EXHIBIT 4.1
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L-3 COMMUNICATIONS CORPORATION,
As Issuer
5-7/8% SENIOR SUBORDINATED NOTES DUE 2015
----------------------
INDENTURE
Dated as of November 12, 2004
----------------------
----------------------
The Bank of New York,
As Trustee
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY
REFERENCE.............................................................2
SECTION 1.01
DEFINITIONS.................................................................................2
SECTION 1.02 OTHER
DEFINITIONS..........................................................................19
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT..........................................19
SECTION 1.04 RULES OF
CONSTRUCTION......................................................................20
ARTICLE 2. THE NOTES
............................................................................................20
SECTION 2.01 FORM AND
DATING............................................................................20
SECTION 2.02 EXECUTION AND
AUTHENTICATION...............................................................21
SECTION 2.03 REGISTRAR AND PAYING
AGENT.................................................................22
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN
TRUST........................................................22
SECTION 2.05 HOLDER
LISTS...............................................................................22
SECTION 2.06 TRANSFER AND
EXCHANGE......................................................................22
SECTION 2.07 REPLACEMENT
NOTES..........................................................................35
SECTION 2.08 OUTSTANDING
NOTES..........................................................................35
SECTION 2.09 TREASURY
NOTES.............................................................................36
SECTION 2.10 TEMPORARY
NOTES............................................................................36
SECTION 2.11
CANCELLATION...............................................................................36
SECTION 2.12 DEFAULTED
INTEREST.........................................................................36
SECTION 2.13 CUSIP
NUMBERS..............................................................................37
ARTICLE 3. REDEMPTION AND
PREPAYMENT.............................................................................37
SECTION 3.01 NOTICES TO
TRUSTEE.........................................................................37
SECTION 3.02 SELECTION OF NOTES TO BE
REDEEMED..........................................................37
SECTION 3.03 NOTICE OF
REDEMPTION.......................................................................38
SECTION 3.04 EFFECT OF NOTICE OF
REDEMPTION.............................................................38
SECTION 3.05 DEPOSIT OF REDEMPTION
PRICE................................................................39
SECTION 3.06 NOTES REDEEMED IN
PART.....................................................................39
SECTION 3.07 OPTIONAL
REDEMPTION........................................................................39
SECTION 3.08 MANDATORY
REDEMPTION.......................................................................40
SECTION 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS
PROCEEDS........................................40
ARTICLE 4. COVENANTS
............................................................................................42
SECTION 4.01 PAYMENT OF
NOTES...........................................................................42
SECTION 4.02 MAINTENANCE OF OFFICE OR
AGENCY............................................................42
SECTION 4.03
REPORTS....................................................................................42
SECTION 4.04 COMPLIANCE
CERTIFICATE.....................................................................43
SECTION 4.05
TAXES......................................................................................44
SECTION 4.06 STAY, EXTENSION AND USURY
LAWS.............................................................44
SECTION 4.07 RESTRICTED
PAYMENTS........................................................................44
SECTION 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES..................47
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
PREFERRED STOCK.................................48
SECTION 4.10 ASSET
SALES................................................................................50
i
SECTION 4.11 TRANSACTIONS WITH
AFFILIATES...............................................................51
SECTION 4.12
LIENS......................................................................................52
SECTION 4.13 FUTURE SUBSIDIARY
GUARANTEES...............................................................52
SECTION 4.14 CORPORATE
EXISTENCE........................................................................54
SECTION 4.15 OFFER TO REPURCHASE UPON CHANGE OF
CONTROL.................................................54
SECTION 4.16 NO SENIOR SUBORDINATED
DEBT................................................................55
SECTION 4.17 PAYMENTS FOR
CONSENT.......................................................................55
SECTION 4.18 CHANGES IN COVENANTS WHEN NOTES RATED
INVESTMENT GRADE.....................................55
ARTICLE 5. SUCCESSORS
...........................................................................................56
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF
ASSETS...................................................56
SECTION 5.02 SUCCESSOR CORPORATION
SUBSTITUTED..........................................................57
ARTICLE 6. DEFAULTS AND
REMEDIES.................................................................................57
SECTION 6.01 EVENTS OF
DEFAULT..........................................................................57
SECTION 6.02
ACCELERATION...............................................................................59
SECTION 6.03 OTHER
REMEDIES.............................................................................60
SECTION 6.04 WAIVER OF PAST
DEFAULTS....................................................................60
SECTION 6.05 CONTROL BY
MAJORITY........................................................................60
SECTION 6.06 LIMITATION ON
SUITS........................................................................60
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE
PAYMENT..............................................61
SECTION 6.08 COLLECTION SUIT BY
TRUSTEE.................................................................61
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF
CLAIM...........................................................61
SECTION 6.10
PRIORITIES.................................................................................62
SECTION 6.11 UNDERTAKING FOR
COSTS......................................................................62
ARTICLE 7.
TRUSTEE...............................................................................................63
SECTION 7.01 DUTIES OF
TRUSTEE..........................................................................63
SECTION 7.02 RIGHTS OF
TRUSTEE..........................................................................64
SECTION 7.03 INDIVIDUAL RIGHTS OF
TRUSTEE...............................................................65
SECTION 7.04 TRUSTEE'S
DISCLAIMERS......................................................................65
SECTION 7.05 NOTICE OF
DEFAULTS.........................................................................65
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE
NOTES.................................................65
SECTION 7.07 COMPENSATION AND
INDEMNITY.................................................................66
SECTION 7.08 REPLACEMENT OF
TRUSTEE.....................................................................66
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER,
ETC...........................................................67
SECTION 7.10 ELIGIBILITY;
DISQUALIFICATION..............................................................68
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY..........................................68
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT
DEFEASANCE..............................................................68
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE...................................68
SECTION 8.02 LEGAL DEFEASANCE AND
DISCHARGE.............................................................68
SECTION 8.03 COVENANT
DEFEASANCE........................................................................69
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT
DEFEASANCE.................................................69
ii
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER
MISCELLANEOUS
PROVISIONS................................................................70
SECTION 8.06 REPAYMENT TO
COMPANY.......................................................................71
SECTION 8.07
REINSTATEMENT..............................................................................71
ARTICLE 9. AMENDMENT, SUPPLEMENT AND
WAIVER......................................................................72
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF
NOTES........................................................72
SECTION 9.02 WITH CONSENT OF HOLDERS OF
NOTES...........................................................72
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE
ACT........................................................74
SECTION 9.04 REVOCATION AND EFFECT OF
CONSENTS..........................................................74
SECTION 9.05 NOTATION ON OR EXCHANGE OF
NOTES...........................................................74
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS,
ETC............................................................74
ARTICLE 10. SUBSIDIARY
GUARANTEES................................................................................75
SECTION 10.01 AGREEMENT TO
GUARANTEE.....................................................................75
SECTION 10.02 EXECUTION AND DELIVERY OF SUBSIDIARY
GUARANTEES............................................75
SECTION 10.03 GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS..........................................77
SECTION 10.04
RELEASES...................................................................................77
SECTION 10.05 NO RECOURSE AGAINST
OTHERS.................................................................78
SECTION 10.06 SUBORDINATION OF SUBSIDIARY
GUARANTEES.....................................................78
ARTICLE 11.
SUBORDINATION........................................................................................79
SECTION 11.01 AGREEMENT TO
SUBORDINATE...................................................................79
SECTION 11.02 LIQUIDATION; DISSOLUTION;
BANKRUPTCY.......................................................79
SECTION 11.03 DEFAULT ON DESIGNATED SENIOR
DEBT..........................................................79
SECTION 11.04 ACCELERATION OF
SECURITIES.................................................................80
SECTION 11.05 WHEN DISTRIBUTION MUST BE PAID
OVER........................................................81
SECTION 11.06 NOTICE BY
COMPANY..........................................................................81
SECTION 11.07
SUBROGATION................................................................................81
SECTION 11.08 RELATIVE
RIGHTS............................................................................81
SECTION 11.09 SUBORDINATION MAY NOT BE IMPAIRED BY
COMPANY...............................................82
SECTION 11.10 DISTRIBUTION OR NOTICE TO
REPRESENTATIVE...................................................82
SECTION 11.11 RIGHTS OF TRUSTEE AND PAYING
AGENT.........................................................82
SECTION 11.12 AUTHORIZATION TO EFFECT
SUBORDINATION......................................................82
SECTION 11.13
AMENDMENTS.................................................................................83
ARTICLE 12.
MISCELLANEOUS........................................................................................83
SECTION 12.01 TRUST INDENTURE ACT
CONTROLS...............................................................83
SECTION 12.02
NOTICES....................................................................................83
SECTION 12.03 COMMUNICATIONS BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES.............................84
SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.........................................84
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION..............................................84
SECTION 12.06 RULE BY TRUSTEE AND
AGENTS.................................................................85
iii
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS...................85
SECTION 12.08 GOVERNING
LAW..............................................................................85
SECTION 12.09 NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS..............................................85
SECTION 12.10
SUCCESSORS.................................................................................85
SECTION 12.11
SEVERABILITY...............................................................................86
SECTION 12.12 COUNTERPART
ORIGINALS......................................................................86
SECTION 12.13 TABLE OF CONTENTS, HEADINGS,
ETC...........................................................86
EXHIBITS
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EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED
INVESTORS
EXHIBIT E FORM OF SUPPLEMENTAL INDENTURE
EXHIBIT F FORM OF NOTATION ON SENIOR
SUBORDINATED NOTE
RELATING TO SUBSIDIARY GUARANTEE
iv
Cross-Reference Table*
Trust Indenture Act Section
Indenture Section
310
(a)(1)..................................................................
7.10
(a)(2)..................................................................
7.10
(a)(3)..................................................................
N.A.
(a)(4)..................................................................
N.A.
(a)(5)..................................................................
7.10
(b).....................................................................
7.10
(c).....................................................................
N.A.
311
(a).....................................................................
7.11
(b).....................................................................
7.11
(c).....................................................................
N.A.
312
(a).....................................................................
2.05
(b).....................................................................
12.03
(c).....................................................................
12.03
313
(a).....................................................................
7.06
(b)(1)..................................................................
11.03
(b)(2)..................................................................
7.07
(c).....................................................................
7.06;12.02
(d).....................................................................
7.06
314
(a).....................................................................
4.03;12.02
(b).....................................................................
11.02
(c)(1)..................................................................
12.04
(c)(2)..................................................................
12.04
(c)(3)..................................................................
N.A.
(d).....................................................................
11.03, 11.04, 11.05
(e).....................................................................
12.05
(f).....................................................................
N.A.
315
(a).....................................................................
7.01
(b).....................................................................
7.05, 12.02
(c).....................................................................
7.01
(d).....................................................................
7.01
(e).....................................................................
6.11
316 (a)(last
sentence)......................................................
2.09
(a)(1)(A)...............................................................
6.05
(a)(1)(B)...............................................................
6.04
(a)(2)..................................................................
N.A.
(b).....................................................................
6.07
(c).....................................................................
2.12
317
(a)(1)..................................................................
6.08
(a)(2)..................................................................
6.09
(b).....................................................................
2.04
318
(a).....................................................................
12.01
(b).....................................................................
N.A.
(c).....................................................................
12.01
N.A. means not applicable.
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* This Cross-Reference Table is not part of the Indenture.
v
This INDENTURE, dated as of November 12, 2004, among L-3
Communications
Corporation, a Delaware corporation, (the "Company"), Apcom, Inc.,
a Maryland
corporation, Broadcast Sports Inc., a Delaware corporation, D.P.
Associates
Inc., a Virginia corporation, Electrodynamics, Inc., an Arizona
corporation,
Henschel Inc., a Delaware corporation, Hygienetics Environmental
Services, Inc.,
a Delaware corporation, Interstate Electronics Corporation, a
California
corporation, KDI Precision Products, Inc., a Delaware corporation.
L-3
Communications Aeromet, Inc., an Oregon corporation, L-3
Communications Vertex
Aerospace LLC, a Delaware limited liability company, L-3
Communications AIS GP
Corporation, a Delaware corporation, L-3 Communications Avionics
Systems, Inc.,
a Delaware corporation, L-3 Communications Avisys Corporation, a
Texas
corporation, L-3 Communications CSI, Inc., a California
corporation, L-3
Communications Aydin Corporation, a Delaware corporation, L-3
Communications
ESSCO, Inc., a Delaware corporation, L-3 Communications Flight
International
Aviation LLC, a Delaware limited liability company, L-3
Communications Flight
Capital LLC, a Delaware limited liability company, L-3
Communications Government
Services, Inc., a Virginia corporation, L-3 Communications ILEX
Systems, Inc., a
Delaware corporation, L-3 Communications Integrated Systems L.P., a
Delaware
limited partnership, L-3 Communications Investments Inc., a
Delaware
corporation, L-3 Communications Klein Associates, Inc., a Delaware
corporation,
L-3 Communications MAS (US) Corporation, a Delaware corporation.
L-3
Communications Security and Detection Systems, Inc., a Delaware
corporation, L-3
Communications Storm Control Systems, Inc., a California
corporation, L-3
Communications Vector International Aviation LLC, a Delaware
limited liability
company, L-3 Communications Westwood Corporation, a Nevada
corporation, MCTI
Acquisition Corporation, a Maryland corporation, Microdyne
Communications
Technologies Incorporated, a Maryland corporation, Microdyne
Corporation, a
Maryland corporation, Microdyne Outsourcing Incorporated, a
Maryland
corporation, MPRI, Inc., a Delaware corporation, Pac Ord Inc., a
Delaware
corporation, Power Paragon, Inc., a Delaware corporation, Ship
Analytics, Inc.,
a Connecticut corporation, Ship Analytics International, Inc., a
Delaware
corporation, Ship Analytics USA Inc., a Connecticut corporation,
SPD Electrical
Systems, Inc., a Delaware corporation, SPD Switchgear Inc., a
Delaware
corporation, SYColeman Corporation, a Florida corporation, Troll
Technology
Corporation, a California corporation, Wescam Air Ops Inc., a
Delaware
corporation, Wescam Air Ops LLC, a Delaware limited liability
company, Wescam
Holdings (US) Inc., a Delaware corporation, Wescam Incorporated, a
Florida
corporation, Wescam LLC, a Delaware limited liability company,
Wescam Sonoma
Inc., a California corporation and Wolf Coach, Inc., a
Massachusetts corporation
(collectively, the "Guarantors"), and The Bank of New York, as
trustee (the
"Trustee").
The Company and the Trustee agree as follows for the
benefit of each
other and for the equal and ratable benefit of the Holders of the
5-7/8% Senior
Subordinated Notes due 2015 (the "Series A Notes") and the 5-7/8%
Senior
Subordinated Notes due 2015 (the "Exchange Notes" and, together
with the Series
A Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means the global note in the
form of
Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend
and deposited with and registered in the name of the Depositary or
its nominee
that will be issued in a denomination equal to the outstanding
principal amount
of the Notes sold in reliance on Rule 144A.
"2002 Indenture" means the indenture, dated as of
June 28,
2002, among The Bank of New York, as trustee, the Company and the
guarantors
party thereto, with respect to the 2002 Notes.
"2002 Notes" means the $750,000,000 in aggregate
principal
amount of the Company's 7-5/8% Senior Subordinated Notes due 2012,
issued
pursuant to the 2002 Indenture on June 28, 2002.
"Acquired Debt" means, with respect to any
specified Person,
(i) Indebtedness of any other Person existing at the time such
other Person is
merged with or into or became a Restricted Subsidiary of such
specified Person,
including, without limitation, Indebtedness incurred in connection
with, or in
contemplation of, such other Person merging with or into or
becoming a
Restricted Subsidiary of such specified Person, and (ii)
Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Additional Interest" means all additional
interest then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Additional Notes" means any Notes (other than
the Initial
Notes) issued under this Indenture in accordance with Sections 2.02
and 4.09
hereof.
"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
co-registrar.
"Applicable Procedures" means, with respect to
any transfer or
exchange of or for beneficial interests in any Global Note, the
rules and
procedures of the Depositary, Euroclear and Clearstream that apply
to such
transfer or exchange.
2
"Asset Sale" means (i) the sale, lease,
conveyance or other
disposition of any assets or rights (including, without limitation,
by way of a
sale and leaseback) other than sales of inventory in the ordinary
course of
business (provided that the sale, lease, conveyance or other
disposition of all
or substantially all of the assets of the Company and its
Restricted
Subsidiaries taken as a whole shall be governed by the covenant
contained in
Section 4.15 and/or the covenant contained in Section 5.01 and not
by the
covenant contained in Section 4.10), and (ii) the issue or sale by
the Company
or any of its Subsidiaries of Equity Interests of any of the
Company's
Restricted Subsidiaries, in the case of either clause (i) or (ii),
whether in a
single transaction or a series of related transactions (A) that
have a fair
market value in excess of $5.0 million or (B) for net proceeds in
excess of $5.0
million. Notwithstanding the foregoing: (i) a transfer of assets by
the Company
to a Restricted Subsidiary or by a Restricted Subsidiary to the
Company or to
another Restricted Subsidiary, (ii) an issuance of Equity Interests
by a
Restricted Subsidiary to the Company or to another Restricted
Subsidiary, (iii)
a Restricted Payment that is permitted by the covenant contained in
Section 4.07
and (iv) a disposition of Cash Equivalents in the ordinary course
of business
shall not be deemed to be an Asset Sale.
"Attributable Debt" in respect of a sale and
leaseback
transaction means, at the time of determination, the present value
(discounted
at the rate of interest implicit in such transaction, determined in
accordance
with GAAP) 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).
"Bankruptcy Law" means Title 11, U.S. Code or any
similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors
of the
Company, or any authorized committee of the Board of Directors.
"Broker-Dealer" has the meaning set forth in the
Registration
Rights Agreement.
"Business Day" means any day other than a Legal
Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a
capital lease that would at such time be required to be capitalized
on a balance
sheet in accordance with GAAP.
"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 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.
"Cash Equivalents" means (i) United States
dollars, (ii)
securities issued or directly and fully guaranteed or insured by
the United
States government or any agency or instrumentality thereof having
maturities of
not more than one year from the date of acquisition, (iii)
certificates of
deposit and eurodollar time deposits with maturities of six months
or less from
3
the date of acquisition, bankers' acceptances with maturities not
exceeding six
months and overnight bank deposits, in each case with any domestic
financial
institution to the Senior Credit Facilities or with any domestic
commercial bank
having capital and surplus in excess of $500.0 million and a
Thompson Bank Watch
Rating of "B" or better, (iv) repurchase obligations with a term of
not more
than seven days for underlying securities of the types described in
clauses (ii)
and (iii) above entered into with any financial institution meeting
the
qualifications specified in clause (iii) above, (v) commercial
paper having the
highest rating obtainable from Moody's or S&P and in each case
maturing within
six months after the date of acquisition, (vi) investment funds
investing 95% of
their assets in securities of the types described in clauses
(i)-(v) above, and
(vii) readily marketable direct obligations issued by any State of
the United
States of America or any political subdivision thereof having
maturities of not
more than one year from the date of acquisition and having one of
the two
highest rating categories obtainable from either Moody's or
S&P.
"Change of Control" means the occurrence of any
of the
following: (i) 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
Restricted Subsidiaries taken as a whole to any "person" (as such
term is used
in Section 13(d)(3) of the Exchange Act) other than the Principals
or their
Related Parties (as defined below), (ii) the adoption of a plan
relating to the
liquidation or dissolution of the Company, (iii) the consummation
of any
transaction (including, without limitation, any merger or
consolidation) the
result of which is that any "person" (as defined above), other than
the
Principals and their Related Parties, becomes the "beneficial
owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act), directly
or indirectly, of more than 50% of the Voting Stock of the Company
(measured by
voting power rather than number of shares) or (iv) the first day on
which a
majority of the members of the Board of Directors of the Company
are not
Continuing Directors.
"Clearstream" means Clearstream Banking, societe
anonyme
(formerly Cedelbank).
"Consolidated Cash Flow" means, with respect to
any Person for
any period, the Consolidated Net Income of such Person for such
period plus (i)
an amount equal to any extraordinary loss plus any net loss
realized in
connection with an Asset Sale (to the extent such losses were
deducted in
computing such Consolidated Net Income), plus (ii) provision for
taxes based on
income or profits of such Person and its Restricted Subsidiaries
for such
period, to the extent that such provision for taxes was included in
computing
such Consolidated Net Income, plus (iii) consolidated interest
expense of such
Person and its Restricted Subsidiaries for such period, whether
paid or accrued
and whether or not capitalized (including, without limitation,
original issue
discount, non-cash interest payments, the interest component of any
deferred
payment obligations, the interest component of all payments
associated with
Capital Lease Obligations, imputed interest with respect to
Attributable Debt,
commissions, discounts and other fees and charges incurred in
respect of letter
of credit or bankers' acceptance financings, and net payments (if
any) pursuant
to Hedging Obligations), to the extent that any such expense was
deducted in
computing such Consolidated Net Income, plus (iv) depreciation,
amortization
(including amortization of goodwill, debt issuance costs and other
intangibles
but excluding amortization of other prepaid cash expenses that were
paid in a
prior period) and other non-cash
4
expenses (excluding any such non-cash expense to the extent that it
represents
an accrual of or reserve for cash expenses in any future period or
amortization
of a prepaid cash expense that was paid in a prior period) of such
Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were
deducted in
computing such Consolidated Net Income, minus (v) non-cash items
(excluding any
items that were accrued in the ordinary course of business)
increasing such
Consolidated Net Income for such period, in each case, on a
consolidated basis
and determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to
any Person
for any period, the aggregate of the Net Income of such Person and
its
Restricted Subsidiaries for such period, on a consolidated basis,
determined in
accordance with GAAP; provided that (i) the Net Income of any
Person that is not
a Restricted Subsidiary or that is accounted for by the equity
method of
accounting shall be included only to the extent of the amount of
dividends or
distributions paid in cash to the referent Person or a Restricted
Subsidiary
thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to
the extent that the declaration or payment of dividends or similar
distributions
by that Restricted Subsidiary of that Net Income is not at the date
of
determination permitted without any prior governmental approval
(that has not
been obtained) or, directly or indirectly, by operation of the
terms of its
charter or any agreement, instrument, judgment, decree, order,
statute, rule or
governmental regulation applicable to that Restricted Subsidiary or
its
stockholders, (iii) the Net Income of any Person acquired in a
pooling of
interests transaction for any period prior to the date of such
acquisition shall
be excluded, (iv) the cumulative effect of a change in accounting
principles
shall be excluded, (v) the Net Income of any Unrestricted
Subsidiary shall be
excluded, whether or not distributed to the Company or one of its
Restricted
Subsidiaries, and (vi) the Net Income of any Restricted Subsidiary
shall be
calculated after deducting preferred stock dividends payable by
such Restricted
Subsidiary to Persons other than the Company and its other
Restricted
Subsidiaries.
"Consolidated Tangible Assets" means, with
respect to the
Company, the total consolidated assets of the Company and its
Restricted
Subsidiaries, less the total intangible assets of the Company and
its Restricted
Subsidiaries, as shown on the most recent internal consolidated
balance sheet of
the Company and such Restricted Subsidiaries calculated on a
consolidated basis
in accordance with GAAP.
"Continuing Directors" means, as of any date of
determination,
any member of the Board of Directors of the Company who (i) was a
member of such
Board of Directors on the date of this Indenture or (ii) 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 at the
time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be
at the
address of the Trustee specified in Section 12.02 hereof or such
other address
as to which the Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the
Company, one or
more debt facilities (including, without limitation, the Senior
Credit
Facilities) or commercial paper facilities with banks or other
institutional
lenders providing for revolving credit loans, term loans,
receivables financing
(including through the sale of receivables to such lenders or to
5
special purpose entities formed to borrow from such lenders against
such
receivables) or letters of credit, in each case, as amended,
restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from
time to time
(and whether or not with the original lender or lenders and whether
provided
under the original Credit Facilities or other credit agreement,
indenture or
otherwise).
"December 1998 Indenture" means the indenture,
dated as of
December 11, 1998, among The Bank of New York, as trustee, the
Company and the
guarantors party thereto, with respect to the December 1998 Notes.
"December 1998 Notes" means the $200,000,000 in
aggregate
principal amount of the Company's 8% Senior Subordinated Notes due
2008, issued
pursuant to the December 1998 Indenture on December 11, 1998.
"December 2003 Indenture" means the indenture,
dated as of
December 22, 2003, among The Bank of New York, as trustee, the
Company and the
guarantors party thereto, with respect to the December 2003 Notes.
"December 2003 Notes" means the $400,000,000 in
aggregate
principal amount of the Company's 6-1/8% Senior Subordinated Notes
due 2014,
issued pursuant to the December 2003 Indenture on December 22,
2003.
"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.
"Definitive Note"
means a certificated Note registered in the name of the Holder
thereof and
issued in accordance with Article 2 hereof, substantially in the
form of Exhibit
A hereto, except that such Note shall not bear the Global Note
Legend and shall
not have the "Schedule of Exchanges of Interests in the Global
Note" attached
thereto.
"Depositary" means, with respect to the Notes
issuable or
issued in whole or in part in global form, the Person specified in
Section 2.03
hereof as the Depositary with respect to the Notes, until a
successor shall have
been appointed and become such pursuant to the applicable provision
of this
Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"Designated Senior Debt" means (i) any
Indebtedness
outstanding under the Senior Credit Facilities and (ii) any other
Senior Debt
permitted under the Indenture the principal amount of which is
$25.0 million or
more and that has been designated by the Company as "Designated
Senior Debt".
"Disqualified Stock" means any Capital Stock
that, by its
terms (or by the terms of any security into which it is
convertible, or for
which it is exchangeable, at the option of the holder thereof), or
upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to a
sinking fund obligation or otherwise, or redeemable at the option
of the Holder
thereof, in whole or in part, on or prior to the date that is 91
days after the
date on which the Notes mature; provided, however, that any Capital
Stock that
would constitute Disqualified Stock solely because the holders
thereof have the
right to require the Company to repurchase
6
such Capital Stock upon the occurrence of a Change of Control or an
Asset Sale
shall not constitute Disqualified Stock if the terms of such
Capital Stock
provide that the Company may not repurchase or redeem any such
Capital Stock
pursuant to such provisions unless such repurchase or redemption
complies with
Section 4.07 hereof; and provided further, that if such Capital
Stock is issued
to any plan for the benefit of employees of the Company or its
Subsidiaries or
by any such plan to such employees, such Capital Stock shall not
constitute
Disqualified Stock solely because it may be required to be
repurchased by the
Company in order to satisfy applicable statutory or regulatory
obligations.
"Equity Interests" means Capital Stock and all
warrants,
options or other rights to acquire Capital Stock (but excluding any
debt
security that is convertible into, or exchangeable for, Capital
Stock).
"Equity Offering" means any public or private
sale of equity
securities (excluding Disqualified Stock) of the Company or
Holdings, other than
any private sales to an Affiliate of the Company or Holdings.
"Euroclear" means Morgan Guaranty Trust Company
of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act
of 1934, as
amended.
"Exchange Notes" means the Notes issued in the
Exchange Offer
pursuant to Section 2.06(f).
"Exchange Offer" has the meaning set forth in the
Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the
meaning set
forth in the Registration Rights Agreement.
"Existing Indebtedness" means any Indebtedness of
the Company
and its Restricted Subsidiaries (other than Indebtedness under the
Senior Credit
Facilities and the Notes) in existence on the date of the
Indenture, until such
amounts are repaid.
"Fixed Charges" means, with respect to any Person
for any
period, the sum, without duplication, of (i) the consolidated
interest expense
of such Person and its Restricted Subsidiaries for such period,
whether paid or
accrued (including, without limitation, original issue discount,
non-cash
interest payments, the interest component of any deferred payment
obligations,
the interest component of all payments associated with Capital
Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions,
discounts and other fees and charges incurred in respect of letter
of credit or
bankers' acceptance financings, and net payments (if any) pursuant
to Hedging
Obligations, but excluding amortization of debt issuance costs) and
(ii) the
consolidated interest of such Person and its Restricted
Subsidiaries that was
capitalized during such period, and (iii) any interest expense on
Indebtedness
of another Person that is guaranteed by such Person or one of its
Restricted
Subsidiaries or secured by a Lien on assets of such Person or one
of its
Restricted Subsidiaries (whether or not such Guarantee or Lien is
called upon)
and (iv) the product of (A) all dividend payments, whether or not
in cash, on
any series of preferred stock of such Person or any of its
Restricted
Subsidiaries, other than dividend
7
payments on Equity Interests payable solely in Equity Interests of
the Company,
times (B) a fraction, the numerator of which is one and the
denominator of which
is one minus the then current combined federal, state and local
statutory tax
rate of such Person, expressed as a decimal, in each case, on a
consolidated
basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect
to any Person
for any period, the ratio of the Consolidated Cash Flow of such
Person for such
period to the Fixed Charges of such Person and its Restricted
Subsidiaries for
such period. In the event that the Company or any of its Restricted
Subsidiaries
incurs, assumes, Guarantees or redeems any Indebtedness (other than
revolving
credit borrowings) or issues preferred stock subsequent to the
commencement of
the period for which the Fixed Charge Coverage Ratio is being
calculated but on
or prior to the date on which the event for which the calculation
of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the
Fixed Charge
Coverage Ratio shall be calculated giving pro forma effect to such
incurrence,
assumption, Guarantee or redemption of Indebtedness, or such
issuance or
redemption of preferred stock, as if the same had occurred at the
beginning of
the applicable four-quarter reference period. In addition, for
purposes of
making the computation referred to above, (i) acquisitions that
have been made
by the Company or any of its Restricted Subsidiaries, including
through mergers
or consolidations and including any related financing transactions,
during the
four-quarter reference period or subsequent to such reference
period and on or
prior to the Calculation Date shall be deemed to have occurred on
the first day
of the four-quarter reference period and Consolidated Cash Flow for
such
reference period shall be calculated without giving effect to
clause (iii) of
the proviso set forth in the definition of Consolidated Net Income,
(ii) the
Consolidated Cash Flow attributable to discontinued operations, as
determined in
accordance with GAAP, and operations or businesses disposed of
prior to the
Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to
discontinued operations, as determined in accordance with GAAP, and
operations
or businesses disposed of prior to the Calculation Date, shall be
excluded, but
only to the extent that the obligations giving rise to such Fixed
Charges will
not be obligations of the referent Person or any of its Restricted
Subsidiaries
following the Calculation Date.
"Foreign Subsidiary" means a Restricted
Subsidiary of the
Company that was not organized or existing under the laws of the
United States,
any state thereof, the District of Columbia or any territory
thereof or that has
not guaranteed or otherwise provided direct credit support for any
Indebtedness
of the Company.
"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 were in effect on April 30,
1997.
"Global Notes" means, individually and
collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes,
substantially in
the form of Exhibit A hereto issued in accordance with Article 2
hereof.
"Global Note Legend" means the legend set forth
in Section
2.06(g)(ii) to be placed on all Global Notes issued under this
Indenture.
8
"Government Securities" means direct obligations
of, or
obligations guaranteed by, the United States of America for the
payment of which
guarantee or obligations the full faith and credit of the United
States is
pledged.
"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.
"Guarantors" means each Person listed in the
preamble to the
Indenture and each Subsidiary of the Company that executes a
Subsidiary
Guarantee in accordance with the provisions of the Indenture, and
their
respective successors and assigns.
"Hedging Obligations" means, with respect to any
Person, the
obligations of such Person under (i) currency exchange or interest
rate swap
agreements, interest rate cap agreements and currency exchange or
interest rate
collar agreements and (ii) other agreements or arrangements
designed to protect
such Person against fluctuations in currency exchange rates or
interest rates.
"Holder" means a Person in whose name a Note is
registered.
"Holdings" means L-3 Communications Holdings,
Inc., a Delaware
corporation.
"IAI Global Note" means the global Note in the
form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement
Legend and
deposited with and registered in the name of the Depositary or its
nominee that
will be issued in a denomination equal to the outstanding principal
amount of
the Notes sold to Institutional Accredited Investors.
"Indebtedness" means, with respect to any Person,
any
indebtedness of such Person, whether or not contingent, in respect
of borrowed
money or evidenced by bonds, notes, debentures or similar
instruments or letters
of credit (or reimbursement agreements in respect thereof) or
banker's
acceptances or representing Capital Lease Obligations or the
balance deferred
and unpaid of the purchase price of any property or representing
any Hedging
Obligations, except any such balance that constitutes an accrued
expense or
trade payable, if and to the extent any of the foregoing
indebtedness (other
than letters of credit and Hedging Obligations) would appear as a
liability upon
a balance sheet of such Person prepared in accordance with GAAP, as
well as all
indebtedness of others secured by a Lien on any asset of such
Person (whether or
not such indebtedness is assumed by such Person) and, to the extent
not
otherwise included, the Guarantee by such Person of any
indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any
date shall be
(i) the accreted value thereof, in the case of any Indebtedness
that does not
require current payments of interest, and (ii) the principal amount
thereof,
together with any interest thereon that is more than 30 days past
due, in the
case of any other Indebtedness.
"Indenture" means this Indenture, as amended or
supplemented
from time to time.
"Indirect Participant" means a Person who holds a
beneficial
interest in a Global Note through a Participant.
9
"Initial Notes" means $650.0 million in aggregate
principal
amount of Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an
institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3)
or (7) under
the Securities Act.
"Investments" means, with respect to any Person,
all
investments by such Person in other Persons (including Affiliates)
in the forms
of direct or indirect loans (including guarantees of Indebtedness
or other
obligations), advances or capital contributions (excluding
commission, travel,
moving and similar loans or advances to officers and employees made
in the
ordinary course of business), purchases or other acquisitions for
consideration
of Indebtedness, Equity Interests or other securities, together
with all items
that are or would be classified as investments on a balance sheet
prepared in
accordance with GAAP. If the Company or any Restricted Subsidiary
of the Company
sells or otherwise disposes of any Equity Interests of any direct
or indirect
Restricted Subsidiary of the Company such that, after giving effect
to any such
sale or disposition, such Person is no longer a Subsidiary of the
Company, the
Company shall be deemed to have made an Investment on the date of
any such sale
or disposition equal to the fair market value of the Equity
Interests of such
Subsidiary not sold or disposed of in an amount determined as
provided in the
last paragraph of the covenant contained in Section 4.07.
"Legal Holiday" means a Saturday, a Sunday or a
day on which
banking institutions in The City of New York or at a place of
payment are
authorized by law, regulation or executive order to remain closed.
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.
"Lehman Investor" means Lehman Brothers Holdings
Inc. and any
of its Affiliates.
"Letter of Transmittal" means the letter of
transmittal to be
prepared by the Company and sent to all Holders of the Series A
Notes for use by
such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any
mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such
asset, 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
statutes) of any
jurisdiction).
"Marketable Securities" means, with respect to
any Asset Sale,
any readily marketable equity securities that are (i) traded on The
New York
Stock Exchange, the American Stock Exchange or the Nasdaq National
Market; and
(ii) issued by a corporation having a total equity market
capitalization of not
less than $250.0 million; provided that the excess of (A) the
aggregate amount
of securities of any one such corporation held by the Company and
any Restricted
Subsidiary over (B) ten times the average daily trading volume of
such
securities
10
during the 20 immediately preceding trading days shall be deemed
not to be
Marketable Securities; as determined on the date of the contract
relating to
such Asset Sale.
"May 2003 Indenture" means the indenture, dated
as of May 21,
2003, among The Bank of New York, as trustee, the Company and the
guarantors
party thereto, with respect to the May 2003 Notes.
"May 2003 Notes" means the $400,000,000 in
aggregate principal
amount of the Company's 6-1/8% Senior Subordinated Notes due 2013,
issued
pursuant to the May 2003 Indenture.
"Moody's" means Moody's Investors Services, Inc.
"Net Income" means, with respect to any Person,
the net income
(loss) of such Person, determined in accordance with GAAP and
before any
reduction in respect of preferred stock dividends, excluding,
however, (i) any
gain or loss, together with any related provision for taxes
thereon, realized in
connection with (A) any Asset Sale (including, without limitation,
dispositions
pursuant to sale and leaseback transactions) or (B) the disposition
of any
securities by such Person or any of its Restricted Subsidiaries or
the
extinguishment of any Indebtedness of such Person or any of its
Restricted
Subsidiaries and (ii) any extraordinary gain or loss, together with
any related
provision for taxes on such extraordinary gain or loss and (iii)
the cumulative
effect of a change in accounting principles.
"Net Proceeds" means the aggregate cash proceeds
received by
the Company or any of its Subsidiaries in respect of any Asset Sale
(including,
without limitation, any cash received upon the sale or other
disposition of any
non-cash consideration received in any Asset Sale), net of the
direct costs
relating to such Asset Sale (including, without limitation, legal,
accounting
and investment banking fees, and sales commissions) and any
relocation expenses
incurred as a result thereof, taxes paid or payable as a result
thereof (after
taking into account any available tax credits or deductions and any
tax sharing
arrangements), amounts required to be applied to the repayment of
Indebtedness
secured by a Lien on the asset or assets that were the subject of
such Asset
Sale and any reserve for adjustment in respect of the sale price of
such asset
or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to
which neither
the Company nor any of its Restricted Subsidiaries (A) provides
credit support
of any kind (including any undertaking, agreement or instrument
that would
constitute Indebtedness), (B) is directly or indirectly liable (as
a guarantor
or otherwise), or (C) constitutes the lender; and (ii) no default
with respect
to which (including any rights that the holders thereof may have to
take
enforcement action against an Unrestricted Subsidiary) would permit
(upon
notice, lapse of time or both) any holder of any other Indebtedness
(other than
Indebtedness incurred under Credit Facilities) of the Company or
any of its
Restricted Subsidiaries to declare a default on such other
Indebtedness or cause
the payment thereof to be accelerated or payable prior to its
stated maturity;
and (iii) as to which the lenders have been notified in writing
that they will
not have any recourse to the stock or assets of the Company or any
of its
Restricted Subsidiaries.
"Non-U.S. Person" means a person who is not a
U.S. Person.
11
"Note Custodian" means the Trustee, as custodian
with respect
to the Notes in global form, or any successor entity thereto.
"Notes" has the meaning assigned to it in the
preamble to this
Indenture. The Initial Notes and the Additional Notes shall be
treated as a
single class for all purposes under this Indenture, and unless the
context
otherwise requires, all references to the Notes shall include the
Initial Notes
and any Additional Notes.
"Obligations" means any principal, premium and
Additional
Interest (if any), 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.
"Offering" means the offering of the Notes by the
Company.
"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 on behalf
of the Company by two Officers of the Company, one of whom must be
the principal
executive officer, the principal financial officer, the treasurer
or the
principal accounting officer of the Company, that meets the
requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal
counsel who
is reasonably acceptable to the Trustee, that meets the
requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the
Company, any
Subsidiary of the Company or the Trustee.
"Participant" means, with respect to DTC,
Euroclear or
Clearstream, a Person who has an account with DTC, Euroclear or
Clearstream,
respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Investment" means (i) any Investment
in the Company
or in a Restricted Subsidiary of the Company that is a Guarantor;
(ii) any
Investment in cash or Cash Equivalents; (iii) any Investment by the
Company or
any Restricted Subsidiary of the Company in a Person, if as a
result of such
Investment (A) such Person becomes a Restricted Subsidiary of the
Company and a
Guarantor or (B) such Person is merged, consolidated or amalgamated
with or
into, or transfers or conveys substantially all of its assets to,
or is
liquidated into, the Company or a Restricted Subsidiary of the
Company that is a
Guarantor; (iv) any Restricted Investment made as a result of the
receipt of
non-cash consideration from an Asset Sale that was made pursuant to
and in
compliance with Section 4.10 or any disposition of assets not
constituting an
Asset sale; (v) any acquisition of assets solely in exchange for
the issuance of
Equity Interests (other than Disqualified Stock) of the Company;
(vi) advances
to employees not to exceed $2.5 million at any one time
outstanding; (vii) any
Investment acquired in connection with or as a result of a workout
or bankruptcy
of a customer or supplier; (viii) Hedging Obligations permitted
12
to be incurred under Section 4.09; (ix) any Investment in a Similar
Business
that is not a Restricted Subsidiary; provided that the aggregate
fair market
value of all Investments outstanding pursuant to this clause (ix)
(valued on the
date each such Investment was made and without giving effect to
subsequent
changes in value) may not at any one time exceed 10% of the
Consolidated
Tangible Assets of the Company; and (x) other Investments in any
Person having
an aggregate fair market value (measured on the date each such
Investment was
made and without giving effect to subsequent changes in value),
when taken
together with all other Investments made pursuant to this clause
(x) that are at
the time outstanding, not to exceed $30.0 million.
"Permitted Joint Venture" means any joint
venture, partnership
or other Person designated by the Board of Directors (until
designation by the
Board of Directors to the contrary); provided that (i) at least 25%
of the
Capital Stock thereof with voting power under ordinary
circumstances to elect
directors (or Persons having similar or corresponding powers and
responsibilities) is at the time owned (beneficially or directly)
by the Company
and/or by one or more Restricted Subsidiaries of the Company and
(ii) such joint
venture, partnership or other Person is engaged in a Similar
Business. Any such
designation or designation to the contrary shall be evidenced to
the Trustee by
promptly filing with the Trustee a copy of the resolution giving
effect to such
designation and an Officers' Certificate certifying that such
designation
complied with the foregoing provisions.
"Permitted Junior Securities" means Equity
Interests in the
Company or debt securities that are subordinated to all Senior Debt
(and any
debt securities issued in exchange for Senior Debt) to
substantially the same
extent as, or to a greater extent than, the Notes and the
Subsidiary Guarantees
are subordinated to Senior Debt pursuant to Article 11 of this
Indenture.
"Permitted Liens" means (i) Liens securing Senior
Debt of the
Company or any Guarantor that was permitted by the terms of this
Indenture to be
incurred; (ii) Liens in favor of the Company or any Guarantor;
(iii) Liens on
property of a Person existing at the time such Person is merged
into or
consolidated with the Company or any Restricted Subsidiary of the
Company;
provided that such Liens were in existence prior to the
contemplation of such
merger or consolidation and do not extend to any assets other than
those of the
Person merged into or consolidated with the Company; (iv) Liens on
property
existing at the time of acquisition thereof by the Company or any
Subsidiary of
the Company, provided that such Liens were in existence prior to
the
contemplation of such acquisition and do not extend to any other
assets of the
Company or any of its Restricted Subsidiaries; (v) Liens to secure
the
performance of statutory obligations, surety or appeal bonds,
performance bonds
or other obligations of a like nature incurred in the ordinary
course of
business; (vi) Liens to secure Indebtedness (including Capital
Lease
Obligations) permitted by clause (iv) of the second paragraph of
Section 4.09
covering only the assets acquired with such Indebtedness; (vii)
Liens existing
on the date of this Indenture; (viii) 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 shall be required in conformity with GAAP shall have been made
therefor; (ix)
Liens incurred in the ordinary course of business of the Company or
any
Restricted Subsidiary of the Company with respect to obligations
that do not
exceed $50.0 million at any one time outstanding; (x) Liens on
assets of
Guarantors to secure Senior Debt of such Guarantors that was
permitted by
13
this Indenture to be incurred; (xi) Liens securing Permitted
Refinancing
Indebtedness, provided that any such Lien does not extend to or
cover any
property, shares or debt other than the property, shares or debt
securing the
Indebtedness so refunded, refinanced or extended; (xii) Liens
incurred or
deposits made to secure the performance of tenders, bids, leases,
statutory
obligations, surety and appeal bonds, government contracts,
performance and
return of money bonds and other obligations of a like nature, in
each case
incurred in the ordinary course of business (exclusive of
obligations for the
payment of borrowed money); (xiii) Liens upon specific items of
inventory or
other goods and proceeds of any Person securing such Person's
obligations in
respect of bankers' acceptances issued or created for the account
of such Person
to facilitate the purchase, shipment or storage of such inventory
or other goods
in the ordinary course of business; (xiv) Liens encumbering
customary initial
deposits and margin deposits, and other Liens incurred in the
ordinary course of
business that are within the general parameters customary in the
industry, in
each case securing Indebtedness under Hedging Obligations; and (xv)
Liens
encumbering deposits made in the ordinary course of business to
secure
nondelinquent obligations arising from statutory or regulatory,
contractual or
warranty requirements of the Company or its Subsidiaries for which
a reserve or
other appropriate provision, if any, as shall be required by GAAP
shall have
been made.
"Permitted Refinancing Indebtedness" means any
Indebtedness of
the Company or any of its Subsidiaries issued in exchange for, or
the net
proceeds of which are used to extend, refinance, renew, replace,
defease or
refund other Indebtedness of the Company or any of its Restricted
Subsidiaries;
provided that: (i) the principal amount (or accreted value, if
applicable) of
such Permitted Refinancing Indebtedness does not exceed the
principal amount of
(or accreted value, if applicable), plus accrued interest on, the
Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded
(plus the
amount of reasonable expenses and prepayment premiums incurred in
connection
therewith); (ii) such Permitted Refinancing Indebtedness has a
final maturity
date no earlier than the final maturity date of, and has a Weighted
Average Life
to Maturity equal to or greater than the Weighted Average Life to
Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or
refunded; (iii) if the Indebtedness being extended, refinanced,
renewed,
replaced, defeased or refunded is subordinated in right of payment
to the Notes,
such Permitted Refinancing Indebtedness is subordinated in right of
payment to
the Notes on terms at least as favorable to the Holders of Notes as
those
contained in the documentation governing the Indebtedness being
extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness
is incurred either by the Company or by the Restricted Subsidiary
who is the
obligor on the Indebtedness being extended, refinanced, renewed,
replaced,
defeased or refunded.
"Permitted Securities" means, with respect to any
Asset Sale,
Voting Stock of a Person primarily engaged in one or more Similar
Businesses;
provided that after giving effect to the Asset Sale such Person
shall become a
Restricted Subsidiary and, unless the Asset Sale relates to a
Foreign
Subsidiary, a Guarantor (to the extent required by the terms of
this Indenture).
"Person" means any individual, corporation,
partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or
government or agency or political subdivision thereof (including
any subdivision
or ongoing business of any such entity or substantially all of the
assets of any
such entity, subdivision or business).
14
"Principals" means any Lehman Investor, Frank C.
Lanza and
Robert V. LaPenta.
"Private Placement Legend" means the legend set
forth in
Section 2.06(g)(i) to be placed on all Notes issued under this
Indenture except
as otherwise permitted by the provisions of this Indenture.
"Purchase Agreement" means the Purchase
Agreement, dated as of
November 1, 2004, among the Company, the Guarantors, Lehman
Brothers Inc., Banc
of America Securities LLC, Morgan Stanley & Co. Incorporated,
SG Americas
Securities, LLC and Wachovia Capital Markets, LLC, as
representatives of the
several initial purchasers named therein.
"QIB" means a "qualified institutional buyer" as
defined in
Rule 144A.
"Registration Rights Agreement" means the A/B
Exchange
Registration Rights Agreement, dated as of the date hereof, by and
among the
Company and the other parties named on the signature pages thereof,
as such
agreement may be amended, modified or supplemented from time to
time and, with
respect to any Additional Notes, one or more registration rights
agreements
between the Company and the other parties thereto, as such
agreement(s) may be
amended, modified or supplemented from time to time, relating to
rights given by
the Company to the purchasers of Additional Notes to register such
Additional
Notes under the Securities Act.
"Regulation S" means Regulation S promulgated
under the
Securities Act.
"Regulation S Global Note" means a global Note
bearing the
Private Placement Legend and deposited with and registered in the
name of the
Depositary or its nominee that will be issued in a denomination
equal to the
outstanding principal amount of the Notes sold in reliance on
Regulation S.
"Related Party" with respect to any Principal
means (i) any
controlling stockholder, 50% (or more) owned Subsidiary, or spouse
or immediate
family member (in the case of an individual) of such Principal or
(ii) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding a
more than 50%
controlling interest of which consist of such Principal and/or such
other
Persons referred to in the immediately preceding clause (i).
"Representative" means the indenture trustee or
other trustee,
agent or representative for any Senior Debt.
"Responsible Officer" when used with respect to
the Trustee,
means any officer within the Corporate Trust Administration of the
Trustee (or
any successor group of the Trustee) or any other officer of the
Trustee
customarily performing functions similar to those performed by any
of the above
designated officers and also means, with respect to a particular
corporate trust
matter, any other officer to whom such matter is referred because
of his
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive
Note bearing
the Private Placement Legend.
15
"Restricted Global Notes" means the 144A Global
Note, the IAI
Global Note and the Regulation S Global Note, each of which shall
bear the
Private Placement Legend.
"Restricted Investment" means an Investment other
than a
Permitted Investment.
"Restricted Period" means the 40-day restricted
period as
defined in Regulation S.
"Restricted Subsidiary" means, with respect to
any Person,
each Subsidiary of such Person that is not an Unrestricted
Subsidiary.
"Rule 144" means Rule 144 under the Securities
Act.
"Rule 144A" means Rule 144A under the Securities
Act.
"Rule 903" means Rule 903 under the Securities
Act.
"Rule 904" means Rule 904 under the Securities
Act.
"SEC" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of
1933, as amended.
"Senior Credit Facilities" means the Second
Amended and
Restated 364 Day Credit Agreement, dated as of May 16, 2001, as in
effect on the
date of this Indenture, among the Company, the lenders party
thereto, Bank of
America, N.A., as administrative agent, and Lehman Commercial Paper
Inc., as
syndication agent and documentation agent, and the Third Amended
and Restated
Credit Agreement, dated as of May 16, 2001, as in effect on the
date of this
Indenture among the Company, the lenders party thereto, Bank of
America, N.A.,
as administrative agent, and Lehman Commercial Paper Inc., as
syndication agent
and documentation agent, and any related notes, collateral
documents, letters of
credit and guarantees, including any appendices, exhibits or
schedules to any of
the foregoing (as the same may be in effect from time to time), in
each case, as
such agreements may be amended, modified, supplemented or restated
from time to
time, or refunded, refinanced, restructured, replaced, renewed,
repaid or
extended from time to time (whether with the original agents and
lenders or
other agents and lenders or otherwise, and whether provided under
the original
credit agreement or other credit agreements, indentures or
otherwise).
"Senior Debt" means (i) all Indebtedness of the
Company or any
of its Restricted Subsidiaries outstanding under Credit Facilities
and all
Hedging Obligations with respect thereto, (ii) any other
Indebtedness permitted
to be incurred by the Company or any of its Restricted Subsidiaries
under the
terms of the Indenture, unless the instrument under which such
Indebtedness is
incurred expressly provides that it is on a parity with or
subordinated in right
of payment to the Notes and (iii) all Obligations with respect to
the foregoing.
Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not
include (i) any liability for federal, state, local or other taxes
owed or owing
by the Company, (ii) any Indebtedness of the Company to any of its
Subsidiaries
or other Affiliates, (iii) any trade payables or (iv) any
Indebtedness that is
incurred in violation of the Indenture. The December 1998 Notes,
2002 Notes, the
May 2003
16
Notes and the December 2003 Notes shall be deemed to rank pari
passu with the
Notes and shall not constitute Senior Debt.
"Shelf Registration Statement" means the Shelf
Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary
which is a
"significant subsidiary" within the meaning of Rule 405 under the
Securities
Act.
"Similar Business" means a business, a majority
of whose
revenues in the most recently ended calendar year were derived from
(i) the sale
of defense products, electronics, communications systems, aerospace
products,
avionics products and/or communications products, (ii) any services
related
thereto, (iii) any business or activity that is reasonably similar
thereto or a
reasonable extension, development or expansion thereof or ancillary
thereto, and
(iv) any combination of any of the foregoing.
"Stated Maturity" means, with respect to any
installment of
interest or principal on any series of Indebtedness, the date on
which such
payment of interest or principal was scheduled to be paid in the
original
documentation governing such Indebtedness, and shall 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).
"S&P" means Standard and Poor's Corporation.
"TIA" means the Trust Indenture Act of 1939 (15
U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified
under TIA.
"Transaction Documents" means the Indenture, the
Notes, the
Purchase Agreement and the Registration Rights Agreement.
"Transfer Restricted Securities" means securities
that bear or
are required to bear the Private Placement Legend set forth in
Section
2.06(g)(i) hereof.
"Trustee" means the party named as such above
until a
successor replaces it in accordance with the applicable provisions
of this
Indenture and thereafter means the successor serving hereunder.
17
"Unrestricted Global Note" means one or more
Global Notes, in
the form of Exhibit A attached hereto, that do not and are not
required to bear
the Private Placement Legend and are deposited with and registered
in the name
of the Depositary or its nominee.
"Unrestricted Definitive Note" means one or more
Definitive
Notes that do not and are not required to bear the Private
Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary
that is
designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a
resolution of the Board of Directors, but only to the extent that
such
Subsidiary: (i) has no Indebtedness other than Non-Recourse Debt;
(ii) is not
party to any agreement, contract, arrangement or understanding with
the Company
or any Restricted Subsidiary of the Company unless the terms of any
such
agreement, contract, arrangement or understanding are no less
favorable to the
Company or such Restricted Subsidiary than those that might be
obtained at the
time from Persons who are not Affiliates of the Company; (iii) is a
Person with
respect to which neither the Company nor any of its Restricted
Subsidiaries has
any direct or indirect obligation (A) to subscribe for additional
Equity
Interests or (B) to maintain or preserve such Person's financial
condition or to
cause such Person to achieve any specified levels of operating
results; (iv) has
not guaranteed or otherwise directly or indirectly provided credit
support for
any Indebtedness of the Company or any of its Restricted
Subsidiaries; and (v)
has at least one director on its board of directors that is not a
director or
executive officer of the Company or any of its Restricted
Subsidiaries. Any such
designation by the Board of Directors shall be evidenced to the
Trustee by
filing with the Trustee a certified copy of a resolution of the
Board of
Directors giving effect to such designation and an Officers'
Certificate
certifying that such designation complied with the foregoing
conditions and was
permitted by Section 4.07. If, at any time, any Unrestricted
Subsidiary would
fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a
Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness
is not permitted to be incurred as of such date under Section 4.09,
the Company
shall be in default of such covenant). The Board of Directors of
the Company may
at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence
of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding
Indebtedness of such Unrestricted Subsidiary and such designation
shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09,
calculated
on a pro forma basis as if such designation had occurred at the
beginning of the
four-quarter reference period, and (ii) no Default or Event of
Default would be
in existence following such designation.
"U.S. Person" means a U.S. person as defined in
Rule 902(k)
under the Securities Act.
"Voting Stock" of any Person as of any date means
the Capital
Stock of such Person that is at the time entitled to vote in the
election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when
applied to any
Indebtedness at any date, the number of years obtained by dividing
(i) the sum
of the products obtained by multiplying (A) the amount of each then
remaining
installment, sinking fund, serial maturity or
18
other required payments of principal, including payment at final
maturity, in
respect thereof, by (B) the number of years (calculated to the
nearest
one-twelfth) that will elapse between such date and the making of
such payment,
by (ii) the then outstanding principal amount of such Indebtedness.
"Wholly Owned" means, when used with respect to
any Subsidiary
or Restricted Subsidiary of a Person, a Subsidiary (or Restricted
Subsidiary, as
appropriate) of such Person all of the outstanding Capital Stock or
other
ownership interests of which (other than directors' qualifying
shares) shall at
the time be owned by such Person or by one or more Wholly Owned
Subsidiaries (or
Wholly Owned Restricted Subsidiaries, as appropriate) of such
Person and one or
more Wholly Owned Subsidiaries (or Wholly Owned Restricted
Subsidiaries, as
appropriate) of such Person.
Section 1.02 Other Definitions.
Defined in
Term
Section
"Affiliate
Transaction".....................................4.11
"Asset Sale
Offer"..........................................3.09
"Change of Control
Offer"...................................4.15
"Change of Control
Payment".................................4.15
"Change of Control Payment
Date"............................4.15
"Covenant
Defeasance".......................................8.03
"DTC".......................................................2.03
"Event of
Default"..........................................6.01
"Excess
Proceeds"...........................................4.10
"Global Note
Legend"........................................2.06
"incur".....................................................4.09
"Legal
Defeasance"..........................................8.02
"Offer
Amount"..............................................3.09
"Offer
Period"..............................................3.09
"Paying
Agent"..............................................2.03
"Payment Blockage Notice"
.................................11.03
"Permitted Debt"
...........................................4.09
"Purchase
Date".............................................3.09
"Registrar".................................................2.03
"Restricted
Payments".......................................4.07
"Series A
Notes"........................................preamble
Section 1.03 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:
19
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a
Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the
Trustee;
"obligor" on the Notes means the Company and any
successor
obligor upon the Notes.
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 have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
in the
plural include the singular;
(5) provisions apply to successive events and
transactions;
and
(6) references to sections of or rules under the
Securities
Act shall be deemed to include substitute, replacement
of successor
sections or rules adopted by the SEC from time to
time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
The Notes and the Trustee's certificate of
authentication
shall be substantially in the form of Exhibit A hereto. The Notes
may be issued
in the form of Definitive Notes or Global Notes, as specified by
the Company.
The Notes may have notations, legends or endorsements required by
law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication.
The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes
shall
constitute, and are hereby expressly made, a part of this Indenture
and the
Company and the Trustee, by their execution and delivery of this
Indenture,
expressly agree to such terms and provisions and to be bound
thereby.
20
However, to the extent any provision of any Note conflicts with the
express
provisions of this Indenture, the provisions of this Indenture
shall govern and
be controlling.
Notes issued in global form shall be
substantially in the form
of Exhibit A attached hereto (including the Global Note Legend and
the "Schedule
of Exchanges in the Global Note" attached thereto). Notes issued in
definitive
form shall be substantially in the form of Exhibit A attached
hereto (but
without the Global Note Legend and without the "Schedule of
Exchanges of
Interests in the Global Note" attached thereto). Each Global Note
shall
represent such of the outstanding Notes as shall be specified
therein and each
shall provide that it shall represent the aggregate principal
amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate
principal amount of outstanding Notes represented thereby may from
time to time
be reduced or increased, as appropriate, to reflect exchanges and
redemptions.
Any endorsement of a Global Note to reflect the amount of any
increase or
decrease in the aggregate principal amount of outstanding Notes
represented
thereby shall be made by the Trustee or the Note Custodian, at the
direction of
the Trustee, in accordance with instructions given by the Holder
thereof as
required by Section 2.06 hereof.
The provisions of the "Operating Procedures of
the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and
the "General
Terms and Conditions of Clearstream Banking" and "Customer
Handbook" of
Clearstream shall be applicable to interests in the Regulation S
Global Notes
that are held by the Agent Members through Euroclear or
Clearstream.
Section 2.02 Execution and Authentication.
Two Officers shall sign the Notes for the Company
by manual or
facsimile signature.
If an Officer whose signature is on a Note no
longer holds
that office at the time a Note is authenticated, the Note shall
nevertheless be
valid.
A Note shall not be valid until authenticated by
the manual
signature of the Trustee. The signature shall be conclusive
evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the
Company signed
by two Officers, authenticate the Initial Notes for original issue
up to $650.0
million in aggregate principal amount and, upon receipt of an
authentication
order in accordance with this Section 2.02, at any time and from
time to time
thereafter, the Trustee shall authenticate Additional Notes and
Exchange Notes
for original issue in an aggregate principal amount specified in
such
authentication order.
The Trustee may appoint an authenticating agent
acceptable to
the Company to authenticate Notes. An authenticating agent may
authenticate
Notes 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
Holders or an
Affiliate of the Company.
21
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency
where Notes may
be presented for registration of transfer or for exchange
("Registrar") and an
office or agency where Notes may be presented for payment ("Paying
Agent"). The
Registrar shall keep a register of the Notes and of their transfer
and exchange.
The Company may appoint one or more co-registrars and one or more
additional
paying agents. The term "Registrar" includes any co-registrar and
the term
"Paying Agent" includes any additional paying agent. The Company
may change any
Paying Agent or Registrar without notice to any Holder. The Company
shall notify
the Trustee in writing of the name and address of any Agent not a
party to this
Indenture. If the Company fails to appoint or maintain another
entity as
Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository
Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act
as the
Registrar and Paying Agent and to act as Note Custodian with
respect to the
Global Notes.
Section 2.04 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 or the Trustee all money held by the Paying
Agent for the
payment of principal, premium or Additional Interest, if any, or
interest on the
Notes, 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) shall have no further liability for the money. If the
Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust
fund for the benefit of the Holders all money held by it as Paying
Agent. Upon
any bankruptcy or reorganization proceedings relating to the
Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05 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 all Holders and shall otherwise comply with TIA ss.
312(a). If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee at least
five Business 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
the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A
Global Note may
not be transferred as a whole except by the Depositary to a nominee
of
22
the Depositary, by a nominee of the Depositary to the Depositary or
to another
nominee of the Depositary, or by the Depositary or any such nominee
to a
successor Depositary or a nominee of such successor Depositary. All
Global Notes
will be exchanged by the Company for Definitive Notes if (i) the
Company
delivers to the Trustee notice from the Depositary that it is
unwilling or
unable to continue to act as Depositary or that it is no longer a
clearing
agency registered under the Exchange Act and, in either case, a
successor
Depositary is not appointed by the Company within 120 days after
the date of
such notice from the Depositary or (ii) the Company in its sole
discretion
determines that the Global Notes (in whole but not in part) should
be exchanged
for Definitive Notes and delivers a written notice to such effect
to the
Trustee. Upon the occurrence of either of the preceding events in
(i) or (ii)
above, Definitive Notes shall be issued in such names as the
Depositary shall
instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole
or in part, as provided in Sections 2.07 and 2.11 hereof. Every
Note
authenticated and made available for delivery in exchange for, or
in lieu of, a
Global Note or any portion thereof, pursuant to Section 2.07 or
2.11 hereof,
shall be authenticated and made available for delivery in the form
of, and shall
be, a Global Note. A Global Note may not be exchanged for another
Note other
than as provided in this Section 2.06(a), however beneficial
interests in a
Global Note may be transferred and exchanged as provided in Section
2.06(b), (c)
or (f) hereof.
(b) Transfer and Exchange of Beneficial
Interests in the
Global Notes. The transfer and exchange of beneficial interests in
the Global
Notes shall be effected through the Depositary, in accordance with
the
provisions of this Indenture and the procedures of the Depositary
therefor.
Beneficial interests in the Restricted Global Notes shall be
subject to
restrictions on transfer comparable to those set forth herein to
the extent
required by the Securities Act. The Trustee shall have no
obligation to
ascertain the Depositary's compliance with any such restrictions on
transfer.
Transfers of beneficial interests in the Global Notes also shall
require
compliance with either subparagraph (i) or (ii) below, as
applicable, as well as
one or more of the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the
Same Global
Note. Beneficial interests in any Restricted Global
Note may be
transferred to Persons who take delivery thereof in
the form of a
beneficial interest in the same Restricted Global Note
in
accordance with the transfer restrictions set forth in
the
Private Placement Legend; provided, however, that
prior to the
expiration of the Restricted Period transfers of
beneficial
interests in the Regulation S Global Note may not be
made to a
U.S. Person or for the account or benefit of a U.S.
Person (other
than an Initial Purchaser). Beneficial interests in
any
Unrestricted Global Note may be transferred only to
Persons who
take delivery thereof in the form of a beneficial
interest in an
Unrestricted Global Note. No written orders or
instructions shall
be required to be delivered to the Registrar to effect
the
transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial
Interests in Global Notes. In connection with all
transfers and
exchanges of beneficial interests (other than
transfers of
beneficial interests in a Global Note to Persons who
take
delivery thereof in the form of a beneficial interest
in the same
Global Note), the transferor of such beneficial
interest must
deliver to the Registrar either (A)(1) a written order
from a
Participant or an Indirect Participant given to the
Depositary in
accordance with the Applicable Procedures directing
the
Depositary to credit or cause to be credited a
23
beneficial interest in the specified Global Note in an
amount
equal to the beneficial interest to be transferred or
exchanged
and (2) instructions given in accordance with the
Applicable
Procedures containing information regarding the
Participant
account to be credited with such increase or (B)(1) a
written
order from a Participant or an Indirect Participant
given to the
Depositary in accordance with the Applicable
Procedures directing
the Depositary to cause to be issued a Definitive Note
in an
amount equal to the beneficial interest to be
transferred or
exchanged and (2) instructions given by the Depositary
to the
Registrar containing information regarding the Person
in whose
name such Definitive Note shall be registered to
effect the
transfer or exchange referred to in (1) above. Upon an
Exchange
Offer by the Company in accordance with Section
2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be
deemed to
have been satisfied upon receipt by the Registrar of
the
instructions contained in the Letter of Transmittal
delivered by
the Holder of such beneficial interests in the
Restricted Global
Notes. Upon satisfaction of all of the requirements
for transfer
or exchange of beneficial interests in Global Notes
contained in
this Indenture, the Notes and otherwise applicable
under the
Securities Act, the Trustee shall adjust the principal
amount of
the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) Transfer of Beneficial Interests to
Another Restricted
Global Note. Beneficial interests in any Restricted
Global Note may
be transferred to Persons who take delivery thereof in
the form of
a beneficial interest in another Restricted Global
Note if the
Registrar receives the following:
(A) if the transferee will take delivery
in the form
of a beneficial interest in the 144A Global Note,
then the
transferor must deliver a certificate in the form
of Exhibit
B hereto, including the certifications in item
(1) thereof;
(B) if the transferee will take delivery
in the form
of a beneficial interest in the Regulation S
Global Note,
then the transferor must deliver a certificate in
the form
of Exhibit B hereto, including the certifications
in item
(2) thereof; and
(C) if the transferee will take delivery
in the form
of a beneficial interest in the IAI Global Note,
then the
transferor must deliver (x) a certificate in the
form of
Exhibit B hereto, including the certifications in
item (3)
thereof, (y) to the extent required by item 3(d)
of Exhibit
B hereto, an Opinion of Counsel in form
reasonably
acceptable to the Company to the effect that such
transfer
is in compliance with the Securities Act and such
beneficial
interest is being transferred in compliance with
any
applicable blue sky securities laws of any State
of the
United States and (z) if the transfer is being
made to an
Institutional Accredited Investor and effected
pursuant to
an exemption from the registration requirements
of the
Securities Act other than Rule 144A under the
Securities
Act, Rule 144 under the Securities Act or Rule
904 under the
Securities Act, a certificate from the transferee
in the
form of Exhibit D hereto.
(iv) Transfer and Exchange of Beneficial
Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. Beneficial interests in any
24
Restricted Global Note may be exchanged by any holder
thereof for
a beneficial interest in the Unrestricted Global Note
or
transferred to Persons who take delivery thereof in
the form of a
beneficial interest in the Unrestricted Global Note
if:
(A) such exchange or transfer is
effected pursuant to
the Exchange Offer in accordance with the
Registration Rights
Agreement and the holder, in the case of an
exchange, or the
transferee, in the case of a transfer, is not (1)
a
broker-dealer, (2) a Person participating in the
distribution
of the Exchange Notes or (3) a Person who is an
affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected
pursuant to the
Shelf Registration Statement in accordance with
the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer
pursuant to the Exchange Offer Registration
Statement in
accordance with the Registration Rights
Agreement; or
(D ) the Registrar receives the
following:
(1) if the holder of such
beneficial interest
in a Restricted Global Note proposes to
exchange such
beneficial interest for a beneficial
interest in the
Unrestricted Global Note, a certificate
from such
holder in the form of Exhibit C hereto,
including the
certifications in item (1)(a) thereof;
(2) if the holder of such
beneficial interest
in a Restricted Global Note proposes to
transfer such
beneficial interest to a Person who shall
take delivery
thereof in the form of a beneficial
interest in the
Unrestricted Global Note, a certificate
from such
holder in the form of Exhibit B hereto,
including the
certifications in item (4) thereof;
(3) in each such case set forth in
this
subparagraph (D), an Opinion of Counsel in
form
reasonably acceptable to the Registrar to
the effect
that such exchange or transfer is in
compliance with
the Securities Act, that the restrictions
on transfer
contained herein and in the Private
Placement Legend
are not required in order to maintain
compliance with
the Securities Act, and such beneficial
interest is
being exchanged or transferred in
compliance with any
applicable blue sky securities laws of any
State of the
United States.
If any such transfer is effected pursuant to
subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet
been issued,
the Company shall issue and, upon receipt of an authentication
order in
accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more
Unrestricted Global Notes in an aggregate principal amount equal to
the
principal amount of beneficial interests transferred pursuant to
subparagraph
(B) or (D) above.
25
Beneficial interests in an Unrestricted Global
Note cannot be
exchanged for, or transferred to Persons who take delivery thereof
in the form
of, a beneficial interest in any Restricted Global Note.
(c) Transfer or Exchange of Beneficial
Interests for
Definitive Notes.
(i) If any holder of a beneficial interest in
a Restricted
Global Note proposes to exchange such beneficial
interest for a
Definitive Note or to transfer such beneficial
interest to a
Person who takes delivery thereof in the form of a
Definitive
Note, then, upon receipt by the Registrar of the
following
documentation (all of which may be submitted by
facsimile):
(A) if the holder of such beneficial
interest in a
Restricted Global Note proposes to exchange such
beneficial
interest for a Definitive Note, a certificate
from such
holder in the form of Exhibit C hereto, including
the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred
to a QIB in accordance with Rule 144A under the
Securities
Act, a certificate to the effect set forth in
Exhibit B
hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred
to a Non-U.S. Person in an offshore transaction
in
accordance with Rule 904 under the Securities
Act, a
certificate to the effect set forth in Exhibit B
hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred
pursuant to an exemption from the registration
requirements
of the Securities Act in accordance with Rule 144
under the
Securities Act, a certificate to the effect set
forth in
Exhibit B hereto, including the certifications in
item
(3)(a) thereof;
(E) if such beneficial interest is being
transferred
to an Institutional Accredited Investor in
reliance on an
exemption from the registration requirements of
the
Securities Act other than those listed in
subparagraphs (B)
through (D) above, a certificate to the effect
set forth in
Exhibit B hereto, including the certifications in
item
(3)(d) thereof, a certificate from the transferee
to the
effect set forth in Exhibit D hereof and, to the
extent
required by item 3(d) of Exhibit B, an Opinion of
Counsel
from the transferee or the transferor reasonably
acceptable
to the Company to the effect that such transfer
is in
compliance with the Securities Act and such
beneficial
interest is being transferred in compliance with
any
applicable blue sky securities laws of any State
of the
United States;
(F) if such beneficial interest is being
transferred
to the Company or any of its Subsidiaries, a
certificate to
the effect set forth in Exhibit B hereto,
including the
certifications in item (3)(b) thereof; or
26
(G) if such beneficial interest is being
transferred
pursuant to an effective registration statement
under the
Securities Act, a certificate to the effect set
forth in
Exhibit B hereto, including the certifications in
item
(3)(c) thereof, the Trustee shall cause the
aggregate
principal amount of the applicable Global Note to
be reduced
accordingly pursuant to Section 2.06(h) hereof,
and the
Company shall execute and the Trustee shall
authenticate and
deliver to the Person designated in the
instructions a
Definitive Note in the appropriate principal
amount.
Definitive Notes issued in exchange for
beneficial interests
in a Restricted Global Note pursuant to this
Section 2.06(c)
shall be registered in such names and in such
authorized
denominations as the holder shall instruct the
Registrar
through instructions from the Depositary and the
Participant
or Indirect Participant. The Trustee shall
deliver such
Definitive Notes to the Persons in whose names
such Notes
are so registered. Definitive Notes issued in
exchange for a
beneficial interest in a Restricted Global Note
pursuant to
this Section 2.06(c)(i) shall bear the Private
Placement
Legend and shall be subject to all restrictions
on transfer
contained therein.
(ii) Notwithstanding 2.06(c)(i), a holder of a
beneficial
interest in a Restricted Global Note may exchange such
beneficial
interest for an Unrestricted Definitive Note or may
transfer such
beneficial interest to a Person who takes delivery
thereof in the
form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is
effected pursuant to
the Exchange Offer in accordance with the
Registration
Rights Agreement and the holder, in the case of
an exchange,
or the transferee, in the case of a transfer, is
not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a
Person who is an
affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected
pursuant to the
Shelf Registration Statement in accordance with
the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer
pursuant to the Exchange Offer Registration
Statement in
accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such
beneficial interest
in a Restricted Global Note proposes to
exchange such
beneficial interest for a Definitive Note
that does not
bear the Private Placement Legend, a
certificate from
such holder in the form of Exhibit C
hereto, including
the certifications in item (1)(b) thereof;
(2) if the holder of such
beneficial interest
in a Restricted Global Note proposes to
transfer such
beneficial interest to a Person who shall
take delivery
thereof in the form of a Definitive Note
that does not
bear the Private Placement Legend, a
certificate from
such holder in the
27
form of Exhibit B hereto, including the
certifications
in item (4) thereof; and
(3) in each such case set forth in
this
subparagraph (D), an Opinion of Counsel in
form
reasonably acceptable to the Company, to
the effect
that such exchange or transfer is in
compliance with
the Securities Act, that the restrictions
on transfer
contained herein and in the Private
Placement Legend
are not required in order to maintain
compliance with
the Securities Act, and such beneficial
interest in a
Restricted Global Note is being exchanged
or
transferred in compliance with any
applicable blue sky
securities laws of any State of the United
States.
(iii) If any holder of a beneficial interest in
an
Unrestricted Global Note proposes to exchange such
beneficial
interest for a Definitive Note or to transfer such
beneficial
interest to a Person who takes delivery thereof in the
form of a
Definitive Note, then, upon satisfaction of the
conditions set
forth in Section 2.06(b)(ii), the Trustee shall cause
the
aggregate principal amount of the applicable Global
Note to be
reduced accordingly pursuant to Section 2.06(h)
hereof, and the
Company shall execute and the Trustee shall
authenticate and
deliver to the Person designated in the instructions a
Definitive
Note in the appropriate principal amount. Definitive
Notes issued
in exchange for a beneficial interest pursuant to this
Section
2.06(c)(iii) shall be registered in such names and in
such
authorized denominations as the holder shall instruct
the
Registrar through instructions from the Depositary and
the
Participant or Indirect Participant. The Trustee shall
deliver
such Definitive Notes to the Persons in whose names
such Notes
are so registered. Definitive Notes issued in exchange
for a
beneficial interest pursuant to this section
2.06(c)(iii) shall
not bear the Private Placement Legend. Beneficial
interests in an
Unrestricted Global Note cannot be exchanged for a
Definitive
Note bearing the Private Placement Legend or
transferred to a
Person who takes delivery thereof in the form of a
Definitive
Note bearing the Private Placement Legend.
(d) Transfer or Exchange of Definitive Notes
for
Beneficial Interests.
(i) If any Holder of Restricted Definitive
Notes
proposes to exchange such Notes for a beneficial
interest in a
Restricted Global Note or to transfer such Definitive
Notes to a
Person who takes delivery thereof in the form of a
beneficial
interest in a Restricted Global Note, then, upon
receipt by the
Registrar of the following documentation (all of which
may be
submitted by facsimile):
(A) if the Holder of such Restricted
Definitive Notes
proposes to exchange such Notes for a beneficial
interest in
a Restricted Global Note, a certificate from such
Holder in
the form of Exhibit C hereto, including the
certifications
in item (2)(b) thereof;
(B) if such Definitive Notes are being
transferred to
a QIB in accordance with Rule 144A under the
Securities Act,
a certificate to the effect set forth in Exhibit
B hereto,
including the certifications in item (1) thereof;
28
(C) if such Definitive Notes are being
transferred to
a Non-U.S. Person in an offshore transaction in
accordance
with Rule 904 under the Securities Act, a
certificate to the
effect set forth in Exhibit B hereto, including
the
certifications in item (2) thereof;
(D) if such Definitive Notes are being
transferred
pursuant to an exemption from the registration
requirements
of the Securities Act in accordance with Rule 144
under the
Securities Act, a certificate to the effect set
forth in
Exhibit B hereto, including the certifications in
item
(3)(a) thereof;
(E) if such Definitive Notes are being
transferred to
an Institutional Accredited Investor in reliance
on an
exemption from the registration requirements of
the
Securities Act other than those listed in
subparagraphs (B)
through (D) above, a certificate to the effect
set forth in
Exhibit B hereto, including the certifications in
item
(3)(d) thereof, a certificate from the transferee
to the
effect set forth in Exhibit D hereof and, to the
extent
required by item 3(d) of Exhibit B, an Opinion of
Counsel
from the transferee or the transferor reasonably
acceptable
to the Company to the effect that such transfer
is in
compliance with the Securities Act and such
Definitive Notes
are being transferred in compliance with any
applicable blue
sky securities laws of any State of the United
States;
(F) if such Definitive Notes are being
transferred to
the Company or any of its Subsidiaries, a
certificate to the
effect set forth in Exhibit B hereto, including
the
certifications in item (3)(b) thereof; or
(G) if such Definitive Notes are being
transferred
pursuant to an effective registration statement
under the
Securities Act, a certificate to the effect set
forth in
Exhibit B hereto, including the certifications in
item
(3)(c) thereof,
the Trustee shall cancel the Definitive Notes,
increase or cause
to be increased the aggregate principal amount of, in
the case of
clause (A) above, the appropriate Restricted Global
Note, in the
case of clause (B) above, the 144A Global Note, in the
case of
clause (C) above, the Regulation S Global Note, and in
all other
cases, the IAI Global Note.
(ii) A Holder of Restricted Definitive Notes
may exchange
such Notes for a beneficial interest in the
Unrestricted Global
Note or transfer such Restricted Definitive Notes to a
Person who
takes delivery thereof in the form of a beneficial
interest in
the Unrestricted Global Note only if:
(A) such exchange or transfer is
effected pursuant to
the Exchange Offer in accordance with the
Registration
Rights Agreement and the Holder, in the case of
an exchange,
or the transferee, in the case of a transfer, is
not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a
Person who is an
affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected
pursuant to the
Shelf Registration Statement in accordance with
the
Registration Rights Agreement;
29
(C) any such transfer is effected by a
Broker-Dealer
pursuant to the Exchange Offer Registration
Statement in
accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the
following:
(1) if the Holder of such
Definitive Notes
proposes to exchange such Notes for a
beneficial
interest in the Unrestricted Global Note,
a certificate
from such Holder in the form of Exhibit C
hereto,
including the certifications in item
(1)(c) thereof;
(2) if the Holder of such Definitive
Notes proposes
to transfer such Notes to a Person who
shall take
delivery thereof in the form of a
beneficial interest
in the Unrestricted Global Note, a
certificate from
such Holder in the form of Exhibit B
hereto, including
the certifications in item (4) thereof;
and
(3) in each such case set forth in this
subparagraph
(D), an Opinion of Counsel in form
reasonably
acceptable to the Company to the effect
that such
exchange or transfer is in compliance with
the
Securities Act, that the restrictions on
transfer
contained herein and in the Private
Placement Legend
are not required in order to maintain
compliance with
the Securities Act, and such Definitive
Notes are being
exchanged or transferred in compliance
with any
applicable blue sky securities laws of any
State of the
United States.
Upon satisfaction of the conditions of any of the
subparagraphs
in this Section 2.06(d)(ii), the Trustee shall cancel
the
Definitive Notes and increase or cause to be increased
the
aggregate principal amount of the Unrestricted Global
Note.
(iii) A Holder of Unrestricted Definitive Notes
may
exchange such Notes for a beneficial interest in the
Unrestricted
Global Note or transfer such Definitive Notes to a
Person who
takes delivery thereof in the form of a beneficial
interest in
the Unrestricted Global Note. Upon receipt of a
request for such
an exchange or transfer, the Trustee shall cancel the
Unrestricted Definitive Notes and increase or cause to
be
increased the aggregate principal amount of the
Unrestricted
Global Note.
If any such exchange or transfer from a
Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet
been issued,
the Company shall issue and, upon receipt of an authentication
order in
accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more
Unrestricted Global Notes in an aggregate principal amount equal to
the
principal amount of beneficial interests transferred pursuant to
subparagraphs
(ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Definitive Notes.
Upon request
by a Holder of Definitive Notes and such Holder's compliance with
the provisions
of this Section 2.06(e), the Registrar shall register the transfer
or exchange
of Definitive Notes. Prior to such registration of transfer or
exchange, the
requesting Holder shall present or surrender to the Registrar the
30
Definitive Notes duly endorsed or accompanied by a written
instruction of
transfer in form satisfactory to the Registrar duly executed by
such Holder or
by his attorney, duly authorized in writing. In addition, the
requesting Holder
shall provide any additional certifications, documents and
information, as
applicable, pursuant to the provisions of this Section 2.06(e).
(i) Restricted Definitive Notes may be
transferred to and
registered in the name of Persons who take delivery
thereof if the
Registrar receives the following:
(A) if the transfer will be made
pursuant to Rule
144A under the Securities Act, then the
transferor must
deliver a certificate in the form of Exhibit B
hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made
pursuant to
Rule 904, then the transferor must deliver a
certificate in
the form of Exhibit B hereto, including the
certifications
in item (2) thereof; and
(C) if the transfer will be made
pursuant to any
other exemption from the registration
requirements of the
Securities Act, then the transferor must deliver
(x) a
certificate in the form of Exhibit B hereto,
including the
certifications in item (3) thereof, (y) to the
extent
required by item 3(d) of Exhibit B hereto, an
Opinion of
Counsel in form reasonably acceptable to the
Company to the
effect that such transfer is in compliance with
the
Securities Act and such beneficial interest is
being
transferred in compliance with any applicable
blue sky
securities laws of any State of the United States
and (z) if
the transfer is being made to an Institutional
Accredited
Investor and effected pursuant to an exemption
from the
registration requirements of the Securities Act
other than
Rule 144A under the Securities Act, Rule 144
under the
Securities Act or Rule 904 under the Securities
Act, a
certificate from the transferee in the form of
Exhibit D
hereto.
(ii) Restricted Definitive Notes may be
exchanged by any
Holder thereof for an Unrestricted Definitive Note or
transferred
to Persons who take delivery thereof in the form of an
Unrestricted
Definitive Note if:
(A) such exchange or transfer is
effected pursuant to
the Exchange Offer in accordance with the
Registration
Rights Agreement and the holder, in the case of
an exchange,
or the transferee, in the case of a transfer, is
not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a
Person who is an
affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected
pursuant to the
Shelf Registration Statement in accordance with
the
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer
pursuant to the Exchange Offer Registration
Statement in
accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the
following:
31
(1) if the Holder of such
Restricted Definitive
Notes proposes to exchange such Notes for
an
Unrestricted Definitive Note, a
certificate from such
Holder in the form of Exhibit C hereto,
including the
certifications in item (1)(a) thereof;
(2) if the Holder of such
Restricted Definitive
Notes proposes to transfer such Notes to a
Person who
shall take delivery thereof in the form of
an
Unrestricted Definitive Note, a
certificate from such
Holder in the form of Exhibit B hereto,
including the
certifications in item (4) thereof; and
(3) in each such case set forth in
this
subparagraph (D), an Opinion of Counsel in
form
reasonably acceptable to the Company to
the effect that
such exchange or transfer is in compliance
with the
Securities Act, that the restrictions on
transfer
contained herein and in the Private
Placement Legend
are not required in order to maintain
compliance with
the Securities Act, and such Restricted
Definitive Note
is being exchanged or transferred in
compliance with
any applicable blue sky securities laws of
any State of
the United States.
(iii) A Holder of Unrestricted Definitive Notes
may
transfer such Notes to a Person who takes delivery
thereof in the
form of an Unrestricted Definitive Note. Upon receipt
of a
request for such a transfer, the Registrar shall
register the
Unrestricted Definitive Notes pursuant to the
instructions from
the Holder thereof. Unrestricted Definitive Notes
cannot be
exchanged for or transferred to Persons who take
delivery thereof
in the form of a Restricted Definitive Note.
(f) Exchange Offer. Upon the occurrence of the
Exchange
Offer in accordance with the Registration Rights Agreement, the
Company shall
issue and, upon receipt of an authentication order in accordance
with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted
Global Notes
in an aggregate principal amount equal to the principal amount of
the beneficial
interests in the Restricted Global Notes tendered for acceptance by
persons that
are not (x) broker-dealers, (y) Persons participating in the
distribution of the
Exchange Notes or (z) Persons who are affiliates (as defined in
Rule 144) of the
Company and accepted for exchange in the exchange Offer and (ii)
Definitive
Notes in an aggregate principal amount equal to the principal
amount of the
Restricted Definitive Notes accepted for exchange in the Exchange
Offer.
Concurrent with the issuance of such Notes, the Trustee shall cause
the
aggregate principal amount of the applicable Restricted Global
Notes to be
reduced accordingly, and the Company shall execute and the Trustee
shall
authenticate and make available for delivery to the Persons
designated by the
Holders of Definitive Notes so accepted Definitive Notes in the
appropriate
principal amount.
(g) Legends. The following legends shall
appear on the face
of all Global Notes and Definitive Notes issued under this
Indenture unless
specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
32
(A) Except as permitted by subparagraph
(B) below,
each Global Note and each Definitive Note (and
all Notes
issued in exchange therefor or substitution
thereof) shall
bear the legend in substantially the following
form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY
WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED
(THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER
OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR
THE
BENEFIT OF L-3 COMMUNICATIONS CORPORATION THAT (A)
SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(a) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED
UPON AN OPINION OF COUNSEL IF L-3 COMMUNICATIONS
CORPORATION SO
REQUESTS), (2) TO L-3 COMMUNICATIONS CORPORATION OR
(3) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any
Global Note or
Definitive Note issued pursuant to subparagraphs
(b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or
(f) to this Section 2.06 (and all Notes issued in
exchange
therefor or substitution thereof) shall not bear
the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall
bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
33
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE,
(II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN
CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global
Notes. At such
time as all beneficial interests in a particular Global Note have
been exchanged
for Definitive Notes or a particular Global Note has been redeemed,
repurchased
or canceled in whole and not in part, each such Global Note shall
be returned to
or retained and canceled by the Trustee in accordance with Section
2.11 hereof.
At any time prior to such cancellation, if any beneficial interest
in a Global
Note is exchanged for or transferred to a Person who will take
delivery thereof
in the form of a beneficial interest in another Global Note or for
Definitive
Notes, the principal amount of Notes represented by such Global
Note shall be
reduced accordingly and an endorsement shall be made on such Global
Note, by the
Trustee or by the Depositary at the direction of the Trustee, to
reflect such
reduction; and if the beneficial interest is being exchanged for or
transferred
to a Person who will take delivery thereof in the form of a
beneficial interest
in another Global Note, such other Global Note shall be increased
accordingly
and an endorsement shall be made on such Global Note, by the
Trustee or by the
Depositary at the direction of the Trustee, to reflect such
increase.
(i) General Provisions Relating to Transfers
and Exchanges.
(i) To permit registrations of transfers and
exchanges, the
Company shall execute and the Trustee shall
authenticate Global
Notes and Definitive Notes upon the Company's order or
at the
Registrar's request.
(ii) No service charge shall be made to a
holder of a
beneficial interest in a Global Note or to a Holder of
a Definitive
Note for any registration of transfer or exchange, 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 taxes or similar
governmental charge
payable upon exchange or transfer pursuant to Sections
2.10, 3.06,
4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to
register the
transfer of or exchange any Note selected for
redemption in whole
or in part, except the unredeemed portion of any Note
being
redeemed in part.
(iv) All Global Notes and Definitive Notes
issued upon any
registration of transfer or exchange of Global Notes
or Definitive
Notes shall be the valid obligations of the Company,
evidencing the
same debt, and entitled to the same benefits under
this Indenture,
as the Global Notes or Definitive Notes surrendered
upon such
registration of transfer or exchange.
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(v) The Company shall not be required (A) to
issue, to
register the transfer of or to exchange Notes during a
period
beginning at the opening of business 15 days before
the day of any
selection of Notes for redemption under Section 3.02
hereof and
ending at the close of business on the day of
selection, (B) to
register the transfer of or to exchange any Note so
selected for
redemption in whole or in part, except the unredeemed
portion of
any Note being redeemed in part or (C) to register the
transfer of
or to exchange a Note between a record date and the
next succeeding
interest payment date.
(vi) Prior to due presentment for the
registration of a
transfer of any Note, the Trustee, any Agent and the
Company may
deem and treat the Person in whose name any Note is
registered as
the absolute owner of such Note for the purpose of
receiving
payment of principal of and interest on such Notes and
for all
other purposes, and none of the Trustee, any Agent or
the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global
Notes and
Definitive Notes in accordance with the provisions of
Section 2.02
hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the
Trustee, or the
Company and the Trustee receives evidence to its satisfaction of
the
destruction, loss or theft of any Note, the Company shall issue and
the Trustee,
upon the written order of the Company signed by two Officers of the
Company,
shall authenticate a replacement Note if the Trustee's requirements
are met. If
required by the Trustee or the Company, an indemnity bond must be
supplied by
the Holder that is sufficient in the judgment of the Trustee and
the Company to
protect the Company, the Trustee, any Agent and any authenticating
agent from
any loss that any of them may suffer if a Note is replaced. The
Company may
charge for its expenses in replacing a Note.
Every replacement Note is an additional
obligation of the
Company and shall be entitled to all of the benefits of this
Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the
Notes
authenticated by the Trustee except for those canceled by it, those
delivered to
it for cancellation, those reductions in the interest in a Global
Note effected
by the Trustee in accordance with the provisions hereof, and those
described in
this Section as not outstanding. Except as set forth in Section
2.09 hereof, a
Note does not cease to be outstanding because the Company or an
Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07
hereof, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered
paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to
accrue.
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If the Paying Agent (other than the Company, a
Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or
maturity date, money
sufficient to pay Notes payable on that date, then on and after
that date such
Notes shall be deemed to be no longer outstanding and shall cease
to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the
required principal
amount of Notes have concurred in any direction, waiver or consent,
Notes owned
by the Company, or by any Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with the
Company, shall
be considered as though not outstanding, except that for the
purposes of
determining whether the Trustee shall be protected in relying on
any such
direction, waiver or consent, only Notes that a Trustee knows are
so owned shall
be so disregarded.
Section 2.10 Temporary Notes.
Until Definitive Notes are ready for delivery,
the Company may
prepare and the Trustee shall authenticate temporary Notes upon a
written order
of the Company signed by two Officers of the Company. Temporary
Notes shall be
substantially in the form of Definitive Notes but may have
variations that the
Company considers appropriate for temporary Notes and as shall be
reasonably
acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare
and the Trustee shall authenticate Definitive Notes in exchange for
temporary
Notes.
Holders of temporary Notes shall be entitled to
all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the
Trustee for
cancellation. The Registrar and Paying Agent shall forward to the
Trustee any
Notes surrendered to them for registration of transfer, exchange or
payment. The
Trustee and no one else shall cancel all Notes surrendered for
registration of
transfer, exchange, payment, replacement or cancellation and shall
destroy
canceled Notes (subject to the record retention requirement of the
Exchange
Act). Certification of the destruction of all canceled Notes shall
be delivered
to the Company. The Company may not issue new Notes to replace
Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest
on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to
the extent
lawful, interest payable on the defaulted interest, to the Persons
who are
Holders on a subsequent special record date, in each case at the
rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify
the Trustee in
writing of the amount of defaulted interest proposed to be paid on
each Note and
the date of the proposed payment. The Company shall fix or cause to
be fixed
each such special record date and payment date, provided that no
such special
record date shall be less than 10 days prior to the related payment
date for
such defaulted interest. At least 15 days before the special record
date, the
Company (or, upon the written request of the Company, the Trustee
in
36
the name and at the expense of the Company) shall mail or cause to
be mailed to
Holders a notice that states the special record date, the related
payment date
and the amount of such interest to be paid.
Section 2.13 CUSIP Numbers.
The Company in issuing the Notes 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 Notes or as contained in any notice of a
redemption and
that reliance may be placed only on the other identification
numbers printed on
the Notes, and any such redemption shall not be affected by any
defect in or
omission of such numbers. The Company will promptly notify the
Trustee of any
change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to
the optional
redemption provisions of Section 3.07 hereof, it shall furnish to
the Trustee,
at least 30 days but not more than 60 days before a redemption
date, an
Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii)
the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed
at any time,
selection of Notes for redemption shall be made by the Trustee in
compliance
with the requirements of the principal national securities
exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on
a pro rata
basis, by lot or by such method as the Trustee shall deem fair and
appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part.
Notices of
redemption shall be mailed by first class mail at least 30 but not
more than 60
days before the redemption date to each Holder of Notes to be
redeemed at its
registered address. Notices of redemption may not be conditional.
If any Note is
to be redeemed in part only, the notice of redemption that relates
to such Note
shall state the portion of the principal amount thereof to be
redeemed. A new
Note in principal amount equal to the unredeemed portion thereof
shall be issued
in the name of the Holder thereof upon cancellation of the original
Note. Notes
called for redemption become due on the date fixed for redemption.
On and after
the redemption date, interest ceases to accrue on Notes or portions
of them
called for redemption.
The Trustee shall promptly notify the Company in
writing of
the Notes selected for redemption and, in the case of any Note
selected for
partial redemption, the principal amount thereof to be redeemed.
Notes and
portions of Notes selected shall be in amounts of $1,000 or whole
multiples of
$1,000; except that if all of the Notes of a Holder are to be
redeemed, the
entire outstanding amount of Notes held by such Holder, even if not
a multiple
of $1,000, shall be redeemed. Except as provided in the preceding
sentence,
provisions of this Indenture that apply to Notes called for
redemption also
apply to portions of Notes called for redemption.
37
Section 3.03 Notice Of Redemption.
Subject to the provisions of Section 3.09 hereof,
at least 30
days but not more than 60 days before a redemption date, the
Company shall mail
or cause to be mailed, by first class mail, a notice of redemption
to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be
redeemed (including
CUSIP Numbers, if any) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the
portion of
the principal amount of such Note to be redeemed and
that, after
the redemption date upon surrender of such Note, a new
Note or
Notes in principal amount equal to the unredeemed
portion shall
be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in
making such
redemption payment, interest on Notes called for
redemption ceases
to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section
of this
Indenture pursuant to which the Notes called for
redemption are
being redeemed; and
(h) that no representation is made as to the
correctness or
accuracy of the CUSIP number, if any, listed in such
notice or
printed on the Notes.
At the Company's request, the Trustee shall give
the notice of
redemption in the Company's name and at its expense; provided,
however, that the
Company shall have delivered to the Trustee, at least 45 days prior
to the
redemption date, an Officers' Certificate requesting that the
Trustee give such
notice and setting forth the information to be stated in such
notice as provided
in the preceding paragraph.
Section 3.04 Effect Of Notice Of Redemption.
Once notice of redemption is mailed in accordance
with Section
3.03 hereof, Notes called for redemption become irrevocably due and
payable on
the redemption date at the redemption price. A notice of redemption
may not be
conditional.
38
Section 3.05 Deposit Of Redemption Price.
Prior to 11:00 a.m. on the Business Day prior to
the
redemption date, the Company shall deposit with the Trustee or with
the Paying
Agent money sufficient to pay the redemption price of and accrued
interest on
all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall
promptly return to the Company any money deposited with the Trustee
or the
Paying Agent by the Company in excess of the amounts necessary to
pay the
redemption price of, and accrued interest on, all Notes to be
redeemed.
If the Company complies with the provisions of
the preceding
paragraph, on and after the redemption date, interest shall cease
to accrue on
the Notes or the portions of Notes called for redemption. If a Note
is redeemed
on or after an interest record date but on or prior to the related
interest
payment date, then any accrued and unpaid interest shall be paid to
the Person
in whose name such Note was registered at the close of business on
such record
date. If any Note called for redemption shall not be so paid upon
surrender for
redemption because of the failure of the Company to comply with the
preceding
paragraph, interest shall be paid on the unpaid principal, from the
redemption
date until such principal is paid, and to the extent lawful on any
interest not
paid on such unpaid principal, in each case at the rate provided in
the Notes
and in Section 4.01 hereof.
Section 3.06 Notes Redeemed In Part.
Upon surrender of a Note that is redeemed in
part, the Company
shall issue and, upon the Company's written request, the Trustee
shall
authenticate for the Holder at the expense of the Company a new
Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07 Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.7, the
Notes shall not
be redeemable at the Company's option prior to January 15, 2010.
Thereafter, the
Notes shall be subject to redemption at any time at the option of
the Company,
in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the
redemption prices (expressed as percentages of principal amount)
set forth below
plus accrued and unpaid interest and Additional Interest thereon,
if any, to the
applicable redemption date, if redeemed during the twelve-month
period beginning
on January 15 of the years indicated below:
Year
Percentage
2010...............................
102.938%
2011...............................
101.958%
2012...............................
100.979%
2013 and thereafter................
100.000%
(b) Notwithstanding the foregoing clause (a),
before
January 15, 2008, the Company may on any one or more occasions
redeem up to an
aggregate of 35% of the Notes originally issued at a redemption
price of
105.875% of the principal amount thereof, plus accrued and unpaid
interest and
Additional Interest thereon, if any, to the redemption date, with
the net
39
cash proceeds of one or more Equity Offerings by the Company or the
net cash
proceeds of one or more Equity Offerings by Holdings that are
contributed to the
Company as common equity capital; provided that at least 65% of the
Notes
originally issued remain outstanding immediately after the
occurrence of each
such redemption; and provided, further, that any such redemption
must occur
within 120 days of the date of the closing of such Equity Offering.
Section 3.08 Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15,
the Company
is not required to make mandatory redemption or sinking fund
payments with
respect to the Notes.
Section 3.09 Offer To Purchase By Application Of Excess
Proceeds.
In the event that, pursuant to Section 4.10
hereof, the
Company shall be required to commence an offer to all Holders to
purchase Notes
(an "Asset Sale Offer"), it shall follow the procedures specified
below.
The Asse
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