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Exhibit 4.6
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EXECUTION VERSION
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SIXTH SUPPLEMENTAL INDENTURE
Sixth Supplemental Indenture (this “Supplemental
Indenture”), dated as of December 17, 2008, among
Finmeccanica—Societá per azioni, a societá per
azioni organized under the laws of Italy (the “Parent
Guarantor”), DRS Technologies, Inc., a Delaware corporation
(the “Company”), the other Guarantors (as defined in
the Indenture referred to herein) and The Bank of New York Mellon,
formerly known as The Bank of New York, as trustee under the
Indenture referred to below (the “Trustee”). W I
T N E S S E T H WHEREAS, the Company and the Guarantors have
heretofore executed and delivered to the Trustee a subordinated
debt securities indenture, dated as of January 31, 2006 and
supplemented by an indenture dated as of the same date (as further
supplemented, the “Indenture”), providing for the
issuance of the Company’s 75/8% Senior Subordinated Notes due
2018 (the “Notes”); WHEREAS, the aggregate
principal amount of outstanding Notes as of the date hereof is
$250,000,000; WHEREAS, on October 22, 2008, the Parent
Guarantor and the Company announced the consummation of the merger
of Dragon Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of the Parent Guarantor, with and into the
Company, with the Company surviving as a wholly owned subsidiary of
the Parent Guarantor (the “Merger”); WHEREAS,
the Parent Guarantor desires to unconditionally guarantee all of
the Company’s obligations under the Notes and the Indenture
on the terms and conditions set forth herein and therein;
WHEREAS, pursuant to Section 9.01 of the Indenture, without the
consent of any Holders of the Notes, the Trustee, the Company and
the Guarantors are authorized to add additional Guarantees with
respect to the Notes and to execute and deliver a supplemental
indenture to make any change to the Indenture that would provide
additional benefits to the Holders; WHEREAS, the changes
contained herein provide additional benefits to the Holders; and
WHEREAS, the execution and delivery of this instrument have
been duly authorized and all conditions and requirements necessary
to make this instrument a valid and binding agreement have been
duly performed and complied with; NOW THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Parent Guarantor and the Trustee mutually agree for the equal and
ratable benefit of the Holders of the Notes as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement
to Guarantee.
2.01 Guarantee. (a) Subject
to this Article 2, the Parent Guarantor hereby, jointly and
severally with the Guarantors, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the
obligations of the Company thereunder, that:
(1) the principal of, premium, if any, and
interest on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if
any, if lawful, and all other obligations of the Company to the
Holders or the Trustee thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that same
will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Parent Guarantor will be obligated,
jointly and severally with the Guarantors, to pay the same
immediately. The Parent Guarantor hereby agrees that
this is a guarantee of payment and not a guarantee of collection.
Any and all payments hereunder by the Parent Guarantor to or
for the account of any Holder shall be made free and clear of, and
without deduction or withholding for or on account of, any tax,
except to the extent such deduction or withholding is required by
law. If any tax is required by law to be deducted or
withheld by the Parent Guarantor from any such payments made by the
Parent Guarantor, the Parent Guarantor will make such deductions or
withholding and pay to the relevant taxing authority the full
amount deducted or withheld before penalties attach thereto or
interest accrues thereon and no additional amounts shall be payable
by the Parent Guarantor to the Holders to compensate for such
deduction or withholding. The deduction or withholding of any tax
in accordance with this paragraph by the Parent Guarantor from any
payments hereunder by the Parent Guarantor to or for the account of
any Holder shall not release or otherwise relieve the Guarantors of
their joint and several obligation to pay to the Holders the amount
of any such tax deduction or withholding, or the right of any
Holder to receive from the Guarantors the full amounts due under
the Indenture or the Notes.
(b) The
Parent Guarantor hereby agrees that its obligations hereunder are
unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver, modification or indulgence
granted to the Company by any Holder of the Notes with respect to
any provisions thereof; the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or
defense of a guarantor; provided, however, that, notwithstanding
the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Parent Guarantor, increase the principal
amount of the Notes, or increase the interest rate thereon, or
increase any premium payable upon redemption thereof, or alter the
stated maturity thereof. Without limiting the generality
of the foregoing, it is agreed that the occurrence of any one or
more of the following shall not alter or impair the liability of
the Parent Guarantor hereunder which shall remain absolute and
unconditional as described above: (1) any time,
waiver or consent granted to, or composition with, the Company;
(2) the release of the Company or any other Person under the
terms of any composition or arrangement with any creditor;
(3) the taking, variation, compromise, exchange renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over the assets of, the Company or
other Person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or any
failure to realize the full value of any security;
(4) the incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or status or
change of control or ownership of the Company or any other Person;
(5) any amendment (however fundamental) or replacement in
respect of any of the Notes, the Indenture or an
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