to pay to the Holder of any such Security Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of or interest on, or in respect of, any Security of any Series, such
mention shall be deemed to include mention of the payment of Additional Amounts provided by the
terms of such Series established hereby or pursuant hereto to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and
express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall
not be construed as excluding Additional Amounts in those provisions hereof where such express
mention is not made.
Section 4.3
Maintenance of Office or Agency
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will maintain an office or agency (which may be an office of the Trustee for such
Securities or an affiliate of such Trustee, Registrar for such Securities or co-registrar) where
such Securities may be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of such Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee for such Securities of the location, and
any change in the location, of such office or agency. If at any time the Company fails to maintain
any such required office or agency or fails to furnish such Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of such Trustee.
The Company may also from time to time designate one or more other offices or agencies where
Holders of a Series of Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations. The Company will give prompt written notice to the
Trustee for such Series of Securities of any such designation or rescission and of any change in
the location of any such other office or agency.
With respect to each Series of Securities, the Company hereby designates the Corporate Trust
Office of the Trustee for such Securities as one such office or agency of the Company in accordance
with Section 2.5 hereof.
Section 4.4
SEC Reports
.
Unless otherwise specified with respect to Securities of a particular Series pursuant to
Section 2.2, the Company will, if and to the extent required under the TIA:
15
(a) file with the Trustee, within 15 days after the Company is required to file the same
with the SEC, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company may be required to file with the SEC pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file with the Trustee and the
SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of
the supplementary and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with rules and regulations prescribed
from time to time by the SEC, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) transmit by mail to the Holders of Securities in the manner and to the extent provided
in Section 7.6 within 30 days after the required filing thereof with the Trustee, such summaries
of any information, documents and reports required to be filed by the SEC pursuant to subsections
(a) and (b) of this Section as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the SEC;
(d) The delivery of such reports, information and documents to the Trustee pursuant to this
Section 4.4 is for informational purposes only and the Trustees receipt of such shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Companys compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates). In
addition, any reports, information and documents referred to in this Section 4.4 shall be deemed
to be delivered to the Trustee and the Holders at the time such reports, information and
documents are publicly filed with the SEC via the EDGAR filing system (or any successor system).
Section 4.5
Compliance Certificate
.
(a) The Company and each Guarantor of any Series of Securities (to the extent that such
Guarantor is so required under the TIA) shall deliver to the Trustee with respect to such Series,
within 120 days after the end of each fiscal year, an Officers Certificate stating that a review
of the activities of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of his or her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Series of Securities is prohibited or if such event
has occurred, a description of the event and what action the Company is taking or proposes to take
with respect thereto.
(b) So long as any Series of Securities is outstanding, the Company will deliver to the
Trustee with respect to such Series, promptly upon any Officer becoming aware of any Default or
Event of Default, an Officers Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.6
Taxes
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will pay, and will cause each of its Subsidiaries to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except such as are contested in good faith and
by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of such Securities.
Section 4.7
Stay, Extension and Usury Laws
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
(to the extent that it may lawfully do so) that it will not, and each Guarantor of such Securities
will not, at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in
force, that
16
may affect the covenants or the performance of this Indenture; and the Company and each such
Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee for such Securities, but will
suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.8
Corporate Existence
.
Subject to Article V hereof, the Company covenants and agrees for the benefit of the Holders
of each Series of Securities that it shall do or cause to be done all things necessary to preserve
and keep in full force and effect its legal existence and rights and franchises; provided, however,
that the foregoing shall not obligate the Company to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not adverse in any material respect to any Holder.
Section 4.9
Sale and Leaseback Transactions.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that it will not, and will not permit any of its Subsidiaries
to, enter into any arrangement with any other Person pursuant to which the Company or any of its
Subsidiaries leases any property that has been or is to be sold or transferred by the Company or
the Subsidiary to such other Person (a Sale and Leaseback Transaction), except that a Sale and
Leaseback Transaction is permitted if the Company or such Subsidiary would be entitled to incur
Indebtedness secured by a Lien on the property to be leased (without equally and ratably securing
the Securities of any Series) in an aggregate principal amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction.
In addition, the following Sale and Leaseback Transactions are not subject to the limitation
in the immediately preceding paragraph and the provisions described in Section 4.10:
(a) temporary leases for a term, including renewals at the option of the lessee, of not more
than three years;
(b) leases between only the Company and a Subsidiary of the Company or only between
Subsidiaries of the Company;
(c) leases where the proceeds from the sale of the subject property are at least equal to the
fair market value (as determined in good faith by the Company) of the subject property and the
Company applies an amount equal to the net proceeds of the sale to the retirement of long-term
Indebtedness or to the purchase of other property or equipment used or useful in its business,
within 270 days of the effective date of such sale; provided that in lieu of applying such amount
to the retirement of long-term Indebtedness, the Company may deliver Securities or other debt
securities to the applicable trustee for cancellation, such Securities or other debt securities to
be credited at the cost thereof to the Company; and
(d) leases of property executed by the time of, or within 270 days after the latest of, the
acquisition, the completion of construction or improvement, or the commencement of commercial
operation, of the subject property.
Section 4.10
Liens.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that it shall not, and shall not permit any of its Wholly
Owned Domestic Subsidiaries to, create, incur, assume or permit to exist any Lien (except Permitted
Liens) on (1) any Principal Property or (2) the Capital Stock of any Subsidiary, in each case to
secure Indebtedness of the Company, any Subsidiary of the Company or any other Person, unless the
Securities of each Series are secured, equally and ratably with such other Indebtedness (or on a
senior basis if the Obligations so secured are subordinated Indebtedness), for so long as such
other Indebtedness is so secured. Any Lien that is granted to secure the Securities of any Series
pursuant to this Section 4.10 shall be automatically released and discharged at the same time as
the release of the Lien that gave rise to the obligation to secure the Securities of such Series
pursuant to this Section 4.10.
17
Section 4.11
Future Subsidiary Guarantees.
(a) Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that if the Company or any of its Subsidiaries acquires or
creates a Domestic Subsidiary after the date hereof, including if a Subsidiary that is not a
Domestic Subsidiary becomes a Domestic Subsidiary after the date hereof, and such Domestic
Subsidiary guarantees any other Indebtedness of the Company, then such Domestic Subsidiary will
become a Guarantor and will execute a supplemental indenture and deliver an Opinion of Counsel
satisfactory to the Trustee within thirty (30) Business Days of the date on which it was acquired
or created. The obligations of each Guarantor under its Guarantee will be limited so as not to
constitute a fraudulent conveyance under applicable law.
(b) Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, the Company covenants and agrees for the benefit of the
Holders of each Series of Securities that if any Guarantor that is released from its Guarantee
pursuant to Section 10.04 thereafter guarantees any Indebtedness of the Company (other than the
Securities), then that former Guarantor (to the extent it is a Domestic Subsidiary) shall again
guarantee the Securities on the terms and conditions set forth in this Indenture.
ARTICLE V.
SUCCESSORS
Section 5.1
Merger, Consolidation, or Sale of Assets
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it shall not, directly or indirectly consolidate or merge with or into (whether or not the
Company is the surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related transactions, to
another Person unless (i) the Company is the surviving or continuing corporation or the Person
formed by or surviving any such consolidation or merger (if other than the Company) or to which
such sale, assignment, transfer, lease, conveyance or other disposition has been made is a
corporation, partnership, limited liability company, trust or other entity organized or existing
under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person
formed by or surviving any such consolidation or merger (if other than the Company) or the Person
to which such sale, assignment, transfer, lease, conveyance or other disposition has been made (if
other than the Company) assumes all the Obligations of the Company under the Securities and this
Indenture pursuant to agreements reasonably satisfactory to the Trustee; and (iii) immediately
after such transaction no Default or Event of Default exists.
This Section 5.1 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of reincorporating the
Company in another jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or
other disposition of assets between or among the Company and its Subsidiaries.
Section 5.2
Successor Person Substituted.
In the case of any such consolidation, merger, sale, transfer or other conveyance in a
transaction in which there is a successor person, the successor person will succeed to, and be
substituted for, the Company under this Indenture and, subject to the terms of this Indenture, the
Company will be released from the obligation to pay principal and interest on the Securities and
all other Obligations under this Indenture.
Section 5.3
Delivery of Officers Certificate and Opinion of Counsel
The Company shall deliver to the Trustee an Officers Certificate and Opinion of Counsel
stating that any such consolidation, merger or sale complies with the conditions set forth in this
Article 5.
18
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1
Events of Default
.
Event of Default, wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:
(a) the Company defaults in the payment when due of any interest on any Security of that
Series, and such default continues for a period of 30 days;
(b) the Company defaults in payment when due of the principal of or premium, if any, on any
Security of that Series;
(c) the Company defaults in the deposit of any sinking fund payment, when and as due in
respect of any Security of that Series;
(d) the Company fails to comply with any of the provisions of Section 5.1 hereof;
(e) the Company fails to comply with any of its other agreements in this Indenture (other than
a covenant or warranty that has been included in this Indenture solely for the benefit of a Series
of Securities other than that Series), which default continues uncured for 90 days after written
notice is received by the Company and the Trustee from Holders of at least 25% in aggregate
principal amount of the Securities of such Series then outstanding;
(f) a default occurs under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of its Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the applicable Issue Date,
which default relates to a payment at final maturity or results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal amount of such
Indebtedness, together with the principal amount of all other Indebtedness that is not paid at
final maturity or the maturity of which has been so accelerated, aggregates $100.0 million or more;
(g) failure by the Company or any of its Subsidiaries to pay a final judgments aggregating in
excess of $100.0 million, which judgments are not paid, discharged or stayed for a period of 60
days;
(h) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of
its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due;
(i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant Subsidiaries in an
involuntary case;
(ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or for all
or substantially all of the property of the Company or any of its Significant Subsidiaries; or
(iii) orders the liquidation of the Company or any of its Significant Subsidiaries;
19
and the order or decree remains unstayed and in effect for 60 consecutive days;
(j) except as permitted herein, any Guarantee of a Significant Subsidiary shall be held in any
judicial proceeding to be unenforceable or invalid; and
(k) any other Event of Default provided with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers Certificate, in
accordance with Section 2.2.
Section 6.2
Acceleration
.
If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(h) or (i)) then in
every such case the Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of
such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of
Default specified in Section 6.1(h) or (i) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall
ipso facto
become
and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made,
the Holders of a majority in principal amount of the outstanding Securities of that Series, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.3
Other Remedies
.
If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing, the Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on such Securities or to enforce the performance of any provision of
such Securities or this Indenture.
The Trustee for such Securities may maintain a proceeding even if it does not possess any of
such Securities or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of Securities in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event
of Default. All remedies are cumulative to the extent permitted by law.
Section 6.4
Waiver of Past Defaults
.
Holders of not less than a majority in aggregate principal amount of the then outstanding
Securities of any Series by notice to the Trustee for such Securities may on behalf of the Holders
of all of such Securities waive an existing Default or Event of Default with respect to such
Securities and its consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, such Securities; provided, however,
that the Holders of a majority in aggregate principal amount of the then outstanding Securities of
any Series may rescind an acceleration of such Securities and its consequences, including any
related payment default that resulted from such acceleration. Upon any such waiver, such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
20
Section 6.5
Control by Majority
.
Holders of a majority in aggregate principal amount of the then outstanding Securities of any
Series may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee for such Securities or exercising any trust or power conferred on it.
However, the Trustee for any Series of Securities may refuse to follow any direction that conflicts
with law or this Indenture that such Trustee determines may be unduly prejudicial to the rights of
other Holders of such Securities or that may involve the Trustee in personal liability.
Section 6.6
Limitation on Suits
.
A Holder of any Series of Securities may pursue a remedy with respect to this Indenture or
such Securities only if:
(1) such Holder gives to the Trustee for such Securities written notice that an Event of
Default with respect to such Series is continuing;
(2) Holders of more than 50% in aggregate principal amount of the then outstanding
Securities of such Series make a written request to the Trustee for such Securities to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the Trustee for such
Securities security or indemnity satisfactory to such Trustee against any loss, liability or
expense;
(4) such Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(5) during such 60-day period, Holders of a majority in aggregate principal amount of the
then outstanding Securities of such Series do not give such Trustee a direction inconsistent with
such request.
A Holder of any Series of Securities may not use this Indenture to prejudice the rights of
another Holder of such Series of Securities or to obtain a preference or priority over another
Holder of Securities of such Series.
Section 6.7
Rights of Holders of Securities to Receive Payment
.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
of any Series to receive payment of principal, premium, if any, and interest on such Securities, on
or after the respective due dates expressed in such Securities (including, if applicable, in
connection with an offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 6.8
Collection Suit by Trustee
.
If an Event of Default specified in Section 6.1(a), (b) or (c) hereof with respect to
Securities of any Series occurs and is continuing, the Trustee for such Securities is authorized to
recover judgment in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on, such Securities
and interest on overdue principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.
Section 6.9
Trustee May File Proofs of Claim
.
The Trustee for each Series of Securities is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel) and the Holders of the Securities for which it acts as trustee
allowed in any judicial proceedings relative to the Company (or any other obligor upon such
Securities), its creditors or its property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable on any such claims and any
Custodian in any such judicial proceeding is hereby authorized by each Holder of such Securities to
make such payments to such Trustee, and in the event that such Trustee shall consent to the making
of such payments directly to such Holders, to pay to such Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and
counsel, and any other amounts due such Trustee under the Indenture. To the extent that the payment
of any such
21
compensation, expenses, disbursements and advances of such Trustee, its agents and counsel,
and any other amounts due such Trustee out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties that such Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize such Trustee to
authorize or consent to or accept or adopt on behalf of any Holder for which it acts as trustee any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of such Holder, or to authorize such Trustee to vote in respect of the claim of any such
Holder in any such proceeding.
Section 6.10
Priorities
.
If the Trustee of any Series of Securities collects any money pursuant to this Article VI, it
shall pay out the money in the following order:
First
: to the Trustee, its agents and attorneys for amounts due under the Indenture,
including payment of all compensation, expenses and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
Second
: to Holders of such Securities for amounts due and unpaid on such Securities
for principal, premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium, if any and
interest, respectively; and
Third
: to the Company or to such party as a court of competent jurisdiction shall
direct.
Subject to Section 2.13 hereof, the Trustee may fix a record date and payment date for any
payment to Holders of Securities pursuant to this Section 6.10.
Section 6.11
Undertaking for Costs
.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against any Trustee for any action taken or omitted by it as a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.7 hereof, or a suit by
Holders of more than 10% in aggregate principal amount of the then outstanding Securities of any
Series.
ARTICLE VII.
TRUSTEE
Section 7.1
Duties of Trustee
.
(a) Subject to Section 7.2(i), if an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree
of care and skill in its exercise as a prudent person would exercise or use under the circumstances
in the conduct of such persons own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon Officers
Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such Officers Certificates and Opinions of Counsel to determine whether or
not they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
22
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted
to be taken by it with respect to Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the outstanding Securities of such
Series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power at the request
or direction of any Holder unless it receives written direction and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk its own funds or
otherwise incur any financial liability in the performance of any of its duties, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the
protections, immunities and standard of care as are set forth in paragraphs (b) and (c) of this
Section with respect to the Trustee.
Section 7.2
Rights of Trustee
.
(a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining
from acting upon any document believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
and/or Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers Certificate or in reliance on written direction from
requisite holders.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care. No Depository shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers, provided that the Trustees
conduct does not constitute negligence or willful misconduct.
(e) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders of Securities unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction.
(f) The Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder without negligence and in good faith and in
reliance thereon.
23
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default (other
than a payment default under Sections 6.1(a), (b) or (c) hereof) unless written notice of any event
which is in fact such a default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities generally or the
Securities of a particular Series and this Indenture.
(i) The Trustee shall not be required to provide any bond or surety with respect to the
execution of these trusts and powers.
(j) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(k) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
(l) In the absence of a written agreement signed by the Trustee, the Trustee shall not be
liable for interest on any funds deposited with the Trustee.
(m) The Trustee may request that the Company deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to
this Indenture.
Section 7.3
Individual Rights of Trustee
.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4
Trustees Disclaimer
.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Companys use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its authentication.
The Trustee has no responsibility for or liability in connection with any filing of financing
statements or perfection of any lien or security interest purported to be created hereunder.
Section 7.5
Notice of Defaults
.
If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Holder of the Securities of that Series and, if any Bearer Securities are outstanding, mail in
the manner provided by in TIA § 313(c), notice of a Default or Event of Default within 90 days
after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such
Default or Event of Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may withhold the notice if and
so long as its corporate trust committee or a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Holders of that Series.
Section 7.6
Reports by Trustee to Holders
.
Within 60 days after May 15 in the first year following the issuance of a Series of Securities
under this Indenture, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear on the register kept by the Registrar and, if any Bearer Securities are
outstanding, transmit by mail in accordance with TIA § 313(c), a brief report dated as of such May
15, in accordance with, and to the extent required under, TIA § 313(a).
24
A copy of each report at the time of its mailing to Holders of any Series shall be filed by
the Trustee with the SEC and each stock exchange on which the Securities of that Series are listed,
if any. The Company shall promptly notify the Trustee when Securities of any Series are listed on
any stock exchange.
25
Section 7.7
Compensation and Indemnity
.
The Company shall pay to the Trustee from time to time such compensation for its services as
the Company and the Trustee shall from time to time agree upon in writing. The Trustees
compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred
by it. Such expenses shall include the reasonable compensation and expenses of the Trustees agents
and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the
cost of defending itself) against any loss, liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred by it in the
performance of its duties under this Indenture as Trustee or Agent (except as set forth in the next
paragraph). The Trustee shall notify the Company promptly of any claim of which a Responsible
Officer has received written notice and for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not unreasonably be withheld.
This indemnification shall apply to officers, directors, employees, shareholders and agents of the
Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
its own negligence or willful misconduct.
To secure the Companys payment obligations in this Section, the Trustee shall have a lien
prior to the Securities of any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(h) or (i) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture.
Section 7.8
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more Series by so notifying
the Company at least 30 days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with
respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed with respect to the Securities of a Series or if a
vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee with respect to the Securities of such Series. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities of such Series may appoint a successor Trustee with respect to the
Securities of such Series to replace the successor Trustee appointed by the Company.
26
If a successor Trustee with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, at
the expense of the Company, the Company or the Holders of at least 10% in principal amount of the
Securities of the applicable Series may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall upon payment of its
charges hereunder transfer all property held by it as Trustee to the successor Trustee subject to
the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee with respect to each Series of Securities for which it is acting as Trustee under this
Indenture. A successor Trustee shall mail a notice of its succession to each Holder of each such
Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an
Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Companys obligations under Section 7.7 hereof shall continue for the benefit of the retiring
Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9
Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee.
Section 7.10
Eligibility; Disqualification
.
This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000
as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b).
Section 7.11
Preferential Collection of Claims Against Company
.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Option to Effect Legal Defeasance or Covenant Defeasance
.
The Company may at any time elect to have either Section 8.2 or 8.3 hereof be applied to all
outstanding Securities of any Series upon compliance with the conditions set forth below in this
Article VIII.
Section 8.2
Legal Defeasance and Discharge
.
Upon the Companys exercise under Section 8.1 hereof of the option applicable to this Section
8.2, the Company and each Guarantor, if any, of such Securities will, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its or
their obligations with respect to all outstanding Securities of such Series (including the related
guarantees, if any) on the date the conditions set forth below are satisfied (hereinafter, Legal
Defeasance). For this purpose, Legal Defeasance means that the Company and such Guarantors will be
deemed to have paid and discharged the entire indebtedness represented by the outstanding
Securities of such Series (including the related guarantees, if any), which will thereafter be
deemed to be outstanding only for the purposes of Section 8.5 hereof and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied all its or their
other obligations under such Securities, such guarantees, if any, and this Indenture (and the
Trustee for such Securities, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which will survive until
otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Securities of such Series to receive payments in
respect of the principal of, or interest or premium, if any, on, such Securities when such
payments are due from the trust referred to in Section 8.4 hereof;
(2) the Companys obligations with respect to such Securities under Article II hereof;
27
(3) the rights, powers, trusts, duties and immunities of the Trustee for such Securities
hereunder and the Companys and the Guarantors, if any, obligations in connection therewith; and
(4) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its option under this
Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 hereof.
Section 8.3
Covenant Defeasance
.
Upon the Companys exercise under Section 8.1 hereof of the option applicable to this Section
8.3, the Company and each of the Guarantors, if any, will, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be released from each of their or its obligations under
the covenants contained in Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11 and 5.1, Article X and
all covenants specified in a Board Resolution, a supplemental indenture hereto or an Officers
Certificate, in accordance with Section 2.2, with respect to the outstanding Securities of the
applicable Series on and after the date the conditions set forth in Section 8.4 hereof are
satisfied (hereinafter, Covenant Defeasance), and such Securities will thereafter be deemed not
outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders
of such Securities (and the consequences of any thereof) in connection with such covenants, but
will continue to be deemed outstanding for all other purposes hereunder (it being understood that
such Securities will not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Securities of such Series, the Company may
omit to comply with and will have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply will not constitute a Default
or an Event of Default under Section 6.1 hereof, but, except as specified above, the remainder of
this Indenture and such Securities will be unaffected thereby. In addition, upon the Companys
exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(d) through (g) and
Sections 6.1(j) and (k) hereof will not constitute Events of Default.
Section 8.4
Conditions to Legal or Covenant Defeasance
.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.2
or 8.3 hereof with respect to Securities of any Series:
(1) the Company must irrevocably deposit with the Trustee for such Securities, in trust, for
the benefit of the Holders of such Securities, cash in U.S. dollars, non-callable Government
Securities or foreign government obligations, or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm
of independent public accountants, to pay the principal of, premium, if any, and interest on, the
outstanding Securities of such Series on the stated date for payment thereof or on the applicable
redemption date, as the case may be, and the Company must specify whether such Securities are
being defeased to such stated date for payment or to a particular redemption date;
(2) in the case of an election under Section 8.2 hereof, the Company must deliver to the
Trustee for such Securities an Opinion of Counsel confirming that:
(A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or
(B) since the date of this Indenture, there has been a change in the applicable federal
income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Securities of such Series will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.3 hereof, the Company must deliver to the
Trustee for such Securities an Opinion of Counsel confirming that the Holders of such Securities
will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant Defeasance had not
occurred;
28
(4) no Default or Event of Default with respect to such Securities shall have occurred and
be continuing on the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to which the Company
or any Guarantor of such Securities is a party or by which the Company or any such Guarantor is
bound;
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation
of, or constitute a default under, any material agreement or instrument (other than this
Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee for such Securities an Officers Certificate
stating that the deposit was not made by the Company with the intent of preferring the Holders of
such Securities over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others; and
(7) the Company must deliver to the Trustee for such Securities an Officers Certificate and
an Opinion of Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section 8.5
Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions
.
Subject to Section 8.6 hereof, all money and non-callable Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.5, the Trustee) pursuant to Section 8.4 hereof in respect of the
outstanding Securities of any Series will be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.4 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Securities of the
applicable Series.
Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.4 hereof which, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(1) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6
Repayment to Company
.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on, any Series of
Securities and remaining unclaimed for two years after such principal, premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if then held by the
Company) will be discharged from such trust; and the Holders of such Securities will thereafter be
permitted to look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.7
Reinstatement
.
If, in connection with a Legal Defeasance or Covenant Defeasance, the Trustee or Paying Agent
is unable to apply any U.S. dollars or non-callable Government Securities in accordance with
Section 8.5, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Companys and any applicable
Guarantors obligations under this Indenture and the applicable Securities and the guarantees will
be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.5; provided, however, that, if the Company makes any payment of principal of or
interest on any such Securities following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
29
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1
Without Consent of Holders
.
Notwithstanding Section 9.2 of this Indenture, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series without the consent of
any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or in place of certificated
Securities;
(c) to provide for the assumption of the Companys obligations to the Holders of the
Securities by a successor to the Company pursuant to Article V hereof;
(d) to add any additional Events of Default with respect to all or any series of Securities
Outstanding hereunder;
(e) to secure the Securities pursuant to the requirements of any covenant on liens in
respect of such series of Securities or otherwise and to provide the terms and conditions for the
release or substitution of the security;
(f) to change or eliminate any of the provisions of this Indenture, or to add any new
provision to this Indenture, in respect of one or more series of Securities;
provided
,
however
,
that any such change, elimination or addition (A) shall neither (i) apply to any Security
outstanding on the date of such indenture supplemental hereto nor (ii) modify the rights of the
Holder of any such Security with respect to such provision in effect prior to the date of such
indenture supplemental hereto or (B) shall become effective only when no Security of such series
remains outstanding;
(g) to make any change that would provide any additional rights or benefits to the Holders
of Securities or that does not adversely affect the Holders rights hereunder in any material
respect;
(h) to comply with requirements of the SEC in order to effect or maintain the qualification
of this Indenture under the TIA;
(i) to provide for the issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(k) to add an additional Guarantor or obligor under this Indenture; or
(l) to conform any provision of this Indenture, the Securities of any Series or any related
guarantees or security documents to the description of such Securities contained in the Companys
prospectus, prospectus supplement, offering memorandum or similar document with respect to the
offering of the Securities of such Series to the extent that such description was intended to be
a verbatim recitation of a provision in the Indenture, such Securities or any related guarantees
or security documents.
Upon the request of the Company and upon receipt by the Trustee of the documents described in
Section 7.2 hereof, the Trustee will join with the Company and the Guarantors in the execution of
any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
30
Section 9.2
With Consent of Holders
.
Subject to Section 9.3, the Company, the Guarantors and the Trustee may enter into a
supplemental indenture with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange offer for the Securities
of such Series), for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of each such Series. Except as provided in
Section 6.4, the Holders of at least a majority in principal amount of the outstanding Securities
of each Series by notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance by the Company and
the Guarantors with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2
to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. Upon the request of the Company and upon
the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders
of Securities as aforesaid, and upon receipt by the Trustee of the documents described in Section
7.2 hereof, the Trustee will join with the Company and the Guarantors in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture directly affects
the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.
After a supplemental indenture or waiver under this section becomes effective, the Company
shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected
thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture or waiver.
Section 9.3
Limitations
.
Without the consent of each Holder affected, an amendment, supplement or waiver may not (with
respect to any Securities held by a non-consenting Holder):
(a) change the amount of Securities whose Holders must consent to an amendment, supplement or
waiver;
(b) reduce the rate of or extend the time for payment of interest (including default interest)
on any Security;
(c) reduce the principal or change the Stated Maturity of any Security or reduce the amount
of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon acceleration of the
maturity thereof;
(e) waive a Default or Event of Default in the payment of the principal of or interest, if
any, on any Security (except a rescission of acceleration of the Securities of any Series by the
Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make the principal of or interest, if any, on any Security payable in any currency other
than that stated in the Security;
(g) make any change in Sections 6.4, 6.7 or 9.3 (this sentence); or
(h) waive a redemption payment with respect to any Security (other than with respect to any
provision relating to covenants that require the Company to repurchase, at the option of Holders, a
series of Securities in connection with a change of control or other triggering event).
Section 9.4
Compliance with Trust Indenture Act
.
Every amendment or supplement to this Indenture or the Securities of one or more Series shall
be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
31
Section 9.5
Revocation and Effect of Consents
.
(a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of
a Security is a continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holders Security, even if
notation of the consent is not made on any Security. However, any such Holder or subsequent Holder
subject to Section 9.5(d) may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date the amendment, supplement or waiver
becomes effective.
(b) An amendment, supplement or waiver effective in accordance with its terms will thereafter
bind every Holder.
(c) For purposes of this Indenture, the consent of the Holder of a Global Security shall be
deemed to include any consent delivered by any member of, or participant in, any Depository or DTC,
any nominees thereof and their respective successors and assigns, or such other depository
institution hereinafter appointed by the Company (Depository Entity) by electronic means in
accordance with the Automated Tender Offer Procedures system or other customary procedures of, and
pursuant to authorization by, such Depository Entity.
(d) The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or effective for more
than 120 days after such record date. The Company shall inform the Trustee of the fixed record
date, if applicable.
(e) Any amendment or waiver once effective shall bind every Holder of each Series affected by
such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of
Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holders Security.
Section 9.6
Notation on or Exchange of Securities
.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Security of any Series thereafter authenticated. The Company in exchange for Securities of that
Series may issue and the Trustee shall authenticate upon request new Securities of that Series that
reflect the amendment or waiver.
Section 9.7
Trustee Protected
.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be provided with, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE X.
GUARANTEES
Section 10.1
Agreement to Guarantee.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, each of the Guarantors hereby agrees as follows:
(a) Such Guarantor, jointly and severally with all other Guarantors, unconditionally
guarantees to the Holders of each Series of Securities authenticated and delivered by the Trustee
and to the Trustee its successors and assigns, regardless of the validity and enforceability of
this Indenture, the Securities of such Series or the Obligations of the Company under this
Indenture or the Securities of such Series, that:
32
(i) the principal of, premium and interest on the Securities of such Series 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 Securities of such Series, to
the extent lawful, and all other Obligations of the Company to the Holders or the Trustee
thereunder or under this 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 of such
Series 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 the Guarantors under this Indenture shall be reduced to the maximum amount
permissible under such fraudulent conveyance or similar law.
Section 10.2
Execution and Delivery of Subsidiary Guarantees.
(a) The Guarantee of a Guarantor shall be evidenced by the execution and delivery of this
Indenture by an Officer of such Guarantor, a Board Resolution, a supplemental indenture or an
Officers Certificate.
(b) If an Officer whose signature is on this Indenture no longer holds that office at the time
the Trustee authenticates any Security pursuant to this Indenture, the Guarantee shall be valid
nevertheless.
(c) The delivery of any Security by the Trustee, after the authentication thereof under this
Indenture, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of
each Guarantor.
(d) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional,
regardless of the validity, regularity or enforceability of the Securities or this 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 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.
(e) 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 Indenture will not be discharged except by complete performance
of the obligations contained in the Securities of each Series and this Indenture.
(f) 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 Indenture, to the extent theretofore discharged, shall
be reinstated in full force and effect.
(g) 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 6 of this Indenture for the purposes of the Guarantee made pursuant to this 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 this 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
Indenture.
(h) 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 Indenture.
33
Section 10.3
Guarantors May Consolidate, Etc. on Certain Terms.
(a) Except as set forth in Article 5 of this Indenture, nothing contained in this Indenture or
in the Securities of any Series shall prevent any consolidation or merger of any Guarantor with or
into the Company or any other Guarantor or shall prevent 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 Guarantor.
(b) Except as set forth in Article 5 of this Indenture, nothing contained in this Indenture or
in the Securities of any Series shall prevent any consolidation or merger of any Guarantor with or
into any entity other than the Company or any other Guarantor (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 any entity other than
the Company or any other Guarantor (in each case, whether or not affiliated with the Guarantor)
authorized to acquire and operate the same; provided, however, that no Guarantor may consolidate
with or merge with or into (whether or not such Guarantor is the surviving Person) another Person
(except the Company or another Guarantor) unless: (i) subject to the provisions of Section 10.4(c),
the Person formed by or surviving any such consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor under the Securities of each Series and this
Indenture pursuant to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee; and (ii) immediately after giving effect to such transaction, no Default or Event of
Default exists.
(c) In case of any consolidation, merger, sale or conveyance in which the successor entity
assumes all the obligations of a Guarantor under the Securities of each Series and this Indenture
pursuant to the proviso to Section 10.3(b), such successor entity shall succeed to and be
substituted for such Guarantor with the same effect as if it had been named herein, or in the Board
Resolution, the supplemental indenture or an Officers Certificate, as applicable, as one of the
Guarantors. Such successor entity thereupon may cause to be signed any or all of the Guarantees to
be endorsed upon the Securities of each Series issuable under this 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 this Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as
though all of such Guarantees had been issued at the date of the execution hereof.
Section 10.4
Releases.
(a) Upon defeasance or the release of all guarantees by a Guarantor under all the outstanding
Indebtedness of the Company (other than the Securities) that is guaranteed by that Guarantor, the
Guarantee of that Guarantor will automatically and unconditionally be released and discharged,
without any further action required by such Guarantor or the Trustee.
(b) The Guarantee of any Guarantor shall automatically and unconditionally be released and
discharged, without any further action required by such Guarantor or the Trustee, if at any time
such Guarantor is no longer a Domestic Subsidiary.
(c) In the event of a sale or other disposition of all of the assets of any Guarantor, by way
of merger, consolidation or otherwise, or a sale or other disposition of stock of any Guarantor
such that the Guarantor is no longer a Subsidiary of the Company, then such Guarantor (in the event
of a sale or other disposition, by way of such a merger, consolidation or otherwise) or the entity
acquiring the property (in the event of a sale or other disposition of all of the assets of such
Guarantor) shall be automatically and unconditionally released and relieved of any obligations
under its Guarantee, without any actions required on the part of the Guarantor or Trustee.
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.1
Satisfaction and Discharge
.
This Indenture will be discharged and will cease to be of further effect as to a Series of
Securities issued hereunder, when:
(a) either:
(i) all such Securities that have been authenticated, except lost, stolen or destroyed
Securities that have been replaced or paid and Securities for whose payment money has theretofore
been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee
for cancellation; or
34
(ii) all such Securities that have not been delivered to the Trustee for cancellation have
become due and payable by reason of the mailing of a notice of redemption or otherwise or will
become due and payable within one year and the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of such
Securities, cash in U.S. dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, without consideration of any reinvestment of interest, to
pay and discharge the entire indebtedness on such Securities not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the date of maturity or
redemption;
(b) no Default or Event of Default has occurred and is continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds to be applied to
such deposit) and the deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Guarantor of such Securities is a party or
by which the Company or any such Guarantor is bound;
(c) the Company or any Guarantor of such Securities has paid or caused to be paid all sums
payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the Trustee for such Securities
under this Indenture to apply the deposited money toward the payment of such Securities at maturity
or on the redemption date, as the case may be.
In addition, the Company must deliver an Officers Certificate and an Opinion of Counsel to the
Trustee for such Securities stating that all conditions precedent to satisfaction and discharge
have been satisfied, and all fees and expenses of the Trustee shall have been paid.
Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (ii) of clause (a) of this Section 11.1, the provisions of
Sections 11.2 and 8.6 hereof will survive. In addition, nothing in this Section 11.1 will be deemed
to discharge those provisions of Section 7.7 hereof, that, by their terms, survive the satisfaction
and discharge of this Indenture.
Section 11.2
Application of Trust Money
.
Subject to the provisions of Section 8.6 hereof, all money or Government Securities deposited
with the Trustee pursuant to Section 11.1 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Securities with respect to with such deposit was made and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except to the extent
required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.1 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Companys and any applicable Guarantors obligations under this Indenture and
the applicable Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.1 hereof; provided that if the Company has made any payment of principal of,
premium, if any, or interest on, any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE XII.
MISCELLANEOUS
Section 12.1
Trust Indenture Act Controls
.
If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.
35
Section 12.2
Notices
.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the
Company or the Trustee, is duly given if in writing and delivered in person or mailed by
first-class mail, or by facsimile:
if to the Company or the Guarantors:
L-3 Communications Corporation
600 Third Avenue, 34th Floor,
New York, New York 10016
Attention: Vice President-Chief Financial Officer (Fax: 212-805-5264)
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: Avrohom J. Kess (Fax: 212-455-2502)
If to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
525 William Penn Place, 38
th
Floor
Pittsburgh, PA 15259
Attention: Corporate Trust Administration (Fax: 412-234-7535)
The Company, the Guarantors or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail to his address
shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper, unless otherwise provided with respect to the applicable
Series. Failure to mail a notice or communication to a Holder of any Series or any defect in it
shall not affect its sufficiency with respect to other Holders of that or any other Series.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
If a notice or communication is mailed or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Holder receives it.
If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
36
Where the Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depository for such Global Security (or its
designee), pursuant to the applicable procedures of the Depository, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the giving of such
notice.
Section 12.3
Communication by Holders with Other Holders
.
Holders of any Series may communicate pursuant to TIA § 312(b) with other Holders of that
Series or any other Series with respect to their rights under this Indenture or the Securities of
that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA § 312(c).
Section 12.4
Certificate and Opinion as to Conditions Precedent
.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall, upon request, furnish to the Trustee:
(a) an Officers Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Section 12.5
Statements Required in Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Section 4.4 hereof and TIA §
314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such covenant or
condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Section 12.6
Rules by Trustee and Agents
.
The Trustee may make reasonable rules for action by or a meeting of Holders of one or more
Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.7
Legal Holidays
.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
hereto for a particular Series, a Legal Holiday is any day that is not a Business Day. If a
payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 12.8
No Personal Liability of Directors, Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of the Company or any Subsidiary
of the Company, as such, shall have any liability for any obligations of the Company or any
Subsidiary of the Company under the Securities of any Series or the Guarantees and this Indenture
or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities of any Series, by accepting a Security of such Series, waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Securities
of each Series.
37
Section 12.9
Counterparts
.
This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Section 12.10
Governing Law; Waiver of Trial by Jury
.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.
THE COMPANY AND EACH OF THE GUARANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT , FOR
THEMSELVES AND THEIR PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT OF COMPETENT JURISDICTION FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT ARISING OUT OF OR RELATING TO THIS INDENTURE, AND EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND FINALLY DETERMINED IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
Section 12.11
No Adverse Interpretation of Other Agreements
.
No past, present or future director, officer, stockholder or employee, as such, of the Company
or any Guarantor or any successor corporation shall have any liability for any obligation of the
Company or any Guarantor under the Securities, the Indenture or the Guarantee 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. The waiver and release are part of the
consideration for the execution of this Indenture and the issue of the Securities.
Section 12.12
Successors
.
All agreements of the Company in this Indenture and the Securities shall bind its successor.
All agreements of the Trustee in this Indenture shall bind its successor.
Section 12.13
Severability
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.14
Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy will be an
original, but all of them together represent the same agreement.
Section 12.15
Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.16
Securities in a Foreign Currency
38
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than
Dollars, then the principal amount of Securities of such Series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
12.16, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from one or more major banks
in The City of New York or in the country of issue of the currency in question or such other
quotations as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Company and all Holders.
Section 12.17
Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
ARTICLE XIII.
SINKING FUNDS
Section 13.1
Applicability of Article
.
The provisions of this Article XIII shall be applicable to any sinking fund for the retirement
of the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a mandatory sinking fund payment and any other amount
provided for by the terms of Securities of such Series is herein referred to as an optional
sinking fund payment. If provided for by the terms of Securities of any Series, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section 13.2. Each sinking fund
payment shall be applied to the redemption of Securities of any Series as provided for by the terms
of the Securities of such Series.
Section 13.2
Satisfaction of Sinking Fund Payments with Securities
.
The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as a
credit Securities of such Series to which such sinking fund payment is applicable and which have
been repurchased by the Company or redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers Certificate with
respect thereto, not later than 15 days prior to the date on which the Trustee begins the process
of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at
the price specified in such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this Section 13.2, the principal amount
of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by
the Company having an unpaid principal amount equal to the cash payment required to be released to
the Company.
Section 13.3
Redemption of Securities for Sinking Fund
.
39
Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture or Officers Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an
Officers Certificate specifying the amount of the next ensuing mandatory sinking fund payment for
that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 13.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officers Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
[Signatures on following pages]
40
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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L-3 COMMUNICATIONS CORPORATION
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, General
Counsel and Corporate Secretary
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Guarantors
:
BROADCAST SPORTS INC.
D.P. ASSOCIATES, INC.
ELECTRODYNAMICS, INC.
INTERNATIONAL RESOURCES GROUP LTD.
INTERSTATE ELECTRONICS CORPORATION
LINCOM WIRELESS, INC.
L-3 CHESAPEAKE SCIENCES CORPORATION
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS APPLIED SIGNAL AND IMAGE TECHNOLOGY, INC.
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS, INC.
L-3 COMMUNICATIONS CYTERRA CORPORATION
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC.
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC.
L-3 COMMUNICATIONS EO/IR, INC.
L-3 COMMUNICATIONS EOTECH, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC
L-3 COMMUNICATIONS INFRAREDVISION TECHNOLOGY CORPORATION
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS KLEIN ASSOCIATES, INC.
L-3 COMMUNICATIONS MARIPRO, INC.
L-3 COMMUNICATIONS MOBILE-VISION, INC.
L-3 COMMUNICATIONS NOVA ENGINEERING, INC.
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC.
L-3 COMMUNICATIONS SHARED SERVICES, LLC
L-3 COMMUNICATIONS SONOMA EO, INC.
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS WESTWOOD CORPORATION
L-3 FUZING AND ORDNANCE SYSTEMS, INC.
L-3 G.A. INTERNATIONAL, INC.
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.
L-3 SERVICES, INC.
L-3 UNMANNED SYSTEMS, INC.
MICRODYNE COMMUNICATIONS TECHNOLOGIES INCORPORATED
MICRODYNE CORPORATION
MICRODYNE OUTSOURCING INCORPORATED
PAC ORD INC.
POWER PARAGON, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR INC.
TITAN FACILITIES, INC.
As Guarantors
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, Secretary
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L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a Delaware limited partnership
As a Guarantor
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By: L-3 COMMUNICATIONS AIS GP CORPORATION, as General Partner
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, Secretary
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Raymond K. ONeil
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Name:
Raymond K. ONeil
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Title:
Senior Associate
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Exhibit 4.2
EXECUTION VERSION
L-3 COMMUNICATIONS CORPORATION
as Issuer
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
First Supplemental Indenture
Dated as of May 21, 2010
$800,000,000 4.750% Senior Notes due July 15, 2020
FIRST SUPPLEMENTAL INDENTURE dated as of May 21, 2010 among L-3 Communications Corporation, a
Delaware corporation (the
Company
), the guarantors listed on the signature pages hereto (the
Guarantors
) and The Bank of New York Mellon Trust Company, N.A., as trustee (the
Trustee
).
WITNESSETH:
WHEREAS, the Company and the Guarantors have heretofore entered into an Indenture, dated as of
May 21, 2010 (the
Original Indenture
), with the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference and the Original
Indenture, as supplemented by this First Supplemental Indenture, is herein called the
Indenture
;
WHEREAS, under the Original Indenture, a new series of Securities may at any time be
established pursuant to a supplemental indenture executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series of Securities;
WHEREAS, the Company desires to issue $800,000,000 in aggregate principal amount of Notes (as
defined below), which will be a new series of Securities under the Indenture; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this First
Supplemental Indenture and to make it a legal, valid and binding obligation of the Company have
been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties
hereto hereby agree to the following provisions:
Capitalized terms used but not defined herein have the meanings ascribed thereto in the
Original Indenture.
- 1 -
ARTICLE I
4.750
% Senior Notes due 2020
SECTION 1.01
Establishment and Terms
.
There is hereby established a new series of Securities to be issued under the Indenture, to be
designated as the Companys
4.750
% Senior Notes due 2020 (the
Notes
).
The aggregate principal amount of Notes that may be authenticated and delivered under the
Indenture is unlimited. The Notes that are to be authenticated and delivered on the date hereof
(the
Initial Notes
) will be in an aggregate principal amount of $800,000,000.
With respect to any additional Notes (the
Additional Notes
) the Company elects to issue
under the Indenture, the Company shall set forth in an Officers Certificate the following
information:
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(i)
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the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture; and
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(ii)
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the issue price and the issue date of such Additional Notes,
including the date from which interest shall accrue.
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For purposes of the Indenture, notes will not be deemed to be Additional Notes of a series
unless the maturity date, interest payment dates, record dates and interest rate are identical to
the Initial Notes for that series.
The Initial Notes and any Additional Notes shall be considered collectively as a single class
for all purposes of the Indenture. Holders of the Initial Notes and any Additional Notes will vote
and consent together on all matters to which such Holders are entitled to vote or consent as one
class, and none of the Holders of the Initial Notes or any Additional Notes shall have the right to
vote or consent as a separate class on any matter to which such Holders are entitled to vote or
consent.
The Notes shall each be issued in the form of one or more Global Securities in substantially
the form set out in
Exhibit A
. The initial Depositary with respect to the Notes shall be
The Depository Trust Company (
DTC
).
SECTION 1.02
Maturity, Payment of Principal and Interest
.
The Notes will mature on July 15, 2020.
The Notes will bear interest at the rate of 4.750% per annum. The interest payment dates with
respect to the Notes will be January 15 and July 15 of each year. The first interest payment date
with respect to the Initial Notes will be January 15, 2011. Interest payable on January 15 and
July 15, shall be paid to the Person in whose name the applicable Note is registered on the
immediately preceding January 1 and July 1, respectively. Interest on the
- 2 -
Initial Notes will accrue from May 21, 2010. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
All payments of principal, premium (if any) and interest on the Notes shall be made in
accordance with Section 4.1 of the Original Indenture and in the manner set forth in Section 2.13
of the Original Indenture and Exhibit A hereto.
SECTION 1.03
No Sinking Fund or Payments of Additional Amounts
.The Notes will not be
subject to a sinking fund and no payments of Additional Amounts shall be made on the Notes.
SECTION 1.04
Optional Redemption
.
The Company may, at its option, redeem the Notes in whole at any time or in part from time to
time, on at least 30 but not more than 60 days prior notice, at a redemption price equal to the
greater of:
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(i)
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100% of the principal amount of the Notes being redeemed, and
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(ii)
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the present value of the Remaining Scheduled Payments on the
Notes being redeemed on the redemption date, discounted to the date of
redemption, on a semiannual basis, at the Treasury Rate plus 25 basis points.
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If the Company elects to redeem the Notes pursuant to this Section 1.04, it shall also pay
accrued and unpaid interest, if any, to the date of redemption, subject to the rights of Holders on
the relevant record date to receive interest due on the relevant interest payment date.
In determining the redemption price and accrued interest pursuant to this Section 1.04,
interest will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
For the purposes of this Section 1.04, the following definitions are applicable:
Comparable Treasury Issue
means, with respect to the Notes, the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
Comparable Treasury Price
means, with respect to any redemption date, (1) the average of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal Reserve Bank of New
York and designated Composite 3:30 p.m. Quotations for U.S. Government Securities or (2) if such
release (or any successor release) is not published or does not contain such price on such Business
Day, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference
- 3 -
Treasury Dealer Quotations, or (B) if the Trustee is given fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
Reference Treasury Dealer
means (A) Banc of America Securities LLC, Barclays Capital Inc.,
Deutsche Bank Securities Inc., (or their respective affiliates which are Primary Treasury Dealers)
and each of their successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a
Primary Treasury Dealer
), the
Company shall substitute therefor another Primary Treasury Dealer; and (B) any other Primary
Treasury Dealer(s) selected by us.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third
Business Day preceding such redemption date.
Remaining Scheduled Payments
means, with respect to any Notes, the remaining scheduled
payments of the principal thereof to be redeemed and interest thereon that would be due after the
related redemption date but for such redemption; provided, however, that, if such redemption date
is not an interest payment date with respect to such Note, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to
such redemption date.
Treasury Rate
means, with respect to any redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
SECTION 1.05
Offer To Repurchase Upon Change Of Control Triggering Event
.
(a) Upon the occurrence of a Change of Control Triggering Event, unless the Company has
exercised its right to redeem the Notes pursuant to Section 1.04 of this First Supplemental
Indenture, each Holder shall have the right to require the Company to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holders Notes
pursuant to the offer described below (the
Change of Control Offer
) at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase (the
Change of Control Payment
), subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment date. Within 30 days
following the date upon which any Change of Control Triggering Event occurs, or at the Companys
option, prior to any Change of Control Triggering Event but subject to the occurrence of a Change
of Control Triggering Event, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering to repurchase Notes
on the date specified in such notice, which date shall be no earlier than 30 days and no later than
60 days from the date such notice is mailed (the
Change of Control Payment Date
), pursuant to the
procedures required by the Indenture and described in such notice. The notice, if mailed prior to
the occurrence of the Change of Control Triggering
- 4 -
Event, shall state that the Change of Control Offer is conditioned on the occurrence of a
Change of Control Triggering Event on or prior to the Change of Control Payment Date. The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Notes as a result of a Change of Control Triggering Event.
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions thereof properly tendered pursuant to the
Change of Control Offer and not withdrawn;
(ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and not withdrawn; and
(iii) deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company.
The Paying Agent shall promptly transmit to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and transmit (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any;
provided
that each such new Note shall be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make a Change of Control Offer upon a Change of Control
Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in Article III of the Original Indenture
and this Section 1.05 applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
(c) For the purposes of this Section 1.05, the following definitions are applicable:
Change of Control
means the occurrence of any one of the following:
(1) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole to any person (as that term is used in
Section 13(d)(3) of the Exchange Act) other than to the Company or one of its Subsidiaries;
(2) the consummation of any transaction (including without limitation, any merger or
consolidation) the result of which is that any person (as defined above) becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
more than 50% of the outstanding Voting Stock of the Company, measured by voting power rather than
number of shares, other than by a person whose outstanding Voting
- 5 -
Stock, measured by voting power rather than number of shares, is owned 100%, directly or
indirectly, by Holdings;
(3) the first day on which the majority of the members of the board of directors of the
Company cease to be Continuing Directors; or
(4) the adoption of a plan relating to the liquidation or dissolution of the Company.
Change of Control Triggering Event
means the Notes cease to be rated Investment Grade by at
least two of the three Rating Agencies on any date during the 60-day period (the
Trigger Period
)
commencing on the earlier of (1) the occurrence of a Change of Control and (2) public notice of the
pending occurrence of a Change of Control or our intention to effect a Change of Control (which
Trigger Period will be extended for so long as any of the Rating Agencies has publicly announced
that it is considering a possible ratings change).
Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have
occurred in connection with any particular Change of Control (1) if the Rating Agencies making the
reduction in rating that causes the Notes to cease to be rated Investment Grade do not announce or
publicly confirm or inform the Trustee in writing at its request that the reduction was the result,
in whole or in part, of any event or circumstance comprised of or arising as a result of, or in
respect of, the applicable Change of Control (whether or not the applicable Change of Control has
occurred at the time of the ratings reduction) and (2) unless and until such Change of Control has
actually been consummated.
Continuing Directors
means, as of any date of determination, any member of the board of
directors of the Company who (1) was a member of such board of directors on the date hereof; or (2)
was nominated for election or elected to such board of directors with the approval of a majority of
the Continuing Directors who were members of such board of directors at the time of such nomination
or election.
Fitch
means Fitch Inc., a subsidiary of Fimalac, S.A., and its successors.
Investment Grade
means a rating of BBB- or better by Fitch (or its equivalent under any
successor rating categories of Fitch); a rating of Baa3 or better by Moodys (or its equivalent
under any successor rating categories of Moodys); and a rating of BBB- or better by S&P (or its
equivalent under any successor rating categories of S&P).
Moodys
means Moodys Investors Service Inc., a subsidiary of Moodys Corporation, and its
successors.
S&P
means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
Rating Agency
means each of Moodys, S&P and Fitch; provided, that if any of Moodys, S&P
and Fitch ceases to provide rating services to issuers or investors, the Company may appoint a
replacement for such Rating Agency that is reasonably acceptable to the Trustee.
Voting Stock
of any specified Person as of any date means the capital stock of such Person
that is at the time entitled to vote generally in the election of the board of directors of such
Person.
- 6 -
SECTION 1.06
Denominations
. The Notes shall be issued only in fully registered
book-entry form, without coupons, in denominations of $2,000 and integral multiples of $1,000 in
excess thereof.
ARTICLE II
MISCELLANEOUS
SECTION 2.01
Trustee Matters
. The recitals in this First Supplemental
Indenture are made by the Company only and not by the Trustee, and all of the provisions contained
in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of
the Trustee shall be applicable in respect of the Notes and of this First Supplemental Indenture as
fully and with like effect as if set forth herein in full.
SECTION 2.03
Ratification
. The Original Indenture is in all respects
ratified and confirmed, and the Original Indenture and this First Supplemental Indenture shall be
read, taken and construed as one and the same instrument; provided that, in case of conflict
between this First Supplemental Indenture and the Original Indenture, this First Supplemental
Indenture shall control.
SECTION 2.05
Counterpart Originals
. This First Supplemental Indenture
may be simultaneously executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts shall together constitute one and the same instrument.
SECTION 2.07
Performance by DTC, Euroclear or Cede & Co
. Neither the
Company nor the Trustee shall have any responsibility for the performance of DTC, Euroclear or Cede
& Co., or any of their participants, direct or indirect, of their respective obligations under the
rules and procedures governing their operations.
SECTION 2.09
Trust Indenture Act Controls
. If any provision of this First
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by operation of
Section 318(c) of the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), the
imposed duties shall control.
SECTION 2.10
Effect of Headings
. The Article and Section headings herein
have been inserted for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 2.12
Governing Law
. This First Supplemental Indenture and the
Notes shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 2.14
Provisions for the Sole Benefit of Parties and Holders
.
Nothing in the Original Indenture, as supplemented, amended and modified by this First Supplemental
Indenture, or in the Notes, expressed or implied, is intended or shall be construed to confer upon,
or to give or grant to, any person or entity, other than the Company, the Trustee, the Paying Agent
and the registered owners of the Notes, any legal or equitable right, remedy or claim under or by
reason of the Indenture or any covenant, condition or stipulation hereof, and all covenants,
stipulations, promises and agreements in the Indenture contained by and on behalf
of the Company shall be for the sole and exclusive benefit of the Company, the Trustee, the
Paying Agent and the registered owners of the Notes.
- 7 -
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the day and year first above written.
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L-3 COMMUNICATIONS CORPORATION, as Issuer
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, General
Counsel and Corporate Secretary
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Guarantors
:
BROADCAST SPORTS INC.
D.P. ASSOCIATES, INC.
ELECTRODYNAMICS, INC.
INTERNATIONAL RESOURCES GROUP LTD.
INTERSTATE ELECTRONICS CORPORATION
LINCOM WIRELESS, INC.
L-3 CHESAPEAKE SCIENCES CORPORATION
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS APPLIED SIGNAL AND IMAGE TECHNOLOGY, INC.
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS, INC.
L-3 COMMUNICATIONS CYTERRA CORPORATION
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC.
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC.
L-3 COMMUNICATIONS EO/IR, INC.
L-3 COMMUNICATIONS EOTECH, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC
L-3 COMMUNICATIONS INFRAREDVISION TECHNOLOGY CORPORATION
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS KLEIN ASSOCIATES, INC.
L-3 COMMUNICATIONS MARIPRO, INC.
L-3 COMMUNICATIONS MOBILE-VISION, INC.
L-3 COMMUNICATIONS NOVA ENGINEERING, INC.
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC.
L-3 COMMUNICATIONS SHARED SERVICES, LLC
L-3 COMMUNICATIONS SONOMA EO, INC.
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS WESTWOOD CORPORATION
L-3 FUZING AND ORDNANCE SYSTEMS, INC.
L-3 G.A. INTERNATIONAL, INC.
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.
L-3 SERVICES, INC.
L-3 UNMANNED SYSTEMS, INC.
MICRODYNE COMMUNICATIONS TECHNOLOGIES INCORPORATED
MICRODYNE CORPORATION
MICRODYNE OUTSOURCING INCORPORATED
PAC ORD INC.
POWER PARAGON, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR INC.
TITAN FACILITIES, INC.
As Guarantors
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By:
Name:
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/s/ Steven M. Post
Steven M. Post
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Title:
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Senior Vice President, Secretary
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L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a Delaware limited partnership
As a Guarantor
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By: L-3 COMMUNICATIONS AIS GP CORPORATION, as General Partner
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By:
Name:
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/s/ Steven M. Post
Steven M. Post
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Title:
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Senior Vice President, Secretary
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Raymond K. ONeil
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Name: Raymond K. ONeil
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Title: Senior Associate
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EXHIBIT A
FORM OF 2020 NOTE
[FACE OF SECURITY]
[Global Note]
[Certificated Note]
[IF THIS SECURITY IS TO BE A GLOBAL NOTE, IT SHALL BEAR THE FOLLOWING LEGEND:]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
[FOR AS LONG AS THIS GLOBAL SECURITY IS DEPOSITED WITH OR ON BEHALF OF THE DEPOSITORY TRUST
COMPANY IT SHALL BEAR THE FOLLOWING LEGEND:]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (
DTC
), NEW YORK, NEW YORK, TO L-3 COMMUNICATIONS
CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR
A-1
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-2
L-3 COMMUNICATIONS CORPORATION
% SENIOR NOTES DUE 2020
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No. ___
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CUSIP No.
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ISIN No.
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$
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L-3 Communications Corporation, a Delaware corporation (the Issuer), for value received
promises to pay to Cede & Co., or registered assigns, the principal sum of
Dollars[, or such greater or lesser amount as indicated on the Schedule I hereto,]
1
on [ ], 2020.
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Interest Payment Dates:
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and
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Record Dates:
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and
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Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Issuer has caused this Security to be signed manually or by facsimile
by its duly authorized officers.
Dated:
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L-3 COMMUNICATIONS CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Attest:
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1
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To be included in any Global Note.
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A-3
Certificate of Authentication:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
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By:
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Dated:
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Authorized Signatory
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A-4
[REVERSE OF SECURITY]
L-3 COMMUNICATIONS CORPORATION
% SENIOR NOTES DUE 2020
This Security is one of a duly authorized issue of 4.750% Senior Notes Due 2020 (the
Securities
) of L-3 Communications Corporation, a Delaware corporation (the
Issuer
). The Issuer
issued the Securities under an Indenture dated as of May 21, 2010 (the
Original Indenture
) among
the Issuer, the guarantors listed on the signature pages thereto and The Bank of New York Mellon
Trust Company, N.A., as trustee (the
Trustee
), as supplemented by the First Supplemental
Indenture dated as of May , 2010 (the First Supplemental Indenture and, together with the
Original Indenture, the
Indenture
). Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
1. Interest
. The Issuer promises to pay interest on the principal amount of this Security at
% per annum from
, 2011 until maturity. The Issuer will pay interest semiannually
on [ ] and [ ] of each year, or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Securities will accrue from the most recent interest payment date on
which interest has been paid or, if no interest has been paid, from
, 2010;
provided
that if there is no existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next succeeding interest
payment date, interest shall accrue from such next succeeding interest payment date;
provided
,
further
, that the first interest payment date shall be [ ], 2011. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
. The Issuer will pay interest on the Securities (except defaulted
interest) to the Persons who are registered Holders of Securities at the close of business on the
record date next preceding the interest payment date, even if such Securities are canceled after
such record date and on or before such interest payment date. The Holder must surrender this
Security to a Paying Agent to collect principal payments. The Issuer will pay the principal of and
interest on the Securities in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Such amounts shall be payable at the offices
of the Trustee or any Paying Agent, provided that at the option of the Issuer, the Issuer may pay
such amounts (1) by wire transfer with respect to Securities represented by a Global Note or (2) by
check payable in such money mailed to a Holders registered address with respect to any Security.
3. Paying Agent and Registrar
. Initially, the Trustee will act as Paying Agent and Registrar.
The Issuer may change any Paying Agent, Registrar, co-registrar or additional paying agent without
notice to any Holder. The Issuer or any of the Issuers subsidiaries may act in any such capacity.
4. Indenture
. The terms of the Securities include those stated in the Indenture and the
provisions made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(15 U.S. Code §§ 77aaa-77bbbb) (the
TIA
), as in effect on the date of the First Supplemental
Indenture;
provided
, that if any provision of the Indenture limits, qualifies or
A-5
conflicts with the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control. Holders are referred to the Indenture and the TIA for a statement of such terms and
provisions. The Securities are unsecured senior obligations of the Issuer and rank equally with
all of the Issuers existing and future unsecured indebtedness. The Indenture provides for the
issuance of other series of debt securities thereunder.
5. Optional Redemption
.
(a) The Issuer may, at its option, redeem the Securities in whole at any time or in part from
time to time, on at least 30 but not more than 60 days prior notice, at a redemption price equal
to the greater of:
(i) 100% of the principal amount of the Securities being redeemed, and
(ii) the present value of the Remaining Scheduled Payments on the Securities being
redeemed on the redemption date, discounted to the date of redemption, on a semiannual
basis, at the Treasury Rate plus [ ] basis points.
(b) If the Issuer elects to redeem the Securities, it will also pay accrued and unpaid
interest, if any, to the date of redemption, subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date. In determining the
redemption price and accrued interest, interest will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
6. Mandatory Redemption
.
Except as set forth in paragraph 7 below, the Issuer shall not be required to make mandatory
redemption payments with respect to the Securities.
7. Repurchase At Option Of Holder
.
Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has exercised
its right to redeem the Securities as described above, each Holder will have the right to require
the Issuer to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) of such Holders Securities pursuant to the offer described below (the
Change of
Control Offer
) at an offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest to the date of purchase (the
Change of Control Payment
),
subject to the rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date;
provided
, that the Issuer will not be required to make a Change of
Control Offer upon a Change of Control Triggering Event if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the requirements set
forth in the Indenture applicable to a Change of Control Offer made by the Issuer and purchases all
Securities validly tendered and not withdrawn under such Change of Control Offer. Within 30 days
following the date upon which any Change of Control Triggering Event occurs, or at the Issuers
option, prior to any Change of Control Triggering Event but subject to the occurrence of a Change
of Control Triggering Event, the Issuer will mail a notice to each Holder describing the events
constituting a Change of Control Triggering Event
A-6
(including the transaction or transactions that constitute the Change of Control) and offering
to repurchase Securities on the date specified in such notice, which date will be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
Change of Control
Payment Date
), pursuant to the procedures required by the Indenture and described in such notice.
The notice, if mailed prior to the occurrence of the Change of Control Triggering Event, will state
that the Change of Control Offer is conditioned on the occurrence of a Change of Control Triggering
Event on or prior to the Change of Control Payment Date. The Issuer shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection with the repurchase
of the Securities as a result of a Change of Control Triggering Event.
8. Notice of Redemption
.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Securities are to be redeemed at its registered address.
Securities in denominations larger than $2,000 may be redeemed in part but only in whole multiples
of $1,000, unless all of the Securities held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Securities or portions thereof called for redemption.
9. Denominations, Transfer, Exchange
.
The Securities are in registered form without coupons in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of Securities may be registered and Securities
may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and the Issuer may
require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The
Issuer need not exchange or register the transfer of any Security or portion of a Security selected
for redemption, except for the unredeemed portion of any Security being redeemed in part. Also, it
need not exchange or register the transfer of any Securities for a period of 15 days before a
selection of Securities to be redeemed or during the period between a record date and the
corresponding interest payment date.
10. Persons Deemed Owners
.
The registered Holder of a Security may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver
.
Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of the then outstanding
Securities, and any existing default or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in principal amount of the
then outstanding Securities (including consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Securities). Without the consent of any Holder of a
Security, the Indenture or the Securities may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Securities in addition to
A-7
or in place of certificated Securities, to provide for the assumption of the Issuers
obligations to Holders of the Securities in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the Securities or that does
not adversely affect the legal rights under the Indenture of any such Holder, to secure the
Securities or to add additional guarantors), to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the Trust Indenture Act or to conform
the text of the Indenture or the Securities to any provision in the Prospectus, dated ___
, 2010, with respect to the Securities, under the caption Description of the Senior Notes, to the
extent that such provision was intended to be a verbatim recitation of the Indenture, the
Subsidiary Guarantees or the Securities.
12. Defaults and Remedies
.
An
Event of Default
means any of the following: (i) default for 30 days in the payment when
due of interest with respect to, the Securities; (ii) default in payment when due of the principal
of or premium, if any, on the Securities; (iii) failure by the Issuer to comply with the covenants
contained in section 1.05 of the First Supplemental Indenture or section 5.1 of the Original
Indenture; (iv) failure by the Issuer to comply with any of its other agreements in the Original
Indenture or the Securities for 90 days after written notice is received by the Issuer and the
Trustee from the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding; (v) default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness of the Issuer or any of its
Subsidiaries (or the payment of which is guaranteed by the Issuer or any of its Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the date hereof, which
default relates to a payment at final maturity or results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of such Indebtedness,
together with the principal amount of all other Indebtedness that is not paid at final maturity or
results in the maturity of which has been so accelerated, aggregates $100.0 million or more; (vi)
failure by the Issuer or any of its Subsidiaries to pay final judgments aggregating in excess of
$100.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; (vii)
certain events of bankruptcy or insolvency with respect to the Issuer or any of its Significant
Subsidiaries; and (viii) except as permitted by the Indenture, any Subsidiary Guarantee of a
Significant Subsidiary shall be held in any judicial proceeding to be unenforceable or invalid.
If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Securities by notice in writing, may declare the
principal amount of and accrued and unpaid interest on all the Securities to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Issuer or any Significant
Subsidiary, the principal amount of and accrued and unpaid interest on all the Securities will
become due and payable without further action or notice. Holders of the Securities may not enforce
the Indenture or the Securities except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of
the Securities notice of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal, premium or interest) if it determines that
withholding notice is in their interest.
A-8
The Holders of a majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee may on behalf of the Holders of all of the Securities waive any existing
Default or Event of Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Securities.
13. Trustee Dealings with Issuer
.
The Trustee, in its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Issuer or its Affiliates, and may otherwise deal with the Issuer or
its Affiliates, as if it were not the Trustee.
14. No Recourse against Others
.
A director, officer, employee, incorporator or stockholder, of the Issuer or any Subsidiary of
the Issuer, as such, shall not have any liability for any obligations of the Issuer or any
Subsidiary of the Issuer under the Securities, the Indenture or the 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 Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
15. Authentication
. The Securities shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
16. CUSIP Numbers
. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the
Securities as a convenience to the Holders of the Securities. No representation is made as to the
accuracy of such numbers as printed on the Securities and reliance may be placed only on the other
identification numbers printed thereon.
17. Indenture to Control; Governing Law
. In the case of any conflict between the provisions
of this Security and the Indenture, the provisions of the Indenture shall control. The Indenture
and the Securities shall be governed by and construed under the laws of the State of New York.
18. Abbreviations and Definitions
. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture. Request may be made to:
L-3 Communications Corporation
600 Third Avenue, 34
th
Floor
New York, New York 10016
Attention: Secretary
Telephone: (212) 697-1111
A-9
SCHEDULE I
2
The initial aggregate principal amount of Securities evidenced by the Certificate to which
this Schedule is attached is $
. The notations on the following table evidence
decreases and increases in the aggregate principal amount of Securities evidenced by such
Certificate.
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Principal Amount of
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Securities Remaining
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Decrease in Principal
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Increase in Principal
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After Such Decrease
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Notation by
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Amount of Securities
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Amount of Securities
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or Increase
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Security Registrar
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2
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To be included in any Global Note.
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A-10
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security
to
(Insert assignees social security or tax I.D. number)
(Print or type assignees name, address and zip code)
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and irrevocably appoint
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as agent to transfer this Security on the books of the Issuer. The agent may substitute another to
act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on
the face of this Security)
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Signature Guarantee:
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(Participant in a Recognized Signature
Guaranty Medallion Program)
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This assignment relates to $___principal amount of % Senior Notes due 2020 of L-3
Communications Corporation held in
3
___book-entry or ___definitive form by
(the
Transferor
).
The Transferor has requested the Trustee by written order to exchange or register the transfer
of a Note or Notes.
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[INSERT NAME OF TRANSFEROR]
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By:
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Name:
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Title:
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Address:
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Date:
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3.
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Fill in blank or check appropriate box, as
applicable.
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A-11
Exhibit 99.1
EXECUTION VERSION
L-3 COMMUNICATIONS CORPORATION
$800,000,000
4.750% Senior Notes due 2020
UNDERWRITING AGREEMENT
May 18, 2010
Banc of America Securities LLC
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Underwriting Agreement
May 18, 2010
BANC OF AMERICA SECURITIES LLC
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
As Representatives of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
One Bryant Park
New York , NY 10036
Ladies and Gentlemen:
Introductory.
L-3 Communications Corporation, a Delaware corporation (the
Company
),
proposes to issue and sell to the several underwriters named in
Schedule A
(the
Underwriters
), acting severally and not jointly, the respective amounts set forth in such
Schedule A
of $800,000,000 in aggregate principal amount of the Companys 4.750% Senior
Notes due 2020 (the
Notes
). Banc of America Securities LLC (BAS), Barclays Capital
Inc. and Deutsche Bank Securities Inc. have agreed to act as representatives of the several
Underwriters (in such capacity, the
Representatives
) in connection with the offering and
sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of May 21, 2010 (the
Base
Indenture
), among the Company, the Guarantors (as defined below) and The Bank of New York
Mellon, as trustee (the
Trustee
). Certain terms of the Notes will be established
pursuant to a supplemental indenture, dated as of the Closing Date (as defined in Section 2 below)
(the
Supplemental Indenture
) to the Base Indenture (together with the Base Indenture, the
Indenture
). The Notes will be guaranteed (the
Guarantees
) on an unsecured
senior basis by each of the entities listed on
Exhibit A
hereto (the
Guarantors
).
The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The
Depository Trust Company (the
Depositary
), pursuant to a letter of representations, to be
dated on or before the Closing Date (as defined in Section 2 below) (the
DTC Agreement
),
among the Company, the Trustee and the Depositary.
The Company and the Guarantors have prepared and filed with the Securities and Exchange
Commission (the
Commission
) a registration statement on Form S-3 (File No. 333-165756),
which contains a base prospectus (the
Base Prospectus
), to be used in connection with the
public offering and sale of debt securities, including the Notes, and other securities of
the Company under the Securities Act of 1933, as amended, and the rules and regulations
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promulgated thereunder (collectively, the
Securities Act
), and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act. Such registration statement,
including the financial statements, exhibits and schedules thereto, in the form in which it became
effective under the Securities Act, including any required information deemed to be a part thereof
at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the
Registration Statement
. The term
Prospectus
shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant
to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed
(the
Execution Time
) by the parties hereto. The term
Preliminary Prospectus
shall mean the preliminary prospectus supplement relating to the Notes, together with the Base
Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein
to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents that are or are deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act prior to 2:45 p.m. on May 18, 2010 (the
Initial Sale Time
). All references in this Agreement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing,
shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System (
EDGAR
).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the
Exchange Act
), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be,
after the Initial Sale Time.
The Company and the Guarantors hereby confirm their agreements with the Underwriters as follows:
Section 1.
Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors hereby jointly and severally represent, warrant and covenant to
each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in
each case, a
Representation Date
), as follows:
a)
Compliance with Registration Requirements.
The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the Company, are
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contemplated
or threatened by the Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the
Trust Indenture Act
).
At the respective times the Registration Statement and any post-effective amendments thereto
(including the filing with the Commission of the Companys Annual Report on Form 10-K for the year
ended December 31, 2009 (the
Annual Report on Form 10-K
)) became effective and at each
Representation Date, the Registration Statement and any amendments thereto (i) complied and will
comply in all material respects with the requirements of the Securities Act and the Trust Indenture
Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any
amendments or supplements thereto included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. Notwithstanding the
foregoing, the representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement or any post-effective amendment or the Prospectus or
any amendments or supplements thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any of the Underwriters through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished
by any Underwriter through the Representatives consists of the information described as such in
Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the Securities Act, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering
of the Notes will, at the time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
b)
Disclosure Package.
The term
Disclosure Package
shall mean (i) the Preliminary
Prospectus dated May 18, 2010, (ii) the issuer free writing prospectuses as defined in Rule 433 of
the Securities Act (each, an
Issuer Free Writing Prospectus
), if any, identified in Annex
I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.
c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
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Prospectus (i) at the
time they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
d)
Company is a Well-Known Seasoned Issuer
. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes in
reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the
Company was and is a well known seasoned issuer as defined in Rule 405 of the Securities Act.
The Registration Statement is an automatic shelf registration statement, as defined in Rule 405
of the Securities Act, that automatically became effective not more than three years prior to the
Execution Time; the Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement
form and the Company has not otherwise ceased to be eligible to use the automatic shelf
registration form.
e)
Company is not an Ineligible Issuer
. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.
f)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company
has promptly notified or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter through the Representatives consists of the information described as
such in Section 8 hereof.
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g)
Distribution of Offering Material By the Company.
The Company and the Guarantors have not
distributed and will not distribute, prior to the later of the Closing Date and the completion of
the Underwriters distribution of the Notes, any offering material in connection with the offering
and sale of the Notes other than the Registration Statement, the Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and
included in Annex I hereto or any electronic road show or other written communications reviewed and
consented to by the Representatives and listed on Annex II hereto (collectively,
Company
Additional Written Communication
). Each such Company Additional Written Communication, when
taken together with the Disclosure Package, did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Company Additional
Written Communication based upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter through the
Representatives consists of the information described as such in Section 8 hereof.
h)
No Applicable Registration or Other Similar Rights.
There are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
i)
The Underwriting Agreement.
This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
j)
Authorization of the Indenture
. The Indenture has been duly authorized by the Company and
each of the Guarantors and, when duly executed by the proper officers of the Company and each of
the Guarantors (assuming the Indenture is the valid and binding obligation of the Trustee),
executed and delivered by the Company and each of the Guarantors, will constitute a valid and
binding agreement of the Company and each of the Guarantors, enforceable against the Company and
each of the Guarantors in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws relating to or affecting creditors rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing (the
Enforceability Exceptions
). The
Indenture has been duly qualified under the Trust Indenture Act.
k)
Authorization of the Notes.
The Notes to be purchased by the Underwriters from the Company
are in the form contemplated by the Indenture, have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered to the Underwriters against payment therefor in accordance
with the terms of this Agreement, will be validly issued and delivered, and will constitute valid
and binding obligations of the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to the Enforceability Exceptions.
5
l)
Authorization of the Guarantees
. The Guarantees have been duly authorized by the
Guarantors and, when executed and delivered by the Guarantors, and when the Notes have been duly
authorized and executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor on the Closing Date in
accordance with the terms of this Agreement, will constitute valid and binding obligations of the
Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions.
m)
Description of the Notes and the Indenture.
The Notes, the Indenture and the Guarantees
conform, or will conform, in all material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus.
n)
Accuracy of Statements in Prospectus.
The statements in each of the Preliminary Prospectus
and the Prospectus under the captions Description of Senior Notes, Description of Senior
Unsecured Notes and Material U.S. Federal Income and Estate Tax Consequences, in each case
insofar as such statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the matters referred
to therein.
o)
No Material Adverse Change
. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package, (i)
neither the Company nor any of its subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree and, except as would not,
individually or in the aggregate, result in a Material Adverse Change (as defined below) (ii) there
has been no material adverse change, or any development that could reasonably be expected to result
in a material adverse change, in the condition (financial or otherwise) or in the business,
properties, stockholders equity, results of operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its subsidiaries, considered as
one entity (any such change is called a
Material Adverse Change
).
p)
Independent Accountants.
PricewaterhouseCoopers LLP, which have audited the Companys
audited financial statements for the fiscal years ended December 31, 2009, 2008 and 2007
incorporated by reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, are an independent registered public accounting firm with respect to the Company as
required by the Securities Act and the Exchange Act and the Public Company Accounting Oversight
Board.
q)
Preparation of the Financial Statements.
The financial statements and the notes thereto
included or incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to be shown thereby at the dates and
for the periods indicated and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated and comply as to form in
all material respects with the rules and regulations of the Commission, except as otherwise noted.
6
r)
Incorporation and Good Standing of the Company and its Subsidiaries.
The Company and each
of the Guarantors has been duly organized and is validly existing and in good standing as a
corporation or other business entity under the laws of its jurisdiction of incorporation or
organization, with all power and authority necessary to conduct the business in which it is engaged
or to own or lease its properties; and each of the Company and the Guarantors is duly qualified to
do business and in good standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Change. All of
the issued shares of capital stock of the Company have been duly authorized and validly authorized
and issued, are fully paid and nonassessable.
s)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
None of the execution or delivery of this Agreement by the Company and the Guarantors, the
consummation of the transactions contemplated hereby, the execution and delivery of the Indenture,
the Notes and the Guarantees by the Company and the Guarantors, as applicable, or compliance by the
Company and the Guarantors with all of the provisions of this Agreement, the Indenture, the Notes
and the Guarantees, as applicable, will result in a breach or violation of, or constitute a default
under (i) the certificate of incorporation, by-laws, certificate of limited partnership, limited
liability company agreement, partnership agreement or other constitutive documents of the Company,
the Guarantors or any of the Companys significant subsidiaries (the Companys significant
subsidiaries as defined in Rule 1-02 of Regulation S-X are collectively referred to as the
Significant Subsidiaries), (ii) any loan agreement, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which any
of them is bound or to which any of their properties is subject that is material to the financial
condition or prospects of the Company and its subsidiaries taken as a whole, or (iii) any law or
any rule, regulation, order or decree of any governmental agency or body or court having
jurisdiction over the Company or any of the Guarantors or any of their respective properties or
assets, except, in the case of clauses (ii) and (iii) above, for such breach, violation or default
which, individually or in the aggregate, would not reasonably be expected to result in a Material
Adverse Change. Neither the Company nor any of its Significant Subsidiaries is in violation or
breach of its certificate of incorporation, by-laws, certificate of limited partnership, limited
liability company agreement, partnership agreement or other constitutive documents, (ii) none of
the Company, any of the Guarantors or any of the Companys Significant Subsidiaries is in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any loan agreement, indenture, mortgage, deed of
trust or other agreement or instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject, (iii) none of the Company, any of the Guarantors or any
of the Companys Significant
Subsidiaries is in violation of any law or any rule, regulation, order or decree of any
governmental agency or body or court having jurisdiction over the Company or its subsidiaries or
any of their respective properties or assets or (iv) has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary for the conduct of
its business or the ownership or holding of its property, except in the case of clauses (ii), (iii)
and (iv), to the extent any such violation, breach, default or failure would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Change.
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t)
Governmental Approvals.
No consent, approval, order or authorization of any
governmental agency or body or court is required in connection with the consummation of the
transactions contemplated by this Agreement, the Indenture, the Notes or the Guarantees, except for
such consents, approvals, orders and authorizations required under the securities or Blue Sky
laws of certain jurisdictions, and except, further, for such consents, approvals, orders and
authorizations which have been obtained and are in full force and effect.
u)
No Material Actions or Proceedings.
Except as described or contemplated in the Disclosure
Package and the Prospectus, there is no litigation or legal or governmental proceeding to which the
Company or any Guarantor is a party or to which any property or assets of the Company or any
Guarantor is subject or which is pending or, to the knowledge of the Company or any Guarantor,
threatened against the Company or any Guarantor which if adversely determined, would, individually
or in the aggregate, be reasonably likely to result in a Material Adverse Change.
v)
Labor Matters.
None of the Company, the Guarantors or any of the Companys Significant
Subsidiaries is involved in any strike, job action or labor dispute with any group of employees
that would reasonably be expected to have a Material Adverse Change, and, to the Companys
knowledge, no such action or dispute is threatened.
w)
Intellectual Property Rights.
The Company, each of the Guarantors and each of the
Companys Significant Subsidiaries own or possess adequate rights to use all material patents,
trademarks, service marks, trade names, copyrights, licenses, inventions, trade secrets and other
rights, and all registrations or applications relating thereto, described in the Disclosure Package
and the Prospectus as being owned by them or necessary for the conduct of their business, except as
such would not reasonably be expected to have a Material Adverse Change (individually or in the
aggregate), and the Company is not aware of any pending or threatened claim to the contrary or any
pending or threatened challenge by any other person to the rights of the Company and its
subsidiaries with respect to the foregoing which, if determined adversely to the Company and its
subsidiaries, would reasonably be expected to have a Material Adverse Effect (individually or in
the aggregate).
x)
No Additional Documents.
There are no contracts or documents which would be required to be
described in a prospectus contained in a registration statement on Form S-3 under the Securities
Act or by the rules and regulations thereunder which have not been described in the Disclosure
Package and the Prospectus.
y)
Capital Stock and Long-Term Debt.
Since the respective dates as of which information is
given in the Disclosure Package and the Prospectus, and except as disclosed or contemplated in the
Disclosure Package and the Prospectus, there has not been any material change in the capital stock,
membership, partnership or other equity interests or material increase in long-term debt of the
Company or its subsidiaries or any Material Adverse Change, or any development involving or which
would reasonably be expected to involve a Material Adverse Change.
z)
Liabilities and Dividends.
Since the respective dates as of which information is given in
the Disclosure Package and the Prospectus, and except as disclosed or contemplated in
8
the Disclosure Package and the Prospectus, the Company and its subsidiaries have not incurred any
liability or obligation, direct or contingent, or entered into any transaction, in each case not in
the ordinary course of business, that would reasonably be expected to have a Material Adverse
Change or declared or paid any special dividend on its capital stock, partnership or other equity
interests.
aa)
Company Not an Investment Company.
The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the
Investment Company
Act
). The Company is not, and after receipt of payment for the Notes and the application of
the proceeds thereof as contemplated under the caption Use of Proceeds in the Preliminary
Prospectus and the Prospectus will not be, required to register as an investment company within
the meaning of the Investment Company Act.
bb)
No Price Stabilization or Manipulation.
The Company and the Guarantors have not taken and
will not take, directly or indirectly, any action designed to result in stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
cc)
No Unlawful Contributions or Other Payments.
To the best of the Companys knowledge, none
of the Company, any of the Guarantors or any of the Companys Significant Subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment, except as would not reasonably be expected to have a
Material Adverse Change or as described in the Preliminary Prospectus and the Prospectus.
dd)
No Conflict with Money Laundering Laws.
To the Companys knowledge, the operations of the
Company, the Guarantors and the Companys subsidiaries are, and have been, conducted at all times
in compliance in all material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the
Money Laundering Laws
), and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the Company,
the Guarantors or any of the Companys Significant Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, the Guarantors or any of the
Companys Significant Subsidiaries, threatened, except for any such action, suit or proceeding as
would not be reasonably be expected to have a Material Adverse Change.
ee)
No Conflict with OFAC Laws.
None of the Company, the Guarantors or any of the Companys
Significant Subsidiaries nor, to the knowledge of the Company or the Guarantors, any director,
officer, agent, employee or affiliate of the Company or any of the Guarantors is currently subject
to any U.S. sanctions administered by the Office of Foreign
9
Assets Control of the U.S. Treasury Department (
OFAC
); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.
ff)
Compliance with Environmental Laws.
Except as disclosed in the Disclosure Package and the
Prospectus (i) to the knowledge of the Company, there has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or any of their
predecessors in interest) at, upon or from any of the property now or previously owned or leased by
the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or would not be reasonably likely to have, singularly or in
the aggregate with all such violations and remedial actions, a Material Adverse Change; and (ii) to
the knowledge of the Company, there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances with respect to the Company or any of its subsidiaries, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse
Change; and the terms hazardous wastes, toxic wastes, hazardous substances and medical
wastes shall have the meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
gg)
ERISA Compliance.
Except as disclosed in the Disclosure Package and the Prospectus, the
Company is in compliance in all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (
ERISA
); no reportable event (as defined in ERISA)
has occurred with respect to any pension plan (as defined in ERISA) subject to Title IV of ERISA
for which the Company would have any material liability; the Company has not incurred and does not
expect to incur any liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any such pension plan or (ii) Sections 412 or 4971 of the Internal Revenue Code
of 1986, as amended, including the regulations and published interpretations thereunder (the
Code
) which, in the case of each of the foregoing clauses (i) and (ii), would result in a
Material Adverse Change (other than contributions in the normal course which are not in default);
and each pension plan for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would reasonably be expected to cause the
loss of such qualification.
hh)
Sarbanes-Oxley Compliance
. There is and has been no failure on the part of the Company
and any of the Companys directors or officers, in their capacities as such, to comply in all
material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and
10
regulations promulgated in connection therewith (the
Sarbanes-Oxley Act
), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
ii)
Internal Controls and Procedures.
The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with managements
general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain accountability for assets, (iii) access to assets is permitted only in accordance with
managements general or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect thereto. The Companys internal controls over financial reporting were effective as of
December 31, 2009 and, to the Companys knowledge, continue to be effective in all material
respects. The Company is not aware of any material weaknesses in its internal control over
financial reporting.
jj)
Disclosure Controls and Procedures
. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act; and such disclosure controls and procedures have been designed to
ensure that information required to be disclosed in the Companys reports under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the Commissions
rules and forms, and that such information is accumulated and communicated to the Companys
management, including its principal executive officer and principal financial officer, in order to
allow timely decisions regarding required disclosures; and such disclosure controls and procedures
were effective at the reasonable assurance level at December 31, 2009 and, to the Companys
knowledge, continue to be effective at the reasonable assurance level.
kk)
Ranking
. The Notes and the Guarantees will be
pari passu
with all existing and future
unsecured and unsubordinated indebtedness of the Company and the Guarantors, as applicable.
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
Section 2.
Purchase, Sale and Delivery of the Notes.
a)
The Notes.
The Company agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, each Underwriter agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Notes set forth opposite such Underwriters name on
Schedule A
at a purchase price of 99.029% of the principal amount of the Notes, payable on
the Closing Date. The Notes will have annexed thereto a notation relating to the Guarantees.
11
b)
The Closing Date.
Delivery of certificates for the Notes in global form to be purchased by
the Underwriters and payment therefor shall be made at the offices of Latham & Watkins LLP at 885
Third Avenue, New York, NY (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m., New York City time, on May 21, 2010, or such other time and date as
the Underwriters and the Company shall mutually agree (the time and date of such closing are called
the
Closing Date
).
c)
Public Offering of the Notes.
The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
d)
Payment for the Notes.
Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
e)
Delivery of the Notes.
The Company and the Guarantors shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several Underwriters certificates for the
Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The certificates for the Notes
shall be in such denominations and registered in such names and denominations as the
Representatives shall have requested at least two full business days prior to the Closing Date and
shall be made available for inspection on the business day preceding the Closing Date at a location
in New York City, as the Representatives may designate. Time shall be of the essence, and delivery
at the time and place specified in this Agreement is a further condition to the obligations of the
Underwriters.
Section 3.
Covenants of the Company.
The Company and the Guarantors jointly and severally covenant and agree with each Underwriter
as follows:
a)
Compliance with Securities Regulations and Commission Requests.
The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period, (iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement
12
to the Preliminary Prospectus or the Prospectus or for additional information, and (iv) the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the
Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424 of the Securities Act and
will take such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus
and the Prospectus transmitted for filing under Rule 424 of the Securities Act was received for
filing by the Commission and, in the event that it was not, it will promptly file such document.
During the Prospectus Delivery Period, the Company will use its reasonable best efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
b)
Filing of Amendments.
During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Securities Act (the
Prospectus Delivery Period
),
the Company will give the Representatives notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or
any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant
to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
c)
Delivery of Registration Statements.
The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The Registration Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
d)
Delivery of Prospectuses.
The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
13
e)
Continued Compliance with Securities Laws
. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or supplement the Disclosure Package or
the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the
Representatives of any such event, development or condition and (2) promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the Disclosure Package or
the Prospectus comply with such law, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the Underwriters may reasonably
request.
f)
Blue Sky Compliance.
The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company and
each of the Guarantors shall not be required to qualify to transact business or to take any action
that would subject the Company or any Guarantor to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to taxation as a
foreign business. The Company and each of the Guarantors will advise the Representatives promptly
of the suspension of the qualification or registration of (or any such exemption relating to) the
Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company and each Guarantor shall use their respective
best efforts to obtain the withdrawal thereof at the earliest possible moment.
g)
Use of Proceeds.
The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption Use of Proceeds in the Preliminary Prospectus and
the Prospectus.
h)
Depositary.
The Company will cooperate with the Underwriters and use its best efforts to
permit the Notes to be eligible for clearance and settlement through the facilities of the
Depositary.
i)
Agreement Not to Offer or Sell Additional Securities.
During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without
14
the prior written consent of the Representatives (which consent may be withheld at the sole
discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open put equivalent position within the meaning
of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in respect of, any debt
securities of the Company similar to the Notes or securities exchangeable for or convertible into
debt securities similar to the Notes (other than as contemplated by this Agreement with respect to
the Notes).
j)
Final Term Sheet
. The Company and the Guarantors will prepare a final term sheet
containing only a description of the Notes, in a form approved by the Underwriters and attached as
Annex III
hereto, and will file such term sheet pursuant to Rule 433(d) under the
Securities Act within the time required by such rule (such term sheet, the
Final Term
Sheet
). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this
Agreement.
k)
Permitted Free Writing Prospectuses
. The Company and the Guarantors represent that they
have not made, and agree that, unless they obtain the prior written consent of the Representatives,
they will not make, any offer relating to the Notes that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a free writing prospectus (as defined in Rule 405
of the Securities Act) required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act; provided that the prior written consent of the
Representatives shall be deemed to have been given in respect of any Issuer Free Writing
Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to
or deemed to be consented to by the Representatives is hereinafter referred to as a
Permitted
Free Writing Prospectus
. The Company agrees that (i) it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii)
it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of
the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping. The Company consents to the use
by any Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus
as defined in Rule 433 under the Securities Act, and (b) contains only (i) information describing
the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under
the Securities Act or (iii) information that describes the final terms of the Notes or their
offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k).
l)
Notice of Inability to Use Automatic Shelf Registration Statement Form
. If at any time
during the Prospectus Delivery Period, the Company or any Guarantor receives from the Commission a
notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf
registration statement form, the Company and the Guarantors will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or post-effective amendment on the
proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use their
best efforts to cause such registration statement of post-effective amendment to be declared
effective and (iv) promptly notify the Representatives of such effectiveness. The Company and the
Guarantors will take all other action necessary or appropriate to permit the public offering and
sale of the Notes to continue as contemplated in the registration statement that was the subject of
the Rule 401(g)(2) notice or for which the
15
Company or any Guarantor has otherwise become ineligible. References herein to the Registration
Statement shall include such new registration statement or post-effective amendment, as the case
may be.
m)
Filing Fees
. The Company agrees to pay the required Commission filing fees relating to the
Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the
Securities Act.
n)
Compliance with Sarbanes-Oxley Act.
During the Prospectus Delivery Period, the Company and
the Guarantors will comply with all applicable securities and other laws, rules and regulations,
including, without limitation, the Sarbanes-Oxley Act, and use their best efforts to cause the
Companys and each Guarantors respective directors and officers, in their capacities as such, to
comply with such laws, rules and regulations, including, without limitation, the provisions of the
Sarbanes-Oxley Act.
o)
No Manipulation of Price.
Neither the Company nor any Guarantor will take, directly or
indirectly, any action designed to cause or result in, the stabilization or manipulation of the
price of the Notes to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company or the Guarantors of any one or more of the
foregoing covenants or extend the time for their performance.
Section 4.
Payment of Expenses.
The Company and the Guarantors agree to pay all
costs, fees and expenses incurred in connection with the performance of their obligations hereunder
and in connection with the transactions contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Notes (including all printing and engraving
costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Notes, (iii) all fees and expenses of the Companys or any Guarantors counsel,
independent public or certified public accountants and other advisors to the Company or any
Guarantor, (iv) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus,
the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this
Agreement, the Indenture, the DTC Agreement and the Notes, (v) all filing fees, reasonable
attorneys fees and expenses incurred by the Company, the Guarantors or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Notes for offer and sale under the state securities or blue
sky laws, and, if requested by the Representatives, preparing a Blue Sky Survey or memorandum,
and any supplements thereto, advising the Underwriters of such qualifications, registrations and
exemptions, (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel
to the Underwriters in connection with, the review, if any, by the FINRA of the terms of the sale
of the Notes, (vii) the fees and expenses of the Trustee (including the fees and disbursements of
counsel for the Trustee) in connection with the Indenture and the Notes, (viii) any fees payable in
connection with the rating of the Notes with the ratings agencies, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company in connection with approval of
the Notes by the Depositary for book-
16
entry transfer, (x) all other fees, costs and expenses referred to in Item 14 of Part II of the
Registration Statement, and (xi) all other fees, costs and expenses incurred in connection with the
performance of their obligations hereunder for which provision is not otherwise made in this
Section. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters
shall pay their own expenses, including the fees and disbursements of their counsel.
Section 5.
Conditions of the Obligations of the Underwriters.
The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
Closing Date as though then made and to the timely performance by the Company of its covenants and
other obligations hereunder, and to each of the following additional conditions:
a)
Effectiveness of Registration Statement
. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall
have been filed with the Commission in accordance with Rule 424(b) of the Securities Act (or any
required post-effective amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A of the Securities Act).
b)
Accountants Comfort Letter.
On the date hereof, the Representatives shall have received
from PricewaterhouseCoopers LLC, an independent registered public accounting firm for the Company,
a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to
the Representatives with respect to the audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
c)
Bring-down Comfort Letter
. On the Closing Date, the Representatives shall have received
from PricewaterhouseCoopers LLP, independent public or certified public accountants for the
Company, a letter dated such date, in form and substance satisfactory to the Representatives, to
the effect that they reaffirm the statements made in the letter furnished by them pursuant to
subsection (b) of this Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to the Closing Date.
d)
No Objection.
If the Registration Statement and/or the offering of the Notes has been
filed with the FINRA for review, the FINRA shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
e)
No Material Adverse Change or Ratings Agency Change.
For the period from and after the
date of this Agreement and prior to the Closing Date:
17
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (c) of this Section 5 which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any nationally recognized
statistical rating organization as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
f)
Opinion of Counsel for the Company.
On the Closing Date, the Representatives shall have
received the favorable opinion and negative assurance letter of Simpson Thacher & Bartlett LLP,
counsel for the Company and the Guarantors, dated as of such Closing Date, substantially in the
form of which is attached as
Exhibit B-1
and
Exhibit B-2
.
g)
Opinion of Steven M. Post.
On the Closing Date, the Representatives shall have received
the favorable opinion of Steven M. Post, General Counsel of the Company, dated as of such Closing
Date, substantially in the form of which is attached as
Exhibit C
.
h)
Opinion of Counsel for the Underwriters.
On the Closing Date, the Representatives shall
have received the favorable opinion of Latham & Watkins LLP, counsel for the Underwriters, dated as
of such Closing Date, with respect to such matters as may be reasonably requested by the
Underwriters.
i)
Officers Certificate.
On the Closing Date, the Representatives shall have received a
written certificate from the Company and the Guarantors executed by their respective Chairman of
the Board or their respective Chief Executive Officer and by their respective Chief Financial
Officer or Chief Accounting Officer, dated as of such Closing Date, to the effect that:
(i) the Company and the Guarantors have received no stop order suspending the
effectiveness of the Registration Statement, and no proceedings for such purpose have been
instituted or threatened by the Commission;
(ii) the Company and the Guarantors have not received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form;
(iii) the representations, warranties and covenants of the Company and the Guarantors
set forth in Section 1 of this Agreement are true and correct with the same force and effect
as though expressly made on and as of such Closing Date; and
18
(iv) the Company and the Guarantors have complied with all the agreements hereunder
and satisfied all the conditions on their part to be performed or satisfied hereunder at or
prior to such Closing Date.
j)
Additional
Documents
.
On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6.
Reimbursement of Underwriters Expenses.
If this Agreement is terminated
by the Representatives pursuant to Section 5 or 11(i) or (iv), or if the sale to the Underwriters
of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company or any Guarantor to perform any agreement herein or to comply with any
provision hereof, the Company and the Guarantors agree to reimburse the Representatives and the
other Underwriters (or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses (including fees and
disbursements of counsel) that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale of the Notes,
including but not limited to fees and disbursements of counsel, printing expenses, travel expenses,
postage, facsimile and telephone charges.
Section 7.
Effectiveness of this Agreement.
This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8.
Indemnification.
(a)
Indemnification of the Underwriters.
The Company and the Guarantors hereby jointly and
severally agree to indemnify and hold harmless each Underwriter, its directors, officers, and
employees, and each person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter or such director, officer, employee or controlling person may
become subject, under the Securities Act, the Exchange Act or other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or
is based (i) upon any untrue statement or
19
alleged untrue statement of a material fact contained in
the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not
misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact
contained in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and to reimburse each
Underwriter and each such director, officer, employee and controlling person for any and all
expenses (including the reasonable fees and disbursements of counsel chosen by BAS) as such
expenses are reasonably incurred by such Underwriter or such director, officer, employee or
controlling person in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action;
provided, however
, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent,
but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement, any Company Additional Written Communication, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition
to any liabilities that the Company and the Guarantors may otherwise have.
(b)
Indemnification of the Company and the Guarantors.
Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors, each of their
respective directors, each of their respective officers who signed the Registration Statement and
each person, if any, who controls the Company or the Guarantors within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, the Guarantors or any such respective director, officer or
controlling person may become subject, under the Securities Act, the Exchange Act, or other federal
or state statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such Underwriter), insofar
as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any amendment thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Company Additional Written Communication, any Issuer
Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and to reimburse the Company, the Guarantors or any such
respective director, officer or controlling person for any legal and other expense reasonably
incurred by the Company, any Guarantor or any such respective director, officer or controlling
person in connection with investigating, defending, settling, compromising or paying any such loss,
claim,
20
damage, liability, expense or action. The Company and the Guarantors hereby acknowledge
that the only information furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement, any Company Additional Written Communication, any
Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) are the statements set forth in paragraphs 8 and 9 under the heading entitled
Underwriting in the Preliminary Prospectus and the Prospectus. The indemnity agreement set forth
in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c)
Notifications and Other Indemnification Procedures.
Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, such indemnified party shall have the right to employ its own counsel in any
such action and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has
failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and
such indemnified party shall have reasonably concluded that either (x) there may be one or more
legal defenses available to it which are different from or additional to those available to the
indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between
such indemnified party and the indemnifying party or such affiliate of the
indemnifying party (it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to a single firm of
local counsel) for all such indemnified parties, which firm shall be designated in writing by BAS
and that all such reasonable fees and expenses shall be reimbursed as they are incurred). Upon
receipt of notice from the indemnifying party to such indemnified party of such indemnifying
partys election so to assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party under this Section 8
for any legal or other expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of
counsel shall be at the expense of the indemnifying party.
21
(d)
Settlements.
The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section 9.
Contribution.
If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other
hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the
other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the offering of the Notes
pursuant to this Agreement (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth on the front cover
page of the Prospectus bear to the aggregate initial public offering price of the Notes as set
forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the
other hand, and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
22
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal
or other fees or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A
. For purposes of this Section 9, each director, officer, and employee of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company and the Guarantors, each officer of the Company and the Guarantors
who signed the Registration Statement, and each person, if any, who controls the Company or the
Guarantors with the meaning of the Securities Act and the Exchange Act shall have the same rights
to contribution as the Company.
Section 10.
Default of One or More of the Several Underwriters.
If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
such Notes set forth opposite their respective names on
Schedule A
bears to the aggregate
principal amount of such Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the Representatives with the
consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such Notes and
the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10%
of the aggregate principal amount of Notes to be purchased on such date, and arrangements
satisfactory to the Representatives and the Company for the purchase of such Notes are not made
within 48 hours after such default, this Agreement shall terminate without liability of any party
to any other party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination. In any such case, either the Representatives or the
Company shall have the right to postpone the Closing Date, but in no event for longer than seven
days in order that the required changes, if any, to the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or
arrangements may be effected.
23
As used in this Agreement, the term Underwriter shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11.
Termination of this Agreement.
Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Companys securities shall have been suspended or limited by
the Commission or the New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum
or maximum prices shall have been generally established on any of such stock exchanges by the
Commission or the FINRA; (ii) a general banking moratorium shall have been declared by any of
federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity involving the United States, or any
change in the United States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States or international
political, financial or economic conditions, as in the judgment of the Representatives is
material and adverse and makes it impracticable or inadvisable to market the Notes in the
manner and on the terms described in the Disclosure Package or the Prospectus or to enforce
contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) there shall have occurred a material disruption in
commercial banking or securities settlement or clearance services. Any termination pursuant to this
Section 11 shall be without liability of any party to any other party except as provided in
Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall survive such
termination and remain in full force and effect.
Section 12
.
No Fiduciary Duty
. Each of the Company and the Guarantors acknowledges
and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the
determination of the public offering price of the Notes and any related discounts and commissions,
is an arms-length commercial transaction between the Company and the Guarantors, on the one hand,
and the several Underwriters, on the other hand, and the Company and the Guarantors are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated
hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the financial advisor, agent or fiduciary of the Company, the Guarantors,
or any of their respective affiliates, stockholders, creditors or employees or any other party;
(iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Company or the Guarantors with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or the Guarantors on other matters) and no Underwriter has any
obligation to the Company or the Guarantors with respect to
24
the offering contemplated hereby except
the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their
respective affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Company and the Guarantors and that the several Underwriters have no
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company and the Guarantors have
consulted their own legal, accounting, regulatory and tax advisors to the extent deemed
appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantors and the several Underwriters with respect to the subject matter
hereof. The Company and the Guarantors hereby waive and release, to the fullest extent permitted
by law, any claims that the Company may have against the several Underwriters with respect to any
breach or alleged breach of agency or fiduciary duty.
Section 13.
Representations and Indemnities to Survive Delivery.
The respective
indemnities, agreements, representations, warranties and other statements of the Company and the
Guarantors, of their respective officers and of the several Underwriters set forth in or made
pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of
any (A) investigation, or statement as to the results thereof, made by or on behalf of any
Underwriter, the officers or employees of any Underwriter, or any person controlling the
Underwriter, the Company, the Guarantors, the officers or employees of the Company or the
Guarantors, or any person controlling the Company or the Guarantors, as the case may be or (B)
acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and
payment for the Notes sold hereunder and any termination of this Agreement.
Section 14.
Notices.
All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Banc of America Securities LLC
One Bryant Park
NY1-100-18-03
New York, NY 10036
Facsimile: 646-855-5958
Attention: High Grade Transaction Management/Legal
with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Facsimile: 212-751-4864
Attention: Kirk A. Davenport II
If to the Company or the Guarantors:
L-3 Communications Corporation
600 Third Avenue
New York, NY 10016
Facsimile: 212-805-5306
Attention: Steven M. Post
25
with a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Facsimile: 212-455-2502
Attention: Avrohom J. Kess
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15.
Successors.
This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term successors shall not include any purchaser of the Notes
as such from any of the Underwriters merely by reason of such purchase.
Section 16.
Partial Unenforceability.
The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17.
Governing Law Provisions.
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
Section 18.
General Provisions.
This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly
allocate the risks in light of the ability of the parties to investigate the Company, its
affairs and its business in order to assure that adequate disclosure has been made in the
Registration Statement, the
Disclosure Package and the Prospectus (and any amendments and
supplements thereto), as required by the Securities Act and the Exchange Act.
26
Exhibit 99.1
EXECUTION VERSION
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement among the Company, the Guarantors and the
several Underwriters in accordance with its terms.
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Very truly yours,
L-3 COMMUNICATIONS CORPORATION,
as Issuer
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, General
Counsel and Corporate Secretary
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Guarantors
:
BROADCAST SPORTS INC.
D.P. ASSOCIATES, INC.
ELECTRODYNAMICS, INC.
INTERNATIONAL RESOURCES GROUP LTD.
INTERSTATE ELECTRONICS CORPORATION
LINCOM WIRELESS, INC.
L-3 CHESAPEAKE SCIENCES CORPORATION
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS APPLIED SIGNAL AND IMAGE TECHNOLOGY, INC.
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS, INC.
L-3 COMMUNICATIONS CYTERRA CORPORATION
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC.
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC.
L-3 COMMUNICATIONS EO/IR, INC.
L-3 COMMUNICATIONS EOTECH, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC
L-3 COMMUNICATIONS INFRAREDVISION TECHNOLOGY CORPORATION
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS KLEIN ASSOCIATES, INC.
L-3 COMMUNICATIONS MARIPRO, INC.
L-3 COMMUNICATIONS MOBILE-VISION, INC.
Underwriting Agreement
L-3 COMMUNICATIONS NOVA ENGINEERING, INC.
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC.
L-3 COMMUNICATIONS SHARED SERVICES, LLC
L-3 COMMUNICATIONS SONOMA EO, INC.
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS WESTWOOD CORPORATION
L-3 FUZING AND ORDNANCE SYSTEMS, INC.
L-3 G.A. INTERNATIONAL, INC.
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.
L-3 SERVICES, INC.
L-3 UNMANNED SYSTEMS, INC.
MICRODYNE COMMUNICATIONS TECHNOLOGIES INCORPORATED
MICRODYNE CORPORATION
MICRODYNE OUTSOURCING INCORPORATED
PAC ORD INC.
POWER PARAGON, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR INC.
TITAN FACILITIES, INC.
As Guarantors
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, Secretary
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L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a Delaware limited partnership
As a Guarantor
By: L-3 COMMUNICATIONS AIS GP CORPORATION, as General Partner
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By:
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/s/ Steven M. Post
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Name:
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Steven M. Post
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Title:
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Senior Vice President, Secretary
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Underwriting Agreement
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
BANC OF AMERICA SECURITIES LLC
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
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Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
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By: Banc of America Securities LLC
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By:
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/s/
Douglas A. Muller
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Name:
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Douglas A. Muller
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Title:
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Managing Director
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By: Barclays Capital Inc.
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By:
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/s/
Pamela Kendall
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Name:
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Pamela Kendall
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Title:
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Director
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By: Deutsche Bank Securities Inc.
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By:
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/s/
Marc
Fratepietro
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Name:
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Marc
Fratepietro
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Title:
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Managing Director
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By: Deutsche Bank Securities Inc.
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By
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/s/
John C. McCabe
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Name:
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John C. McCabe
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Title:
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Director
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Underwriting Agreement
SCHEDULE A
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Aggregate
Principal
Amount of
Notes to be
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Underwriters
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Purchased
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Banc of America Securities LLC
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$
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140,000,000
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Barclays Capital Inc.
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$
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140,000,000
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Deutsche Bank Securities Inc.
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$
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140,000,000
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Credit
Agricole Securities (USA) Inc
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$
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70,000,000
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Wells Fargo Securities, LLC
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$
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70,000,000
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SunTrust Robinson Humphrey, Inc.
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$
|
32,000,000
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Scotia Capital (USA) Inc.
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$
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32,000,000
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SG Americas Securities, LLC
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$
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32,000,000
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Mitsubishi UFJ Securities (USA), Inc.
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$
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32,000,000
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RBS Securities Inc.
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$
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32,000,000
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BNY Mellon Capital Markets, LLC
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$
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16,000,000
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ANZ Securities, Inc.
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$
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16,000,000
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HSBC Securities (USA) Inc.
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$
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12,000,000
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U.S. Bancorp Investments, Inc.
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$
|
12,000,000
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Comerica Securities Inc.
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$
|
12,000,000
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Daiwa Capital Markets America Inc.
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$
|
12,000,000
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|
|
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Total
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$
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800,000,000
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Sch-1
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated May 18, 2010.
A-1
ANNEX II
Company Additional Written Communication
Electronic (Netroadshow) road show of the Company relating to the offering of the Notes dated May
18, 2010.
A-2
ANNEX III
L-3 COMMUNICATIONS CORPORATION
Final Term Sheet
$800,000,000 4.750% Senior Notes due 2020
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Issuer:
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L-3 Communications Corporation
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Principal Amount:
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$800,000,000
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Maturity Date:
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July 15, 2020
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Interest Rate:
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4.750%
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Yield to Maturity:
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4.789%
|
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Spread to Benchmark Treasury:
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T+138 bps
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Benchmark Treasury:
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3.500% due May 15, 2020
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Benchmark Treasury Price and
Yield:
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100-24+ / 3.409%
|
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Interest Payment Dates:
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January 15 and July 15 commencing on
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January 15, 2011
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Redemption Provision:
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Make Whole Call at T+25 bps
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Price to Public:
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99.679%
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Settlement Date:
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T+3; May 21, 2010
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CUSIP / ISIN:
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502413 AZ0
/
US502413AZ05
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Ratings
1
:
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Baa3 by Moodys Investors Service, Inc. /
BBB- by Standard & Poors / BBB- by
Fitch Ratings
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Joint Book-Running Managers:
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Banc of America Securities LLC
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Barclays Capital Inc.
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Deutsche Bank Securities Inc.
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Credit Agricole Securities (USA) Inc.
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Wells Fargo Securities LLC
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Joint Lead Managers:
|
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SunTrust Robinson Humphrey Inc.
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Scotia Capital (USA) Inc.
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SG Americas Securities LLC
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Mitsubishi UFJ Securities (USA) Inc.
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RBS Securities Inc.
|
Senior Co-Managers:
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BNY Mellon Capital Markets LLC
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ANZ Securities Inc.
|
A-3
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Co-Managers:
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HSBC Securities (USA) Inc.
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U.S. Bancorp Investments Inc.
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Comerica Securities Inc.
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Daiwa Capital Markets America Inc.
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1) A securities rating is not a recommendation to buy, sell or hold securities and may be subject
to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the active joint book-running managers
can arrange to send you the prospectus if you request it by (i) calling or e-mailing Banc of
America Securities LLC at 1-800-294-1322 or dg.prospectus_distribution@bofasecurities.com; (ii)
calling or e-mailing Barclays Capital Inc. at 1-888-603-5847 or barclaysprospectus@broadridge.com
(iii) calling or e-mailing Deutsche Bank Securities Inc. at 1-800-503-4611 or
prospectusrequest@list.db.com.
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EXHIBIT A
Guarantors
BROADCAST SPORTS INC.
D.P. ASSOCIATES, INC.
ELECTRODYNAMICS, INC.
INTERNATIONAL RESOURCES GROUP LTD.
INTERSTATE ELECTRONICS CORPORATION
LINCOM WIRELESS, INC.
L-3 CHESAPEAKE SCIENCES CORPORATION
L-3 COMMUNICATIONS ADVANCED LASER SYSTEMS TECHNOLOGY, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS APPLIED SIGNAL AND IMAGE TECHNOLOGY, INC.
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS, INC.
L-3 COMMUNICATIONS CYTERRA CORPORATION
L-3 COMMUNICATIONS DYNAMIC POSITIONING AND CONTROL SYSTEMS, INC.
L-3 COMMUNICATIONS ELECTRON TECHNOLOGIES, INC.
L-3 COMMUNICATIONS EO/IR, INC.
L-3 COMMUNICATIONS EOTECH, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS FOREIGN HOLDINGS, INC.
L-3 COMMUNICATIONS GERMANY HOLDINGS, LLC
L-3 COMMUNICATIONS INFRAREDVISION TECHNOLOGY CORPORATION
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P.
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS KLEIN ASSOCIATES, INC.
L-3 COMMUNICATIONS MARIPRO, INC.
L-3 COMMUNICATIONS MOBILE-VISION, INC.
L-3 COMMUNICATIONS NOVA ENGINEERING, INC.
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS, INC.
L-3 COMMUNICATIONS SHARED SERVICES, LLC
L-3 COMMUNICATIONS SONOMA EO, INC.
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION LLC
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS WESTWOOD CORPORATION
L-3 FUZING AND ORDNANCE SYSTEMS, INC.
L-3 G.A. INTERNATIONAL, INC.
L-3 GLOBAL COMMUNICATIONS SOLUTIONS, INC.
L-3 SERVICES, INC.
L-3 UNMANNED SYSTEMS, INC.
MICRODYNE COMMUNICATIONS TECHNOLOGIES INCORPORATED
MICRODYNE CORPORATION
MICRODYNE OUTSOURCING INCORPORATED
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PAC ORD INC.
POWER PARAGON, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR, INC.
TITAN FACILITIES, INC.
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EXHIBIT B-1
Form of Opinion of Simpson Thacher & Bartlett LLP
1. Each of the Company and the Delaware Guarantors (other than L-3 Communications Flight
Capital LLC, a Delaware limited liability company (Flight Capital), L 3 Communications Flight
International Aviation LLC, a Delaware limited liability company (Flight International), L-3
Communications Vector International Aviation LLC (Vector), a Delaware limited liability company
and L-3 Communications Vertex Aerospace LLC, a Delaware limited liability company (Vertex and,
together with Flight Capital, Flight International and Vector, the LLCs), the New Delaware
Guarantors and L-3 Communications Integrated Systems L.P., a Delaware limited partnership (the
LP)) has been duly incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware, and has full corporate power and authority necessary to conduct
its respective businesses as described in the Prospectus.
2. Each of the New Delaware Guarantors is validly existing as a corporation or limited
liability company in good standing under the laws of Delaware, and has all corporate or limited
liability company, as the case may be, power and authority necessary to conduct its respective
businesses as described in the Prospectus.
3. Each of the LLCs has been duly formed and is validly existing as a limited liability
company in good standing under the laws of Delaware, and has all limited liability company power
and authority necessary to conduct its respective businesses as described in the Prospectus.
4. The LP has been duly formed and is validly existing as a limited partnership in good
standing under the laws of Delaware, and has all limited partnership power and authority necessary
to conduct its business as described in the Prospectus.
5. The Indenture has been duly qualified under the Trust Indenture Act and the Indenture
(including the Guarantees) has been duly authorized, executed and delivered by the Company and the
Delaware Guarantors and, assuming that the Indenture is the valid and legally binding obligation of
the Trustee, constitutes a valid and legally binding obligation of the Company and the Delaware
Guarantors enforceable against the Company and the Delaware Guarantors in accordance with its
terms.
6. Assuming that the Indenture (including the Guarantees) has been duly authorized, executed
and delivered by the Non-Delaware Guarantors and assuming that the Indenture is the valid and
legally binding obligation of the Trustee, the Indenture (including the Guarantees) constitutes a
valid and legally binding obligation of the Non-Delaware Guarantors enforceable against the
Non-Delaware Guarantors in accordance with its terms.
7. The Notes have been duly authorized, executed and issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment and delivery in accordance with the
Underwriting Agreement, will constitute valid and legally
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binding obligations of the Company
enforceable against the Company in accordance with their terms and entitled to the benefits of the
Indenture.
8. The statements made in the Preliminary Prospectus and the Prospectus under the captions
Description of the Senior Notes and Description of Senior Unsecured Notes insofar as they
purport to constitute summaries of certain terms of documents referred to therein, constitute
accurate summaries of the terms of such documents in all material respects.
9. The statements made in the Preliminary Prospectus and the Prospectus under the caption
Material U.S. Federal Income and Estate Tax Consequences, insofar as they purport to constitute
summaries of matters of United States federal tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters described therein in all material
respects.
10. The Underwriting Agreement has been duly authorized, executed and delivered by the Company
and the Delaware Guarantors.
11. The issue and sale of the Notes by the Company, the issue of the Guarantees by the
Subsidiary Guarantors, the execution, delivery and performance by the Company and the Subsidiary
Guarantors, as applicable, with all of the provisions of the Underwriting Agreement, and the
execution and delivery of the Indenture by the Company and the Subsidiary Guarantors will not
breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument filed as an exhibit to the Exchange Act documents, nor will such
actions violate the Certificate of Incorporation or By-Laws of the Company or the Delaware
Guarantors (or, in the case of the LP, the Limited Partnership Agreement dated as of February 28,
2002, or, in the case of Flight Capital, the Limited Liability Company Agreement of Flight Capital
dated as of November 18, 2002, or, in the case of Vector, the Limited Liability Company Agreement
of Vector, dated as of January 16, 2003, or, in the case of Vertex, the Limited Liability Company
Agreement of Vertex, dated as of July 21, 2001, or, in the case of Flight International, the
Limited Liability Company Agreement of Flight International, dated as of November 18, 2002, or, in
the case of L-3 Communications Shared Services, LLC (Shared Services), the Limited Liability
Company Agreement of Shared Services, dated as of December 18, 2007, or, in the case of L-3
Communications Germany Holdings, LLC (Germany Holdings), the Limited Liability Company Agreement
of Germany Holdings, dated as of November 13, 2006), or any federal or New York statute or the
Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or the
Delaware Limited Liability Company Act or any rule or regulation that has been issued pursuant to
any federal or New York statute or the Delaware General Corporation Law or the Delaware Revised
Uniform Limited Partnership Act or the Delaware Limited Liability Company Act or any order known to
us issued pursuant to any federal or New York statute or the Delaware General Corporation Law or
the Delaware Revised Uniform Limited Partnership Act or the Delaware Limited Liability Company Act
by any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets; and no consent, approval,
authorization, order, registration or qualification of or with any federal or New York governmental
agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law or the Delaware Revised Uniform Limited Partnership Act or the Delaware Limited
Liability Company Act or, to our
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knowledge, any federal or New York court or any Delaware court
acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited
Partnership Act or the Delaware Limited Liability Company Act is required for the issuance and sale
of the Notes by the Company or the issuance of the Guarantees by the Subsidiary Guarantors and the
compliance by the Company and the Subsidiary Guarantors with all of the provisions of the
Underwriting Agreement and the Indenture. No opinion is given in this paragraph 11 with respect to
any federal or state securities law or any rule or regulation issued pursuant to any federal or
state securities law.
12. The Company is not an investment company within the meaning of and subject to regulation
under the Investment Company Act of 1940, as amended.
13. Each of the Registration Statement, as of the date it first became effective under the
Securities Act, and the Prospectus, as of May 18, 2010 appeared, on its face, to be appropriately
responsive, in all material respects, to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder, except that in each case we express no view
with respect to the financial statements or other financial or statistical data contained in,
incorporated or deemed incorporated by reference in, or omitted from the Registration Statement,
the Prospectus or the Exchange Act documents.
14. The Registration Statement has become effective under the Securities Act and, to our
knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued
or proceeding for that purpose has been instituted or threatened by the Commission. The
Preliminary Prospectus was filed on May 18, 2010 pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act, the Prospectus Supplement has been filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the Securities Act and
the free writing prospectus listed on Schedule A hereto has been filed in accordance with Rule
433(d) under the Securities Act.
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EXHIBIT B-2
Form of Negative Assurance Letter of Simpson Thacher & Bartlett LLP
Nothing has come to our attention that causes us to believe that (a) the Registration
Statement (including the Exchange Act documents and the Prospectus deemed to be a part thereof) as
of the time of the pricing of the offering of the Notes on May 18, 2010 contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) the Preliminary Prospectus (including
the Exchange Act documents incorporated or deemed incorporated by reference therein) and the Free
Writing Prospectus listed on Schedule I hereto, as of the time of the pricing of the offering of
the Notes on May 18, 2010 contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (c) the Prospectus (including the Exchange Act
documents incorporated or deemed incorporated by reference therein), as of May 18, 2010 or as of
the date hereof, contained or contains any untrue statement of a material fact or omitted or omits
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that we express no belief in any
of clauses (a), (b) or (c) above with respect to the financial statements or other financial data
contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration
Statement, the Preliminary Prospectus, the Prospectus or the Exchange Act documents.
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EXHIBIT C
Form of Opinion of Steven M. Post
1. To my knowledge and except as otherwise disclosed or contemplated in the Prospectus (or in
documents incorporated therein by reference), there are no legal or governmental proceedings
pending or threatened, against the Company or any of its subsidiaries or to which the Company or
any of its subsidiaries is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any of its
subsidiaries, are reasonably likely to cause a Material Adverse Change.
2. To my knowledge and except as otherwise disclosed or contemplated in the Prospectus (or in
documents incorporated therein by reference), there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the Company to include
such persons securities in the securities registered pursuant to the Registration Statement.
3. The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus at the time they were or hereafter are
filed with the Commission, complied or will comply in all material respects with the requirements
of the Exchange Act.
Whenever a statement herein is qualified by to my knowledge or a similar phrase, it is
intended that I do not have current, actual knowledge of the inaccuracy of such statement; however,
except as expressly indicated, I have not undertaken any independent investigation to determine the
accuracy of such statement and no inference should be drawn that I have any such knowledge solely
from my position with the Company.
I do not express any opinion herein concerning any law other than the federal law of the
United States.
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