Exhibit A-1
to Credit Agreement
FORM OF TRANCHE A TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT
PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$_________ New York, New York
April 30, 1997
FOR VALUE RECEIVED, the undersigned, L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of _____________ (the "Lender") at the office of Bank of America NT &
SA ("BOA"), as administrative agent (in such capacity, the "Administrative
Agent"), located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date the principal amount of (a) _____________ DOLLARS
($________), or, if less, (b) the aggregate unpaid principal amount of all
Tranche A Term Loans made by the Lender to the Borrower pursuant to subsection
2.1 of the Credit Agreement, as hereinafter defined. The Borrower further agrees
to pay interest in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the dates specified in
subsections 2.7 and 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type, and amount of each
Tranche A Term Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to Mother Type and, in the
case of Eurodollar Loans, the length of each interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Tranche A
Term Loan.
This Note (a) is one of the Tranche A Term Notes referred to in the Credit
Agreement, dated as of April 30, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto, Xxxxxx Commercial Paper Inc. ("LCPI") as Arranger, Syndication Agent
and Documentation Agent, and the Administrative Agent (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Credit Documents. Reference is hereby
made to the Credit Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and
2
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
3
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By:________________________________
Name:
Title:
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
-------------------------------------------------------------------------------------------
Amount of Amount of Base Unpaid
Amount of Amount Principal of Rate Loans Principal
Base Rate Converted to Base Rate Converted to Balance of Notation
Date Loans Base Rate Loans Loans Repaid Eurodollar Loans Base Rate Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
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===========================================================================================
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of
Interest Amount of Eurodollar Unpaid
Amount Period and Principal of Loans Principal
Amount of Converted to Eurodollar Eurodollar Converted Balance of
Eurodollar Eurodollar Rate with Loans to Base Eurodollar Notation
Date Loans Loans Respect Thereto Repaid Rate Loans Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Exhibit A-2
to Credit Agreement
FORM OF TRANCHE B TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$_________________ New York, New York
April 30, 1997
FOR VALUE RECEIVED, the undersigned, L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of ____________ (the "Lender") at the office of Bank of America NT &
SA ("BOA"), as administrative agent (in such capacity, the "Administrative
Agent"), located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date the principal amount of (a) _____________ DOLLARS
($_____), or, if less, (b) the aggregate unpaid principal amount of all Tranche
B Term Loans made by the Lender to the Borrower pursuant to subsection 2.1 of
the Credit Agreement, as hereinafter defined. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in subsections
2.7 and 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type, and amount of each
Tranche B Term Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Tranche B
Term Loan.
This Note (a) is one of the Tranche B Term Notes referred to in the Credit
Agreement, dated as of April 30, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto, Xxxxxx Commercial Paper Inc. ("LCPI") as Arranger, Syndication Agent
and Documentation Agent, and the Administrative Agent (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Credit Documents. Reference is hereby
made to the Credit Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and
2
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
3
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By: ___________________________________
Name:
Title:
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
-------------------------------------------------------------------------------------------
Amount of Amount of Base Unpaid
Amount of Amount Principal of Rate Loans Principal
Base Rate Converted to Base Rate Converted to Balance of Notation
Date Loans Base Rate Loans Loans Repaid Eurodollar Loans Base Rate Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of
Interest Amount of Eurodollar Unpaid
Amount Period and Principal of Loans Principal
Amount of Converted to Eurodollar Eurodollar Converted Balance of
Eurodollar Eurodollar Rate with Loans to Base Eurodollar Notation
Date Loans Loans Respect Thereto Repaid Rate Loans Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Exhibit A-3
to Credit Agreement
FORM OF TRANCHE C TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
April 30, 1997
FOR VALUE RECEIVED, the undersigned, L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of ___________ (the "Lender") at the office of Bank of America NT & SA
("BOA"), as administrative agent (in such capacity, the "Administrative Agent"),
located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in lawful money
of the United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) _____________ DOLLARS ($_______),
or, if less, (b) the aggregate unpaid principal amount of all Tranche C Term
Loans made by the Lender to the Borrower pursuant to subsection 2.1 of the
Credit Agreement, as hereinafter defined. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in subsections
2.7 and 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date. Type, and amount of each
Tranche C Term Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Tranche C
Term Loan.
This Note (a) is one of the Tranche C Term Notes referred to in the Credit
Agreement, dated as of April 30, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto, Xxxxxx Commercial Paper Inc. ("LCPI") as Arranger, Syndication Agent
and Documentation Agent, and the Administrative Agent (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Credit Documents. Reference is hereby
made to the Credit Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and
2
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
3
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By: __________________________
Name:
Title:
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
-------------------------------------------------------------------------------------------
Amount of Amount of Base Unpaid
Amount of Amount Principal of Rate Loans Principal
Base Rate Converted to Base Rate Converted to Balance of Notation
Date Loans Base Rate Loans Loans Repaid Eurodollar Loans Base Rate Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of
Interest Amount of Eurodollar Unpaid
Amount Period and Principal of Loans Principal
Amount of Converted to Eurodollar Eurodollar Converted Balance of
Eurodollar Eurodollar Rate with Loans to Base Eurodollar Notation
Date Loans Loans Respect Thereto Repaid Rate Loans Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Exhibit A-4
to Credit Agreement
FORM OF REVOLVING CREDIT NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
____________ __, ____
FOR VALUE RECEIVED, the undersigned, L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of __________ (the "Lender") at the office of Bank of America NT & SA
("BOA"), as administrative agent (an such capacity, the "Administrative Agent"),
located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in lawful money
of the United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) _____________ DOLLARS ($_______),
or, if less, (b) the aggregate unpaid principal amount of all Revolving Credit
Loans made by the Lender to the Borrower pursuant to subsection 2.1 of the
Credit Agreement, as hereinafter defined. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in subsections
2.7 and 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type, and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement, dated as of April 30, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto, Xxxxxx Commercial Paper Inc. ("LCPI") as Arranger,
Syndication Agent and Documentation Agent, and the Administrative Agent (b) is
subject to the provisions of the Credit Agreement and (c) is subject to optional
and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Credit
Documents. Reference is hereby made to the Credit Documents for a description of
the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and
2
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
3
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By: _____________________________
Name:
Title:
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
-------------------------------------------------------------------------------------------
Amount of Amount of Base Unpaid
Amount of Amount Principal of Rate Loans Principal
Base Rate Converted to Base Rate Converted to Balance of Notation
Date Loans Base Rate Loans Loans Repaid Eurodollar Loans Base Rate Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of
Interest Amount of Eurodollar Unpaid
Amount Period and Principal of Loans Principal
Amount of Converted to Eurodollar Eurodollar Converted Balance of
Eurodollar Eurodollar Rate with Loans to Base Eurodollar Notation
Date Loans Loans Respect Thereto Repaid Rate Loans Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Exhibit A-5
to Credit Agreement
FORM OF SWING LINE NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE MUST BE
RECORDED N THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$______________ New York, New York
____________ __, ____
FOR VALUE RECEIVED, the undersigned, L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of ____________ (the "Lender") at the office of Bank of America NT &
SA ("BOA"), as administrative agent (in such capacity, the "Administrative
Agent"), located at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, 00000, in
lawful money of the United States of America and in immediately available funds,
on the Termination Date the principal amount of (a) _____________ DOLLARS
($__________), or, if less, (b) the aggregate unpaid principal amount of all
Swing Line Loans made by the Lender to the Borrower pursuant to subsection 2.1
of the Credit Agreement, as hereinafter defined. The Borrower further agrees to
pay interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates and on the dates specified in
subsections 2.7 and 2.9 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date. Type, and amount of each Swing
Line Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto. Each
such endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement shall not affect
the obligations of the Borrower in respect of such Swing Line Loan.
This Note (a) is one of the Swing Line Notes referred to in the Credit
Agreement, dated as of April 30, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto, Xxxxxx Commercial Paper Inc. ("LCPI") as Arranger, Syndication Agent
and Documentation Agent, and the Administrative Agent (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Credit Documents. Reference is hereby
made to the Credit Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and
2
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
3
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
L-3 COMMUNICATIONS CORPORATION
By: _____________________________
Name:
Title:
Schedule A
to Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
-------------------------------------------------------------------------------------------
Amount of Amount of Base Unpaid
Amount of Amount Principal of Rate Loans Principal
Base Rate Converted to Base Rate Converted to Balance of Notation
Date Loans Base Rate Loans Loans Repaid Eurodollar Loans Base Rate Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
Schedule B
to Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of
Interest Amount of Eurodollar Unpaid
Amount Period and Principal of Loans Principal
Amount of Converted to Eurodollar Eurodollar Converted Balance of
Eurodollar Eurodollar Rate with Loans to Base Eurodollar Notation
Date Loans Loans Respect Thereto Repaid Rate Loans Loans Made By
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
===========================================================================================
EXHIBIT B-1
TO
CREDIT AGREEMENT
===================================================
PARENT GUARANTEE AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINGS, INC.
in favor of
BANK OF AMERICA NT & SA,
AS ADMINISTRATIVE AGENT
Dated as of April 30, 1997
===================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS .................................................. 1
1.1 Definitions .................................................... 1
1.2 Other Definitional Provisions .................................. 2
SECTION 2. GUARANTEE ...................................................... 2
2.1 Guarantee ...................................................... 2
2.2 No Subrogation ................................................. 3
2.3 Amendments, etc. with respect to the Guaranteed Obligations .... 4
2.4 Guarantee Absolute and Unconditional ........................... 4
2.5 Reinstatement .................................................. 5
2.6 Payments ....................................................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES ................................. 5
3.1 Representations in Credit Agreement ............................ 5
SECTION 4. COVENANTS ...................................................... 5
4.1 Covenants in Credit Agreement .................................. 5
4.2 Issuance of Indebtedness ....................................... 5
4.3 Investments .................................................... 6
4.4 Activity ....................................................... 6
4.5 Distributions .................................................. 6
4.6 Reports ........................................................ 6
4.7 Certificates; Other Information ................................ 6
4.8 Payment of Obligations ......................................... 6
4.9 Inspection of Property, Books and Records; Discussions ......... 6
4.10 Notices ........................................................ 7
4.11 Further Assurance .............................................. 7
4.12 Additional Collateral .......................................... 7
4.13 Foreign Jurisdictions .......................................... 8
4.14 Maintenance of Collateral; Alterations ......................... 8
SECTION 5. MISCELLANEOUS .................................................. 8
5.1 Amendments in Writing .......................................... 8
5.2 Notices ........................................................ 8
5.3 No Waiver by Course of Conduct; Cumulative Remedies ............ 8
5.4 Enforcement Expenses; Indemnification .......................... 8
5.5 Successors and Assigns ......................................... 9
5.6 Counterparts ................................................... 9
5.7 Severability ................................................... 9
5.8 Section Headings ............................................... 9
5.9 Integration .................................................... 9
5.10 GOVERNING LAW .................................................. 9
5.11 SUBMISSION TO JURISDICTION; WAIVERS ............................ 9
5.12 Acknowledgements ............................................... 10
5.13 WAIVER OF JURY TRIAL ........................................... 10
5.14 Releases ....................................................... 11
FORM OF
PARENT GUARANTEE AGREEMENT
PARENT GUARANTEE AGREEMENT dated as of April 30, 1997, made by L-3
Communications Holdings, Inc., a Delaware corporation ("Holdings"), in favor of
Bank of America NT & SA as Administrative Agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions
(collectively, the "Lenders") from time to time parties to the Credit Agreement,
dated as of April 30, 1997 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among L-3 Communications
Corporation, a Delaware corporation (the "Borrower"), the Lenders, Xxxxxx
Commercial Paper Inc. ("LCPI"), as documentation agent (in such capacity, the
"Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Syndication Agent" and together with the Documentation Agent and Administrative
Agent, the "Agents"), LCPI as arranger (in such capacity, the "Arranger"), and
the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to or for the benefit of the
Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Borrower is a wholly-owned subsidiary of Holdings, and
Holdings will derive substantial direct and indirect benefit from the
making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the
benefit of the Borrower under the Credit Agreement that Holdings shall
have executed and delivered this Agreement to the Administrative Agent for
the ratable benefit of the Lenders and the Agents;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Agents and the Lenders to enter into
the Credit Agreement, and to induce the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Holdings
hereby agrees with the Administrative Agent, for the ratable benefit of the
Lenders and the Agents, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
1.1(a) Unless otherwise defined herein, terms defined in thc Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
1.1(b) The following terms shall have the following meanings:
"Agreement": this Parent Guarantee Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"Guaranteed Obligations": has the meaning set forth in Section
2.1(a) hereof.
"Obligations": has the meaning set forth in the Security Documents.
"Parent Distributions": the collective reference to any of the
following, whether direct or indirect: (i) the declaration or payment of any
dividend or other distribution on or in respect of any shares of any class of
any Capital Stock of Holdings, now or hereafter outstanding. (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
retirement for value of any such shares of Capital Stock of Holdings, now or
hereafter outstanding. (iii) any other payment by Holdings to the holder of any
shares of any class of the Capital Stock of Holdings in their capacity as such
and (iv) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
Capital Stock of Holdings now or hereafter outstanding; provided, however, that
the term "Parent Distribution" shall not include payments of salaries or bonuses
to employees of Holdings in their capacities as such.
"Permitted Parent Distributions": (a) the issuance by Holdings of
options or other equity securities of Holdings to outside directors, members of
management or employees of Holdings in the ordinary course of business, (b) cash
payments made in lieu of issuing fractional shares of Holdings' common stock or
preferred stock, in an aggregate amount not to exceed $50,000 subsequent to the
date hereof, (c) cash payments to repurchase Capital Stock of Holdings solely
with the proceeds of dividends received from the Borrower pursuant to clause (C)
of the definition of Permitted Stock Payments in the Credit Agreement; provided,
however, that such payments do not exceed $5,000,000, (d) the issuance of
pay-in-kind junior subordinated notes (which shall not require cash payments in
respect of principal, interest or otherwise prior to the first anniversary of
the Final Maturity Date), which are reasonably satisfactory in form and
substance to the Agents, issued pursuant to Section 4.3 of the Subscription
Agreements in connection with the exercise of the rights of the Purchasers (as
defined therein) thereunder of other rights under Section 4.2 thereof and (e)
the application of up to $2,000,000 of the proceeds of the sale of common stock
of Holdings to management of Holdings or the Borrower, to the repurchase of
common stock of Holdings; provided that (i) no more than $325,000 of such
proceeds shall be applied to the repurchase of common stock of Holdings from
each of Messrs. Xxxxx and XxXxxxx and (ii) the remainder of such proceeds shall
be applied solely to the repurchase of common stock of Holdings from the Seller.
"Subscription Agreements": (a) that certain common stock agreement
dated April 30, 1997, by and between Xxxxx X. Xxxxx and Holdings and (b) that
certain common stock agreement dated April 30, 1997, by and between Xxxxxx X.
XxXxxxx and Holdings, in each case, as in effect on the date hereof.
1.2 Other Definitional Provisions.
1.2(a) The words "hereof," "herein", "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section and Schedule references are to this Agreement unless otherwise
specified.
1.2(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2
SECTION 2. GUARANTEE
2.1 Guarantee.
2.1(a) Holdings hereby unconditionally and irrevocably guarantees to
the Administrative Agent, for the ratable benefit of the Lenders and the Agents
and their respective successors, indorsees, transferees and assigns, the prompt
and complete payment and performance by each of the other Credit Parties when
due (whether at the stated maturity, by acceleration or otherwise) of such other
Credit Party's Obligations (collectively, the "Guaranteed Obligations"). The
liability of Holdings hereunder shall be joint and several with the Obligations
of the other Guarantors.
2.1(b) Anything herein or in any other Credit Document to the
contrary notwithstanding, the maximum liability of Holdings hereunder and under
the other Credit Documents shall in no event exceed the maximum amount which can
be guaranteed by Holdings under applicable federal and state laws relating to
the insolvency of debtors without rending Holdings insolvent.
2.1(c) Holdings agrees that the Guaranteed Obligations may at any
time and from time to time exceed the amount of the liability of Holdings
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent, on behalf of the
other Agents and the Lenders, hereunder.
2.1(d) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Guaranteed Obligations and the obligations
of Holdings under this Agreement shall have been satisfied by payment in full,
no Letter of Credit shall be outstanding and the Commitments shall be terminated
(notwithstanding that from time to time during the term of the Credit Agreement,
no Loans or Letters of Credit may be outstanding).
2.1(e) No indefeasible payment made by any Credit Party or any other
Person or received or collected by any of the Agents or the Lenders by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to release the liability of Holdings hereunder, and
Holdings shall, notwithstanding any such payment (other than any payment made by
Holdings in respect of the Guaranteed Obligations or any payment received or
collected from Holdings in respect of the Guaranteed Obligations), remain liable
for the Guaranteed Obligations up to the maximum liability of Holdings hereunder
until the Guaranteed Obligations are paid in full, no Loan or Letter of Credit
shall be outstanding and the Commitments are terminated.
2.2 No Subrogation. Notwithstanding any payment made by Holdings
hereunder or any set-off or application of funds of Holdings by any of the
Agents or Lenders, Holdings not shall be entitled to be subrogated to any of the
rights of any of the Agents or Lenders against the other Credit Parties or any
collateral security or guarantee or right of offset held by any of the Agents or
Lenders for the payment of all or any portion of the Guaranteed Obligations, nor
shall Holdings seek or be entitled to seek any contribution or reimbursement
from any of the other Credit Parties in respect of payments made by Holdings
hereunder, until all amounts owing to the Agents and the Lenders by the other
Credit Parties on account of the Guaranteed Obligations are paid in full, no
Letter of Credit shall be outstanding and the Commitments are terminated. If any
amount shall be paid to Holdings on account of such
3
subrogation rights at any time when all of the Guaranteed Obligations shall not
have been paid in full, such amount shall be held by Holdings in trust for the
Agents and the Lenders, segregated from other funds of Holdings. and shall,
forthwith upon receipt by Holdings, be turned over to the Administrative Agent
in the exact form received by Holdings (duly indorsed by Holdings to the
Administrative Agent, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as the Required Lenders
may determine.
2.3 Amendments, etc. with respect to the Guaranteed Obligations.
Holdings shall remain obligated hereunder notwithstanding that, without any
reservation of rights against Holdings and without notice to or further assent
by Holdings, any demand for payment of any of the Guaranteed Obligations made by
any of the Agents or Lenders may be rescinded by such Agent or Lender and any of
the Guaranteed Obligations continued, and the Guaranteed Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by any of the Agents
or Lenders, and the Credit Agreement, the other Credit Documents and any other
documents executed and delivered in connection therewith may be amended,
restated, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security, guarantee
or right of offset at any time held by any of the Agents or Lenders for the
payment of the Guaranteed Obligations may be sold, exchanged, waived,
surrendered or released. None of the Agents or Lenders shall have any obligation
to protect, secure, perfect or insure any Lien at any time held by it as
security for the Guaranteed Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.4 Guarantee Absolute and Unconditional. Holdings waives any and
all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by any of the Agents
or Lenders upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Credit Parties, on the
one hand, and the Agents and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Holdings waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon any
of the Credit Parties with respect to the Guaranteed Obligations. Holdings
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Credit Agreement,
this Agreement or any other Credit Document, any of the Guaranteed Obligations
or any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by any of the Agents or
Lenders, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any of the other Credit Panics or any other Person against any of the Agents or
the Lenders, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of any of the Credit Parties) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any of the other
Credit Parties for the Guaranteed Obligations, or of Holdings under the
guarantee contained in this Section 2, in bankruptcy or in any other instance.
When making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against Holdings, any of the Agents or Lenders may, but shall be under
no obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against any of the other Credit Parties or any other
Person or against any collateral security or guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the
any of the Agents or Lenders
4
to make any such demand. to pursue such other rights or remedies or to collect
any payments from any of the other Credit Parties or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of any of the other Credit Parties or any other
Person or any such collateral security, guarantee or right of offset, shall not
relieve Holdings of any obligation or liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of any of the Agents or Lenders against Holdings. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
2.5 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the any of the Agents or Lenders
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any of the Credit Parties, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
of the Credit Parties or any substantial part of its property, or otherwise, all
as though such payments had not been made.
2.6 Payments. Holdings hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, fax: (000) 000-0000.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, Holdings hereby
represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreement. The representations and
warranties set forth in Section 4 of the Credit Agreement, each of which is
hereby incorporated herein by reference, are true and correct, and the
Administrative Agent and each Lender shall be entitled to rely on each of them
as if they were fully set forth herein, provided that each reference in each
such representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 3.1, be deemed to be a reference to Holdings'
knowledge.
SECTION 4. COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Guaranteed Obligations shall
have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Covenants in Credit Agreement. Holdings shall take, or shall
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by Holdings or any of its Subsidiaries.
4.2 Issuance of Indebtedness. Except for the issuance of pay-in-kind
junior subordinated notes to the extent permitted by clause (v) of the
definition of "Permitted Parent
5
Distributions." Holdings shall not issue, incur or assume any Indebtedness or
any Guarantee Obligations other than Indebtedness and Guarantee Obligations
under the Credit Documents to which it is a party.
4.3 Investments. Holdings shall not have outstanding or acquire any
Investment in any Person other than Investments in Capital Stock of the Borrower
and Cash Equivalents.
4.4 Activity. Holdings shall not engage in any business activity
other than its ownership and voting of the Capital Stock of the Borrower and the
performance of its obligations under the Credit Documents to which it is a party
and the Transaction Documents to which it is a party.
4.5 Distributions. Holdings shall not make any Parent Distributions
other than Parent Distributions payable solely in common stock of Holdings and
Permitted Parent Distributions.
4.6 Reports. Holdings will deliver to the Administrative Agent
promptly upon their becoming available, copies of all consolidated or
consolidating financial statements, reports, notices and proxy statements sent
or made available generally by Holdings to its security holders, of all regular
and periodic reports and all registrations statements and prospectuses, if any,
filed by Holdings with any securities exchange or with the Securities and
Exchange Commission and of all press releases and other statements made
available generally by Holdings to the public concerning Holdings.
4.7 Certificates; Other Information. Furnish to the Administrative
Agent with copies for each Lender:
4.7(a) concurrently with the delivery by the Borrower of the
financial statements referred to in subsection 6.1 of the Credit
Agreement, a certificate of a Responsible Officer of Holdings stating
that, to the best of such Officer's knowledge, during such period (i) no
Subsidiary has been formed or acquired, (ii) Holdings has not changed its
name, its principal place of business, its chief executive office or the
location of any material item of tangible Collateral without complying
with the requirements of this Agreement and the Security Documents with
respect thereto and (iii) such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate; and
4.7(b) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
4.8 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of Holdings or its Subsidiaries, as the case may be; provided that,
notwithstanding the foregoing, Holdings and each of its Subsidiaries shall have
the right to pay any such obligation and in good faith contest, by proper legal
actions or proceedings, the invalidity or amount of such claims.
4.9 Inspection of Property, Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time on a Business Day and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition
6
of Holdings and its Subsidiaries with officers and employees of Holdings and its
Subsidiaries and with its independent certified public accountants; provided
that the Administrative Agent or such Lender shall notify Holdings prior to any
contact with such accountants and give Holdings the opportunity to participate
in such discussion; provided, further, that Holdings shall notify the
Administrative Agent of any such visits, inspections or discussions prior to
each occurrence thereof.
4.10 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
4.10(a) the occurrence of any Default or Event of Default;
4.10(b) any (i) default or event of default under any
Contractual Obligation of Holdings or (ii) litigation, investigation or
proceeding which may exist at any time between Holdings and any
Governmental Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
4.10(c) any litigation or proceeding affecting Holdings in
which the amount involved is $7,500,000 or more and not covered by
insurance or in which injunctive or similar relief is sought;
4.10(d) the following events, as soon as possible and in any
event within 45 days after Holdings knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any plan (other than a Multiple Employer Plan), a failure to
make any required contribution to a Plan, the creation of any Lien in
favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC
or Holdings or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan; and
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Holdings proposes to take with respect thereto.
4.11 Further Assurance. Upon the request of the Administrative Agent
promptly perform or cause to be performed any and all acts and execute or cause
to be executed any and all documents (including, without limitation, financing,
statements and continuation statements) for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are necessary or
advisable to maintain in favor of the Administrative Agent, for the benefit of
the Lenders, Liens on the Collateral that are duly perfected in accordance with
all applicable Requirements of Law.
4.12 Additional Collateral. With respect to any assets acquired
after the Closing Date by Holdings that are intended to be subject to the Lien
created by any of the Security Documents but which are not so subject (other
than immaterial assets a Lien on which cannot be perfected by filing UCC-1
financing statements), promptly (and in any event within 30 days after the
acquisition thereof): (i) execute and deliver to the Administrative Agent such
amendments to the Parent Pledge and Security Agreement or such other documents
as the Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on such assets,
(ii) take all actions necessary or advisable to cause such Lien to be duly
perfected in accordance with all applicable Requirements of Law, including
without limitation, the filing of financing statements in such jurisdictions
7
as may be requested by the Administrative Agent, and (ii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately preceding.
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
4.13 Foreign Jurisdictions. Within 60 days following the Closing
Date, (i) be duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the failure to so qualify could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (ii) deliver to
the Administrative Agent certificates of good standing issued by the Secretary
of State (or other relevant officers) of each jurisdiction referred to in clause
(i) of this subsection.
4.14 Maintenance of Collateral; Alterations. Refrain from committing
any waste on any Collateral or, except in the ordinary course of its business,
make any material change in the use of any Collateral.
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of the Credit Agreement.
5.2 Notices. All notices, requests and demands to or upon the Agents
or Holdings hereunder shall be effected in the manner provided for in subsection
10.2 of the Credit Agreement; provided that any such notice, request or demand
to or upon Holdings shall be addressed to Holdings at its notice address set
forth below its signature hereto.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 5.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of any of the Agents or Lenders, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by any of the Agents or Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, on behalf of the other Agents and the Lenders, would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
5.4(a) Holdings agrees to pay or reimburse each of the Lenders
and Agents for all its costs and expenses incurred in collecting against
Holdings under the guarantee contained in Section 2 or otherwise enforcing
or preserving any rights under this Agreement and the other Credit
Documents to which Holdings is a party, including, without limitation, the
fees and disbursements of counsel to the Administrative Agent and of
counsel to each of the other Agents
8
and Lenders.
5.4(b) Holdings agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable in connection
with any of the transactions contemplated by this Agreement.
5.4(c) Holdings agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant
to subsection 10.5 of the Credit Agreement.
5.4(d) The agreements in this Section 5.4 shall survive
repayment of the Guaranteed Obligations and all other amounts payable
under the Credit Agreement, this Agreement and the other Credit Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Holdings and shall inure to the benefit of the Agents
and the Lenders and their successors and assigns; provided that Holdings may not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Required Lenders.
5.6 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
5.7 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5.8 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
5.9 Integration. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Agents and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the any of the Agents or Lenders relative to
subject matter hereof and thereof not expressly set forth or referred to herein,
the Credit Agreement or in the other Credit Documents.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.11 SUBMISSION TO JURISDICTION; WAIVERS. HOLDINGS HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
9
5.11(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENT AND
THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
5.11(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
5.11(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO HOLDINGS AT ITS ADDRESS REFERRED TO IN SECTION 5.2 OR AT SUCH
OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO;
5.11(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
5.11(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
5.12 Acknowledgements. Holdings hereby acknowledges that:
5.12(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to
which it is a party;
5.12(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to Holdings arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between Holdings, on the one hand, and the Agents and Lenders, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
5.12(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Agents, among the Agents and/or the Lenders
or among Holdings and the Agents and/or the Lenders.
5.13 WAIVER OF JURY TRIAL. HOLDINGS AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT
10
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
5.14 Releases. At such time as the Loans, the Reimbursement
Obligations and the other Guaranteed Obligations shall have been paid in full,
the Commitments have been terminated and no Letters of Credit shall be
outstanding, this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and Holdings
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights shall revert to Holdings and the
Administrative Agent shall execute and deliver to Holdings such documents as
Holdings shall reasonably request to evidence such termination.
[Signature page follows]
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By: ____________________________
Name:
Title:
Address for Notices:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ____________________
Phone: (000) 000-0000
Fax: (212)___-____
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA NT & SA, AS ADMINISTRATIVE AGENT
By: _________________________
Name:
11
EXHIBIT B-2
TO
CREDIT AGREEMENT
================================================================================
SUBSIDIARY GUARANTEE AGREEMENT
made by
__________________________
in favor of
BANK OF AMERICA NT & SA,
as Administrative Agent
Dated as of _______
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS ................................................... 2
1.1 Definitions ..................................................... 2
1.2 Other Definitional Provisions ................................... 2
SECTION 2. GUARANTEE ....................................................... 2
2.1 Guarantee ....................................................... 2
2.2 Right of Contribution ........................................... 3
2.3 No Subrogation .................................................. 3
2.4 Amendments, etc. with respect to the Guaranteed Obligations ..... 3
2.5 Guarantee Absolute and Unconditional ............................ 4
2.6 Reinstatement ................................................... 5
2.7 Payments ........................................................ 5
SECTION 3. REPRESENTATIONS AND WARRANTIES .................................. 5
3.1 Representations in Credit Agreement ............................. 5
SECTION 4. COVENANTS ....................................................... 5
4.1 Covenants in Credit Agreement ................................... 5
SECTION 5. MISCELLANEOUS ................................................... 5
5.1 Amendments in Writing ........................................... 5
5.2 Notices ......................................................... 6
5.3 No Waiver by Course of Conduct; Cumulative Remedies ............. 6
5.4 Enforcement Expenses; Indemnification ........................... 6
5.5 Successors and Assigns .......................................... 6
5.6 Counterparts .................................................... 7
5.7 Severability .................................................... 7
5.8 Section Headings ................................................ 7
5.9 Integration ..................................................... 7
5.10 GOVERNING LAW ................................................... 7
5.11 SUBMISSION TO JURISDICTION; WAIVERS ............................. 7
5.12 Acknowledgements ................................................ 8
5.13 WAIVER OF JURY TRIAL ............................................ 8
5.14 Additional Guarantors ........................................... 8
5.15 Releases ........................................................ 8
i
FORM OF
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT, dated as of __________, ____ made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "Guarantors"), in favor of Bank of America
NT & SA, ("BOA") as Administrative Agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions (collectively, the
"Lenders") from time to time parties to the Credit Agreement, dated as of April
30, 1997 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), the Lenders, Xxxxxx Commercial Paper Inc.
("LCPI"), as documentation agent (in such capacity, the "Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Syndication Agent" and
together with the Documentation Agent and Administrative Agent, the "Agents"),
LCPI as arranger (in such capacity, the "Arranger") and the Administrative
Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the
terms and subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Guarantors in connection with the
operation of their respective businesses;
WHEREAS, the Borrower and the other Guarantors are engaged in
related businesses, and each Guarantor will derive substantial direct and
indirect benefit from the making of the extensions of credit under the
Credit Agreement; and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the
benefit of the Borrower under the Credit Agreement that the Guarantors
shall have executed and delivered this Agreement to the Administrative
Agent for the ratable benefit of the Lenders and the Agents;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Agents and the Lenders to enter into
the Credit Agreement, and to induce the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, each
Guarantor hereby agrees with the Administrative Agent, for the ratable benefit
of the Lenders and the Agents, as follows:
1
SECTION 1. DEFINED TERMS
1.1 Definitions.
1.1(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
1.1(b) The following terms shall have the following meanings:
"Agreement": this Subsidiary Guarantee Agreement, as the same
may be amended, restated, supplemented or otherwise modified from time to
time.
"Guarantors": the collective reference to each Guarantor.
"Guaranteed Obligations" has the meaning set forth in Section
2.1(a) hereof.
1.2 Other Definitional Provisions.
1.2(a) The words "hereof," "herein", "hereto" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and Section and Schedule references are to this Agreement
unless otherwise specified.
1.2(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. GUARANTEE
2.1 Guarantee.
2.1(a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent,
for the ratable benefit of the Lenders and the Agents and their respective
successors, indorsees, transferees and assigns, the prompt and complete
payment and performance by each of the other Credit Parties when due
(whether at the stated maturity, by acceleration or otherwise) of such
other Credit Party's Obligations (collectively, the "Guaranteed
Obligations"). The liability of the Guarantors hereunder shall be joint
and several with the Obligations of all other Guarantors.
2.1(b) Anything herein or in any other Credit Document to the
contrary notwithstanding, the maximum liability of each Guarantor
hereunder and under the other Credit Documents shall in no event exceed
the maximum amount which can be guaranteed by such Guarantor under
applicable federal and state laws relating to the insolvency of debtors
without rendering such Guarantor insolvent.
2.1(c) Each Guarantor agrees that the Guaranteed Obligations
may at any time and from time to time exceed the amount of the liability
of such Guarantor hereunder without impairing the guarantee contained in
this Section 2 or affecting the rights and remedies of the
2
Administrative Agent, on behalf of the other Agents and the Lenders
hereunder.
2.1(d) The guarantee contained in this Section 2 shall remain
in full force and effect until all the Guaranteed Obligations and the
obligations of each Guarantor under this Agreement shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and
the Commitments shall be terminated, notwithstanding that from time to
time during the term of the Credit Agreement, no Loans or Letters of
Credit may be outstanding.
2.1(e) No indefeasible payment made by any Credit Party or any
other Person or received or collected by any of the Agents or the Lenders
by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment
of the Guaranteed Obligations shall be deemed to release the liability of
any Guarantor hereunder, and each Guarantor shall, notwithstanding any
such payment (other than any payment made by such Guarantor in respect of
the Guaranteed Obligations or any payment received or collected from such
Guarantor in respect of the Guaranteed Obligations), remain liable for the
Guaranteed Obligations up to the maximum liability of such Guarantor
hereunder until the Guaranteed Obligations are paid in full, no Loan or
Letter of Credit shall be outstanding and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Lenders, and each Guarantor
shall remain jointly and severally liable to the Administrative Agent and the
Lenders for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
any of the Agents or Lenders, no Guarantor shall be entitled to be subrogated to
any of the rights of any of the Agents or Lenders against the Other Credit
Parties or any collateral security or guarantee or right of offset held by any
of the Agents or Lenders for the payment of all or any portion of the Guaranteed
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from any of the Other Credit Parties or any other
Guarantor in respect of payments made by such Credit Party hereunder, until all
amounts owing to the Agents and the Lenders by the other Credit Parties on
account of any of the Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Guaranteed Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Agents and the Lenders, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Administrative Agent in the exact form received
by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent,
if required), to be applied against the Guaranteed Obligations, whether matured
or unmatured, in such order as the Administrative Agent may determine.
2.4 Amendments. etc. with respect to the Guaranteed Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of
3
the Guaranteed Obligations made by any of the Agents or Lenders may be rescinded
by such Agent and any of the Guaranteed Obligations continued, and the
Guaranteed Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any of the Agents or Lenders, and the Credit
Agreement, the other Credit Documents and any other documents executed and
delivered in connection therewith may be amended, restated, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders or all Lenders, as the case may be) may deem advisable from
time to time, and any collateral security guarantee or right of offset at any
time held by any of the Agents or Lenders for the payment of the Guaranteed
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Agents or Lenders shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Guaranteed
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by any of the Agents
or Lenders upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Agents and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon any of the Credit Parties with respect to the Guaranteed
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement, this Agreement or any other Credit Document, any of the
Guaranteed Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
any of the Agents or Lenders, (b) any defense, set-off or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by any of the other Credit Parties or any other Person against
any of the Agents or Lenders, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of any of the Credit Parties) which constitutes,
or might be construed to constitute, an equitable or legal discharge of any of
the Credit Parties for the Guaranteed Obligations, or of such Guarantor under
the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, any of the Agents or Lenders may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as it may have against any of the other Credit Parties,
any other Guarantor or any other Person or against any collateral security or
guarantee for the Guaranteed Obligations or any right of offset with respect
thereto, and any failure by any of the Agents or Lenders to make any such
demand, to pursue such other rights or remedies or to collect any payments from
any of the other Credit Parties, any other Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of any of the other Credit Parties, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of any of the Agents or
Lenders against any Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
4
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by and of the Agents or Lenders upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any of
the Credit Parties, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, any of the
Credit Parties or any substantial part of its property, or otherwise, all as
though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, fax: (212)
000-0000.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to or for the benefit of the Borrower thereunder, each Guarantor hereby
represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreement. In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Guarantor or to the Credit Document to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Administrative Agent and each Lender
shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty to
the Borrower's knowledge shall, for the purposes of this Section 3.1, be deemed
to be a reference to such Guarantor's knowledge.
SECTION 4. COVENANTS
Each Guarantor covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Guaranteed Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
4.1 Covenants in Credit Agreement. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or not taken, as the case may be, so
that no Default or Event of Default is caused by the failure to take such action
or to refrain from taking such action by any of the Credit Parties.
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of the Credit Agreement.
5.2 Notices. All notices, requests and demands to or upon the Agents
or any Guarantor hereunder shall be effected in the manner provided for in
subsection 10.2 of the Credit Agreement; provided that any such notice, request
or demand to or upon any Guarantor shall be addressed
5
to such Guarantor at its notice address set forth below its respective signature
hereto.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 5.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of any of the Agents or Lenders, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by any of the Agents or Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, on behalf of the other Agents and the Lenders, would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification.
5.4(a) Each Guarantor agrees to pay or reimburse each of the
Lenders and Agents for all its costs and expenses incurred in collecting
against such Guarantor under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights under this Agreement and the
other Credit Documents to which such Guarantor is a party, including,
without limitation, the fees and disbursements of counsel to the
Administrative Agent and of counsel to each of the other Agents and
Lenders.
5.4(b) Each Guarantor agrees to pay, and to save the Agents
and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable in connection
with any of the transactions contemplated by this Agreement.
5.4(c) Each Guarantor agrees to pay, and to save the Agents
and the Lenders harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant
to subsection 10.5 of the Credit Agreement.
5.4(d) The agreements in this Section 5.4 shall survive
repayment of the Guaranteed Obligations and all other amounts payable
under the Credit Agreement, this Agreement and the other Credit Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that no
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Required Lenders.
5.6 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
6
5.7 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceabilitv without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5.8 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
5.9 Integration. This Agreement and the other Credit Documents
represent the agreement of the Guarantors, the Agents and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreement or in the other Credit Documents.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.11 SUBMISSION TO JURISDICTION; WAIVERS. EACH GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
5.11(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENT AND
THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
5.11(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
5.11(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH GUARANTOR AT ITS ADDRESS REFERRED TO IN SUBSECTION 5.2 OR
AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
5.11(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
7
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
5.11(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
5.12 Acknowledgements. Each Guarantor hereby acknowledges that:
5.12(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to
which it is a party;
5.12(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between the Guarantors, on the one hand, and the Agents and
Lenders, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
5.12(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among Agents, among the Agents and/or the Lenders, or
among the Guarantors and the Agents and/or the Lenders.
5.13 WAIVER OF JURY TRIAL. EACH GUARANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
5.14 Additional Guarantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 6.10 of the
Credit Agreement shall become a Guarantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto.
5.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Guaranteed Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be
outstanding, this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent
and each Guarantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights shall
revert to the Guarantors and the Administrative Agent shall execute and
deliver to such Guarantor such documents as such Guarantor shall
reasonably request to evidence such termination.
(b) At the request and sole expense of the Borrower, a
Guarantor shall be released from its obligations hereunder in the event
that all the Capital Stock of such Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit
8
Agreement.
[Signature page follows]
9
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
[Subsidiary Guarantors]
By: _______________________________
Name:
Title:
Address for Notices:
___________________________________
___________________________________
___________________________________
Attention:
Phone: ( ) ___________
Fax: ( ) ___________
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA NT & SA, AS ADMINISTRATIVE AGENT
By: ________________________
Name:
Title:
10
Annex 1 to
Subsidiary Guarantee Agreement
ASSUMPTION AGREEMENT, dated as of ______________, _____, made by
____________________, a ________________ corporation (the "Additional
Guarantor"), in favor of Bank of America NT & SA ("BOA"), as administrative
agent (in such capacity, the "Administrative Agent") for the banks and other
financial institutions (the "Lenders") parties to the Credit Agreement referred
to below. All capitalized terms not defined herein shall have the meaning
ascribed to them in such Credit Agreement.
W I T N E S S E T H:
WHEREAS, L-3 Communications Corporation, a Delaware corporation (the
"Borrower"), the Lenders, Xxxxxx Commercial Paper Inc. ("LCPI"), as
Documentation Agent, LCPI as Syndication Agent, LCPI as Arranger, and the
Administrative Agent have entered into a Credit Agreement, dated as of April 30,
1997, (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower and
certain of its Affiliates (other than the Additional Guarantor) have entered
into the Subsidiary Guarantee Agreement, dated as of _________ , ____ (as
amended, supplemented or otherwise modified from time to time, the "Subsidiary
Guarantee Agreement") in favor of the Administrative Agent for the benefit of
the Lenders;
WHEREAS, the Credit Agreement requires the Additional Guarantor to
become a party to the Subsidiary Guarantee Agreement; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Subsidiary Guarantee
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subsidiary Guarantee Agreement. By executing and delivering this
Assumption Agreement, the Additional Subsidiary Guarantor, as provided in
Section 5.14 of the Subsidiary Guarantee Agreement, hereby becomes a party to
the Subsidiary Guarantee Agreement as a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedule 1 to the
Subsidiary Guarantee Agreement. The Additional Guarantor hereby represents and
warrants that each of the representations and warranties contained in Section 3
of the Subsidiary Guarantee Agreement is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR}
By: _______________________________
Name:
Title:
Address for Notices:
___________________________________
___________________________________
___________________________________
Attention:
Phone: ( ) ___________
Fax: ( ) ___________
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA NT & SA, AS ADMINISTRATIVE AGENT
By: ________________________
Name:
Title:
EXHIBIT B-3
TO
CREDIT AGREEMENT
================================================================================
PARENT PLEDGE AND SECURITY AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINSG, INC.
in favor of
BANK OF AMERICA NT & SA,
as Administrative Agent
Dated as of April 30, 1997
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS ................................................... 1
1.1 Definitions ..................................................... 1
1.2 Other Definitional Provisions ................................... 4
SECTION 2. GRANT OF SECURITY INTEREST ...................................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES .................................. 6
3.1 Representations in Credit Agreement ............................. 6
3.2 Title; No Other Liens ........................................... 6
3.3 Perfected First Priority Liens .................................. 6
3.4 Chief Executive Office .......................................... 7
3.5 Inventory and Equipment ......................................... 7
3.6 Pledged Stock ................................................... 7
3.7 Farm Products ................................................... 7
3.8 Receivables ..................................................... 7
3.9 Contracts ....................................................... 7
3.10 Intellectual Property ........................................... 7
SECTION 4. COVENANTS ....................................................... 7
4.1 Covenants in Credit Agreement ................................... 7
4.2 Delivery of instruments and Chattel Paper ....................... 8
4.3 Payment of Obligations .......................................... 8
4.4 Maintenance of Perfected Security Interest; Further
Documentation .................................................. 8
4.5 Changes in Locations, Name, etc.................................. 8
4.6 Notices ......................................................... 8
4.7 Pledged Securities .............................................. 9
SECTION 5. REMEDIAL PROVISIONS ............................................. 10
5.1 Pledged Stock ................................................... 10
5.2 Proceeds to be Turned Over To Administrative Agent .............. 11
5.3 Application of Proceeds ......................................... 11
5.4 Code and Other Remedies ......................................... 11
5.5 Registration Rights ............................................. 12
5.6 Waiver, Deficiency .............................................. 13
SECTION 6. THE ADMINISTRATIVE AGENT ........................................ 13
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc...... 13
6.2 Duty of Administrative Agent .................................... 15
6.3 Execution of Financing Statements ............................... 15
6.4 Authority of Administrative Agent ............................... 15
SECTION 7. MISCELLANEOUS ................................................... 15
7.1 Amendments in Writing ........................................... 15
7.2 Notices ......................................................... 15
7.3 No Waiver by Course of Conduct; Cumulative Remedies ............. 16
7.4 Enforcement Expenses; Indemnification ........................... 16
7.5 Successors and Assigns .......................................... 16
i
Page
----
7.6 Set-Off ......................................................... 16
7.7 Counterparts .................................................... 17
7.8 Severability .................................................... 17
7.9 Section Headings ................................................ 17
7.10 Integration ..................................................... 17
7.11 GOVERNING LAW ................................................... 17
7.12 SUBMISSION TO JURISDICTION; WAIVERS ............................. 17
7.13 Acknowledgements ................................................ 18
7.14 WAIVER OF JURY TRIAL ............................................ 18
7.15 Releases ........................................................ 18
ii
FORM OF
PARENT PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of April 30, 1997, made by
L-3 Communications Holdings, Inc., a Delaware corporation ("Holdings"), in favor
of Bank of America NT & SA ("BOA") as Administrative Agent (in such capacity,
the "Administrative Agent") for the banks and other financial institutions
(collectively, the "Lenders") from time to time parties to the Credit Agreement,
dated as of April 30, 1997 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among L-3 Communications
Corporation, a Delaware Company (the "Borrower"), the Lenders, Xxxxxx Commercial
Paper Inc. ("LCPI"), as documentation agent (in such capacity, the
"Documentation Agent"), LCPI as syndication agent (in such capacity, the
"Syndication Agent"; and together with the Documentation Agent and
Administrative Agent, the "Agents"), LCPI as arranger (in such capacity, the
"Arranger") and the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, Holdings will derive substantial direct and indirect
benefit from the making of the extensions of credit to the Borrower under the
Credit Agreement; and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower under the Credit Agreement that Holdings shall have executed and
delivered this Agreement to the Administrative Agent for the ratable benefit of
the Lenders and the Agents;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, Holdings hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders and the Agents, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
1.1(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Deposit
Accounts, Documents, Equipment, Farm Products, Fixtures, Instruments and
Inventory.
1.1(b) The following terms shall have the following meanings:
1
"Agreement": this Parent Pledge and Security Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 2.
"Collateral Account": any collateral account established by
the Administrative Agent as provided in subsection 5.4.
"Contracts": all contracts and agreements to which Holdings is
a party on the date hereof or becomes a party subsequent to the date
hereof, as the same may be amended, supplemented or otherwise modified
from time to time, including, without limitation, (i) all rights of
Holdings to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of Holdings to damages arising
thereunder and (iii) all rights of Holdings to perform and to exercise all
remedies thereunder.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed on Schedule 4), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings
and applications in the United States Copyright Office, and (ii) the right
to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming Holdings as
licensor or licensee (including, without limitation, those listed on
Schedule 4), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles": all "general intangibles" as such term
is defined in Section 9-106 of the Uniform Commercial Code in effect in
the State of New York on the date hereof and, in any event, including,
without limitation, with respect to Holdings, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which
Holdings is a party or under which Holdings has any right, title or
interest or to which Holdings or any property of Holdings is subject, as
the same may from time to time be amended, supplemented or otherwise
modified, including, without limitation, (i) all rights of Holdings to
receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of Holdings to damages arising thereunder and
(iii) all rights of Holdings to perform and to exercise all remedies
thereunder, in each case to the extent the grant by Holdings of a security
interest pursuant to this Agreement in its right, title and interest in
such contract, agreement, instrument or indenture is not prohibited by
such contract, agreement, instrument or indenture without the consent of
any other party thereto, would not give any other party to such contract,
agreement, instrument or indenture the right to terminate its obligations
thereunder, or is permitted with consent if all necessary consents to such
grant of a security interest have been obtained from the other parties
thereto (it being understood that the foregoing shall not be deemed to
obligate Holdings to obtain such consents); provided, that the foregoing
limitation shall not affect, limit, restrict or impair the grant by
Holdings of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any
such contract, agreement, instrument or indenture.
2
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made
by Holdings to any of its Subsidiaries.
"Investment Property": as defined in the California UCC.
"Issuers": the collective reference to each issuer of a
Pledged Security.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, (i) interest accruing at the then applicable rate provided in
the Credit Agreement, after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to Holdings, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and (ii) any exposure
of any Lender under any lockbox arrangement, controlled disbursement
arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of Holdings
and/or its Subsidiaries) to the Administrative Agent or any Lender (or, in
the case of any Interest Rate Agreement referred to below, any Affiliate
of any Lender), whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, this
Agreement, the other Credit Documents, any Letter of Credit or any
Interest Rate Agreement entered into by Holdings with any Lender (or any
Affiliate of any Lender) or any Cash Management Agreement entered into by
Holdings or any Subsidiary of Holdings with any Lender or any other
document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent and counsel to the Lenders that are required to be paid by Holdings
pursuant to the terms of any of the foregoing agreements).
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and
extensions thereof and all goodwill associated therewith, including,
without limitation, any of the foregoing referred to on Schedule 4, (ii)
all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part
thereof, including, without limitation, any of the foregoing referred to
on Schedule 4, and (iii) all rights to obtain any reissues or extensions
of the foregoing.
3
"Patent License": all agreements, whether written or oral,
providing for the grant by or to Holdings of any right to manufacture, use
or sell any invention covered in whole or in part by a Patent, including,
without limitation, any of the foregoing referred to on Schedule 4.
"Pledged Notes": all promissory notes listed on Schedule 1,
all Intercompany Notes at any time issued to any Pledgor and all other
promissory notes issued to or held by Holdings (other than promissory
notes issued in connection with extensions of trade credit by Holdings in
the ordinary course of business).
"Pledged Securities": the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on
Schedule 1, together with any other shares, stock certificates, options or
rights of any nature whatsoever in respect of the Capital Stock of any
Person that may be issued or granted to, or held by, Holdings while this
Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Stock, collections thereon
or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications
in connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to on Schedule 4, and (ii) the
right to obtain all renewals thereof
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to Holdings of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
on Schedule 4.
1.2 Other Definitional Provisions.
1.2(a) The words "hereof," "herein", "hereto" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to
4
any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
1.2(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
1.2(c) Where the context requires, terms relating to the
Collateral or any part thereof shall refer to Holdings' Collateral or the
relevant part thereof.
SECTION 2. GRANT OF SECURITY INTEREST
Holdings hereby assigns and transfers to the Administrative Agent,
and hereby grants to the Administrative Agent, for the ratable benefit of the
Agents and the Lenders, a security interest in, all of the following property
now owned or at any time hereafter acquired by Holdings or in which Holdings now
has or at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations:
2.0(a) all Accounts;
2.0(b) all Chattel Paper;
2.0(c) all Contracts;
2.0(d) all Documents;
2.0(e) all Deposit Accounts;
2.0(0) all Equipment;
2.0(g) all Fixtures;
2.0(h) all General Intangibles;
2.0(i) all Instruments;
2.0(j) all Intellectual Property;
2.0(k) all Inventory;
2.0(l) all Investment Property;
2.0(m) all Pledged Stock;
2.0(n) all books and records pertaining to the Collateral; and
5
2.0(o) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, except as permitted by Section 9-318(4) of the
New York UCC, this Agreement shall not constitute an assignment of any Contract,
General Intangible, Patent License or Trademark License to the extent that such
Contract, General Intangible, Patent License or Trademark License, or the
instruments giving the same, would prohibit such assignment.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Holdings
hereby represents and warrants to each of the Agents and the Lenders that:
3.1 Representations in Credit Agreement. The representations and
warranties set forth in Section 4 of the Credit Agreement, each of which is
hereby incorporated herein by reference, are true and correct, and the Agents
and the Lenders shall be entitled to rely on each of them as if they were fully
set forth herein.
3.2 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, Holdings owns each item of the Collateral
free and clear of any and all Liens or claims of others. No financing statement
or other public notice with respect to all or any part of the Collateral is on
file or of record in any public office, except such as have been filed in favor
of the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, pursuant to this Agreement or as are permitted by the Credit Agreement.
3.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement:
3.3(a) upon completion of the filings and other actions
specified on Schedule 2 (which, in the case of all filings and other
documents referred to on said Schedule, have been delivered to the
Administrative Agent in completed and duly executed form) will constitute
valid perfected security interests in all of the Collateral in favor of
the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, as collateral security for the Obligations, enforceable in
accordance with the terms hereof against all creditors of Holdings and any
Persons purporting to purchase any Collateral from Holdings, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and
3.3(b) are prior to all other Liens on the Collateral in
existence on the date hereof except for unrecorded Liens and other Liens
or permitted by the Credit Agreement which have priority over the Liens on
the Collateral by operation of law.
6
3.4 Chief Executive Office. On the date hereof, Holdings'
jurisdiction of organization and the location of Holdings' chief executive
office is specified on Schedule 3.
3.5 Inventory and Equipment. None of Collateral constitutes or is
the Proceeds of Inventory or Equipment.
3.6 Pledged Stock.
3.6(a) The shares of Pledged Stock pledged by Holdings
hereunder constitute all the issued and outstanding shares of all classes
of the Capital Stock of each Issuer owned by Holdings.
3.6(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
3.6(c) Holdings is the record and beneficial owner of, and has
good and marketable title to, the Pledged Stock pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement and other
Liens permitted by the Credit Agreement which have priority by operation
of law.
3.7 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
3.8 Receivables. None of the Collateral constitutes or is the
Proceeds of Receivables.
3.9 Contracts. None of the Collateral constitutes or is the Proceeds
of Contracts.
3.9(a) Except as set forth on Schedule 5 hereto, none of the
parties to any Contract is a Governmental Authority.
3.10 Intellectual Property. None of the Collateral constitutes or is
the Proceeds of Intellectual Property.
SECTION 4. COVENANTS
Holdings covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
4.1 Covenants in Credit Agreement. Holdings shall take, or shall
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by any of the Credit Parties.
4.2 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper,
7
such Instrument or Chattel Paper shall be promptly delivered to the
Administrative Agent, duly indorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement.
4.3 Payment of Obligations. Holdings will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if the amount or validity thereof is
currently being contested in good faith by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of
Holdings and such proceedings could not reasonably be expected to result in the
sale, forfeiture or loss of any material portion of the Collateral or any
interest therein.
4.4 Maintenance of Perfected Security Interest; Further
Documentation.
4.4(a) Holdings shall maintain the security interest created
by this Agreement as a perfected security interest having at least the
priority described in subsection 3.3 and shall defend such security
interest against the claims and demands of all Persons whomsoever.
4.4(b) Holdings will furnish to the Agents and the Lenders
from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in
reasonable detail.
4.4(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of Holdings,
Holdings will promptly and duly execute and deliver, and have recorded,
such further instruments and documents and take such further actions as
the Administrative Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code (or other similar laws) in effect in any jurisdiction with
respect to the security interests created hereby.
4.5 Changes in Locations, Name, etc. Holdings will not, except upon
15 days' prior written notice to the Administrative Agent and delivery to the
Administrative Agent of all additional executed financing statements and other
documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein,
change its name, identity or corporate structure to such an extent that any
financing statement filed by the Administrative Agent in connection with this
Agreement would become misleading.
4.6 Notices. Holdings will advise the Agents and the Lenders
promptly, in reasonable detail, of:
4.6(a) any Lien (other than security interests created hereby
or Liens permitted under the Credit Agreement) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder, and
8
4.6(b) of the occurrence of any other event of which it is
aware which could reasonably be expected to have a material adverse effect
on the enforceability, or perfection or priority of, the security
interests purported to be created hereby.
4.7 Pledged Securities.
4.7(a) If Holdings shall become entitled to receive or shall
receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or
rights in respect of the Capital Stock of any Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange for, any shares
of the Pledged Stock, or otherwise in respect thereof, Holdings shall
accept the same as the agent of the Agents and the Lenders, hold the same
in trust for the Agents and the Lenders and deliver the same forthwith to
the Administrative Agent in the exact form received, duly indorsed by
Holdings to the Administrative Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by
Holdings and with, if the Administrative Agent so requests, signature
guaranteed, to be held by the Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums
paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent
to be held by it hereunder as additional collateral security for the
Obligations, and in case any distribution of capital shall be made on or
in respect of the Pledged Stock or any property shall be distributed upon
or with respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the
reorganization thereof, the property so distributed shall, unless
otherwise subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be held
by it hereunder as additional collateral security (or except as provided
in the Credit Agreement) for the Obligations. Except as provided in the
Credit Agreement, if any sums of money or property so paid or distributed
in respect of the Pledged Stock under circumstances described in this
Section 4.7(a) shall be received by Holdings, Holdings shall, until such
money or property is paid or delivered to the Administrative Agent, hold
such money or property in trust for the Lenders, segregated from other
funds of Holdings, as additional collateral security for the Obligations.
4.7(b) Except as provided in the Credit Agreement, without the
price written consent of the Administrative Agent, Holdings will not (i)
vote to enable, or take any other action to permit, any Issuer to issue
any stock or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange
for any stock or other equity securities of any nature of any Issuer, (ii)
sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Pledged Stock or Proceeds thereof (except
pursuant to a transaction expressly permitted by the Credit Agreement),
(iii) create, incur or permit to exist any Lien or option in favor of, or
any claim of any Person with respect to, any of the Pledged Stock or
Proceeds thereof, or any interest therein, except for the security
interests created by this Agreement or (iv) enter into any agreement or
undertaking restricting the right or ability of Holdings or the
Administrative Agent to sell, assign or transfer any of the Pledged Stock
or Proceeds thereof.
9
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock.
5.1(a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to
Holdings of the Administrative Agent's intent to exercise its
corresponding rights pursuant to subsection 5.3(b), Holdings shall be
permitted to receive all cash dividends paid in respect of the Pledged
Stock and all payments made in respect of the Pledged Notes, in each case
paid in the normal course of business of the relevant Issuer and
consistent with past practice, to the extent permitted in the Credit
Agreement, and to exercise all voting and corporate rights with respect to
the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would materially impair the
Collateral or which would result in any violation of any provision of the
Credit Agreement, this Agreement or any other Credit Document.
5.1(b) If an Event of Default shall occur and be continuing
and the Administrative Agent shall give notice of its intent to exercise
such rights to Holdings, (i) the Administrative Agent shall have the right
to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Stock and make application thereof to Obligations
in such order as the Administrative Agent may determine, and (ii) any or
all of the Pledged Stock shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Stock at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Pledged Stock as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its
discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by
Holdings or the Administrative Agent of any right, privilege or option
pertaining to such Pledged Stock, and in connection therewith, the right
to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Administrative Agent may
determine), all without liability except to account for property actually
received by it, but the Administrative Agent shall have no duty to
Holdings to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
5.1(c) Holdings hereby authorizes and instructs each Issuer of
any Pledged Stock pledged by Holdings hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that
(x) states that an Event of Default has occurred and is continuing and (y)
is otherwise in accordance with the terms of this Agreement, without any
other or further instructions from Holdings, and Holdings agrees that each
Issuer shall be fully protected in so complying, and (ii) unless otherwise
expressly permitted hereby, pay any dividends or other payments with
respect to the Pledged Stock directly to the Administrative Agent.
5.2 Proceeds to be Turned Over To Administrative Agent. In addition
to the rights of the Agents and the Lenders specified in subsection 5.1 with
respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by Holdings consisting of cash,
10
checks and other near-cash items shall be held by Holdings in trust for the
Agents and the Lenders, segregated from other funds of Holdings, and shall,
forthwith upon receipt by Holdings, be turned over to the Administrative Agent
in the exact form received by Holdings (duly indorsed by Holdings to the
Administrative Agent, if required). All Proceeds received by the Administrative
Agent hereunder shall be held by the Administrative Agent in a Collateral
Account maintained under its sole dominion and control. All Proceeds while held
by the Administrative Agent in a Collateral Account (or by Holdings in trust for
the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in subsection 5.5.
5.3 Application of Proceeds. At such intervals as may be agreed upon
by Holdings and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Obligations in such order as required by
the Credit Agreement, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to Holdings or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to
Holdings or to whomsoever may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and
be continuing. the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Borrower or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of any of the Agents or Lenders or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as it
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk. Any Agents or Lenders shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in the Borrower, which right or equity is
hereby waived and released. Holdings further agrees, at the Administrative
Agent's request, to assemble the Collateral and make it available to the
Administrative Agent at places which the Administrative Agent shall reasonably
select, whether at Holdings' premises or elsewhere. The Administrative Agent
shall apply the net proceeds of any action taken by it pursuant to this
subsection 5.6, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any
of the Collateral or in any way relating to the Collateral or the rights of the
Agents and the Lenders hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent may elect, and only after
such application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the New York UCC, need the Administrative Agent account for
11
the surplus, if any, to Holdings. To the extent permitted by applicable law,
Holdings waives all claims, damages and demands it may acquire against any
Agents or Lenders arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 15 days before such sale or other disposition.
5.5 Registration Rights.
5.5(a) If the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to subsection
5.6, and if in the opinion of the Administrative Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, Holdings will cause
the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in
the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its commercially reasonable
efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Stock, or that portion thereof
to be sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. Holdings agrees to cause such
Issuer to comply with the provisions of the securities or "Blue Sky" laws
of any and all jurisdictions which the Administrative Agent shall
designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will
satisfy the provisions of Section 11(a) of the Securities Act.
5.5(b) Holdings recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view
to the distribution or resale thereof. Holdings acknowledges and agrees
that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner. The Administrative Agent
shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register
such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do
so.
5.5(c) Holdings agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary
to make such sale or sales of all or any portion of the Pledged Stock
pursuant to this subsection 5.7 valid and binding and in compliance with
any and all other applicable Requirements of Law. Holdings further agrees
that a breach of any of the covenants contained in this subsection 5.7
will cause irreparable injury to the Agents and the Lenders, that the
Agents and the Lenders have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in
this subsection 5.7 shall
12
be specifically enforceable against Holdings, and Holdings hereby waives
and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of
Default has occurred under the Credit Agreement.
5.6 Waiver; Deficiency. Holdings waives and agrees not to assert any
rights or privileges which it may acquire under Section 9-112 of the New York
UCC. Holdings shall remain liable for any deficiency if the proceeds of any sale
or other disposition of the Collateral are insufficient to pay its Obligations
and the fees and disbursements of any attorneys employed by the Administrative
Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
6.1(a) Holdings hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power
of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Holdings and in
the name of Holdings or in its own name, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement, and, without
limiting the generality of the foregoing, Holdings hereby gives the
Administrative Agent the power and right, on behalf of Holdings, without
notice to or assent by Holdings, to do any or all of the following:
(i) in the name of Holdings or its own name, or
otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Receivable or Contract or with respect to any
other Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Receivable or
Contract or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute
and deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Administrative Agent may request to
evidence the Agents' and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of
Holdings relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral, effect any repairs or any
insurance called for by the terms of this Agreement and pay all or
any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for
in subsection, 5.6 or 5.7, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the
Collateral; and
13
(v)(A) direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct: (B) ask or demand for, collect,
and receive payment of and receipt for, any and all moneys, claims
and other amounts due or to become due at any time in respect of or
arising out of any Collateral; (C) sign and indorse any invoices,
freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments. verifications,
notices and other documents in connection with any of the
Collateral; (D) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (E) defend any
suit, action or proceeding brought against Holdings with respect to
any Collateral; (F) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such
discharges or releases as the Administrative Agent may reasonably
deem appropriate; (G) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such
Copyright, Patent or Trademark pertains), throughout the world for
such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (H)
generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and
completely as though the Administrative Agent were the absolute
owner thereof for all purposes, and do, at the Administrative
Agent's option and Holdings' expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems
necessary to protect, preserve or realize upon the Collateral and
the Agents' and the Lenders' security interests therein and to
effect the intent of this Agreement, all as fully and effectively as
Holdings might do.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
6.1(b) If Holdings fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
6.1(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this subsection 6.1,
together with interest thereon at a rate per annum equal to the rate per
annum at which interest would then be payable on past due Base Rate Loans
under the Credit Agreement, from the date of payment by the Administrative
Agent to the date reimbursed by Holdings, shall be payable by Holdings to
the Administrative Agent on demand.
6.1(d) Holdings hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
14
6.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody. safekeeping and physical preservation of the
Collateral in its possession. under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of Holdings or any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof The powers conferred on the
Agents and the Lenders hereunder are solely to protect the Agents' and the
Lenders' interests in the Collateral and shall not impose any duty upon any
Agents or Lenders to exercise any such powers. The Agents and the Lenders shall
be accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to Holdings for any act or failure to
act hereunder, except for their own gross negligence or willful misconduct.
6.3 Execution of Financing Statements. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, Holdings authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of Holdings in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
6.4 Authority of Administrative Agent. Holdings acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as among the Agents and the Lenders, be governed by
the Credit Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as among the Agents and Holdings, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
Holdings shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of the Credit Agreement.
7.2 Notices. All notices, requests and demands to or upon the Agents
or Holdings hereunder shall be effected in the manner provided for in subsection
10.2 of the Credit Agreement.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
15
exercising, on the part of any of the Agents or Lenders, any right, power or
privilege hereunder shall operate as a waiver thereof No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by any of the Agents or Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, on behalf of the other Agents and the Lenders, would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative. may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
7.4(a) Holdings agrees to pay or reimburse each of the Lenders
and the Agents for all its reasonable costs and expenses incurred in
collecting against Holdings or otherwise enforcing or preserving any
rights under this Agreement and the other Credit Documents to which
Holdings is a party, including, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent and of counsel to
each of the other Agents and Lenders.
7.4(b) Holdings agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
7.4(c) Holdings agrees to pay, and to save the Agents and the
Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent Holdings would be required to do so pursuant to
subsection 10.5 of the Credit Agreement.
7.4(d) The agreements in this subsection 7.4 shall survive
repayment of the Obligations and all other amounts payable under the
Credit Agreement and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of Holdings and shall inure to the benefit of the Agents
and the Lenders and their successors and assigns; provided that Holdings may not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.
7.6 Set-Off. Holdings hereby irrevocably authorizes each of the
Agents and Lenders at any time and from time to time pursuant to subsection
10.7(a) of the Credit Agreement shall have occurred and be continuing, without
notice to Holdings, any such notice being expressly waived by Holdings, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Agent or Lender to or for the credit or the account of the
Borrower, or any part thereof in such amounts as such Agent or Lender may elect,
against and on account of the obligations and liabilities of Holdings to such
Agent or Lender hereunder and claims of every nature and description of
16
such Agent or Lender against Holdings, in any currency, whether arising
hereunder, under the Credit Agreement, any other Credit Document or otherwise,
as such Agent or Lender may elect, whether or not any Agent or Lender has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. Each of the Agents and Lenders shall notify Holdings
promptly of any such set-off and the application made by such Agent or Lender of
the proceeds thereof, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Agent and
Lender under this subsection 7.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Agent or
Lender may have.
7.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
7.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Agents and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or Lenders relative to
subject matter hereof and thereof not expressly set forth or referred to herein,
the Credit Agreement or in the other Credit Documents.
7.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. HOLDINGS HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
7.12(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENT AND
THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
7.12(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW
17
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
7.12(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO HOLDINGS AT ITS ADDRESS REFERRED TO IN SUBSECTION 7.2 OR AT
SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
7.12(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
7.12(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
7.13 Acknowledgements. Holdings hereby acknowledges that:
7.13(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to
which it is a party;
7.13(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to the Holdings arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between Holdings, on the one hand, and the Agents and
Lenders, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
7.13(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among Agents, among the Agents and/or the Lenders or
among the Borrower and the Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. HOLDINGS AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to
survive such termination)
18
of the Administrative Agent and Holdings hereunder shall terminate, all
without delivery of any instrument or performance of any act by any party,
and all rights to the Collateral shall revert to Holdings and the
Administrative Agent shall deliver to Holdings any Collateral held by the
Administrative Agent hereunder, and execute and deliver to Holdings such
documents as Holdings shall reasonably request to evidence such
termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by Holdings in a transaction permitted by the Credit
Agreement, then the Administrative Agent. at the request and sole expense
of Holdings, shall execute and deliver to Holdings all releases or other
documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral.
[Signature page follows]
19
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By: _________________________________
Name:
Title:
Address for Notices:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________________
Phone: (000) 000-0000
Fax: (212) ___-_______
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA NT & SA, AS ADMINISTRATIVE AGENT
By: ___________________________
Name:
Title:
20
Schedule 1
DESCRIPTION OF PLEDGED STOCK
Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
------ -------------- --------------------- -------------
Pledged Notes:
Issuer Payee Principal Amount
------ ----- ----------------
21
Schedule 2
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
-------------------------------
[List each office where a financing statement is to be filed]
Patent and Trademark Filings
----------------------------
[List all filings]
Actions with respect to Pledged Stock
-------------------------------------
Other Actions
-------------
[Describe other actions to be taken]
22
Schedule 3
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Holdings Location
-------- --------
23
Schedule 4
COPYRIGHTS AND COPYRIGHT LICENSES
o NONE
PATENTS AND PATENT LICENSES
o NONE
TRADEMARKS AND TRADEMARK LICENSES
o NONE
24
Schedule 5
CONTRACTS WITH GOVERNMENT AUTHORITY
25
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Parent Pledge
and Security Agreement dated as of April 30, 1997 (the "Agreement"), made by the
parties thereto for the benefit of Bank of America NT & SA, as Administrative
Agent. The undersigned agrees for the benefit of the Administrative Agent and
the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.7(a) of
the Agreement.
3. The terms of Sections 5.1(a) and 5.5 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.1(a) or 5.5 of the Agreement.
[NAME OF ISSUER]
____________________________________________
Name: ______________________________________
Title:______________________________________
Address for Notices:
____________________________________________
____________________________________________
Fax: ______________________________________
26
EXHIBIT B-4
TO
CREDIT AGREEMENT
================================================================================
BORROWER PLEDGE AND SECURITY AGREEMENT
made by
L-3 COMMUNICATIONS CORPORATION
in favor of
BANK OF AMERICA NT & SA,
as Administrative Agent
Dated as of April 30, 1997
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS .................................................... 1
1.1 Definitions ........................................................ 1
1.2 Other Definitional Provisions ...................................... 5
SECTION 2. GRANT OF SECURITY INTEREST ....................................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES ................................... 6
3.1 Title; No Other Liens .............................................. 6
3.2 Perfected First Priority Liens ..................................... 6
3.3 Chief Executive Office ............................................. 7
3.4 Inventory and Equipment ............................................ 7
3.5 Pledged Securities ................................................. 7
3.6 Farm Products ...................................................... 7
3.7 Receivables ........................................................ 7
3.8 Contracts .......................................................... 7
3.9 Intellectual Property .............................................. 8
SECTION 4. COVENANTS ........................................................ 9
4.1 Delivery of Instruments and Chattel Paper .......................... 9
4.2 Maintenance of Insurance ........................................... 9
4.3 Payment of Obligations ............................................. 9
4.4 Maintenance of Perfected Security Interest; Further Documentation .. 9
4.5 Changes in Locations, Name, etc. ................................... 10
4.6 Notices ............................................................ 10
4.7 Pledged Securities ................................................. 10
4.8 Receivables ........................................................ 11
4.9 Contracts .......................................................... 12
4.10 Intellectual Property .............................................. 13
SECTION 5. REMEDIAL PROVISIONS .............................................. 14
5.1 Certain Matters Relating to Receivables ............................ 14
5.2 Communications with Obligors; Borrower Remains Liable .............. 16
5.3 Pledged Stock ...................................................... 16
5.4 Proceeds to be Turned Over To Administrative Agent ................. 17
5.5 Application of Proceeds ............................................ 17
5.6 Code and Other Remedies ............................................ 18
5.7 Registration Rights ................................................ 18
5.8 Waiver Deficiency .................................................. 19
SECTION 6. THE ADMINISTRATIVE AGENT ......................................... 19
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. ....... 19
6.2 Duty of Administrative Agent ....................................... 21
6.3 Execution of Financing Statements .................................. 22
6.4 Authority of Administrative Agent .................................. 22
SECTION 7. MISCELLANEOUS .................................................... 22
7.1 Amendments in Writing .............................................. 22
Page
----
7.2 Notices ............................................................ 22
7.3 No Waiver by Course of Conduct; Cumulative Remedies ................ 22
7.4 Enforcement Expenses; Indemnification .............................. 22
7.5 Successors and Assigns ............................................. 23
7.6 Set-Off ............................................................ 23
7.7 Counterparts ....................................................... 23
7.8 Severability ....................................................... 24
7.9 Section Headings ................................................... 24
7.10 Integration ........................................................ 24
7.11 GOVERNING LAW ...................................................... 24
7.12 SUBMISSION TO JURISDICTION; WAIVERS ................................ 24
7.13 Acknowledgements ................................................... 25
7.14 WAIVER OF JURY TRIAL ............................................... 25
7.15 Releases ........................................................... 25
7.16 Conflict ........................................................... 26
ii
FORM OF
BORROWER PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of April 30, 1997, made by
L-3 Communications Corporation, a Delaware corporation (the "Borrower"), in
favor of Bank of America NT & SA ("BOA") as Administrative Agent (in such
capacity, the "Administrative Agent") for the banks and other financial
institutions (collectively, the "Lenders") from time to time parties to the
Credit Agreement, dated as of April 30, 1997 (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lenders, Xxxxxx Commercial Paper Inc. ("LCPI"), as documentation
agent (in such capacity, the "Documentation Agent"), LCPI as syndication agent
(in such capacity, the "Syndication Agent"; and together with the Documentation
Agent and Administrative Agent, the "Agents"), LCPI as arranger (in such
capacity, the "Arranger") and the Administrative Agent.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower under the Credit Agreement that the Borrower shall have executed
and delivered this Agreement to the Administrative Agent for the ratable benefit
of the Lenders and the Agents;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, Borrower hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders and the Agents, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
1.1(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Deposit
Accounts, Documents, Equipment, Farm Products, Fixtures, Instruments and
Inventory.
1.1(b) The following terms shall have the following meanings:
1
"Agreement": the Borrower Pledge and Security Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 2.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in subsections 5.1 or 5.4.
"Contracts": all contracts and agreements to which the Borrower is a
party on the date hereof or becomes a party subsequent to the date hereof, as
the same may be amended, supplemented or otherwise modified from time to time,
including, without limitation, (i) all rights of the Borrower to receive moneys
due and to become due to it thereunder or in connection therewith, (ii) all
rights of the Borrower to damages arising thereunder and (iii) all rights of the
Borrower to perform and to exercise all remedies thereunder.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed on Schedule 5), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming the Borrower as
licensor or licensee (including, without limitation, those listed on Schedule
5), granting any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell materials derived
from any Copyright.
"General Intangibles": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the State
of New York on the date hereof and, in any event, including, without limitation,
with respect to the Borrower, all contracts, agreements, instruments and
indentures in any form, and portions thereof, to which the Borrower is a party
or under which the Borrower has any right, title or interest or to which the
Borrower or any property of the Borrower is subject, as the same may from time
to time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of the Borrower to receive moneys due and to become
due to it thereunder or in connection therewith, (ii) all rights of the Borrower
to damages arising thereunder and (iii) all rights of the Borrower to perform
and to exercise all remedies thereunder, in each case to the extent the grant by
the Borrower of a security interest pursuant to this Agreement in its right,
title and interest in such contract, agreement, instrument or indenture is not
prohibited by such contract, agreement, instrument or indenture without the
consent of any other party thereto, would not give any other party to such
contract, agreement, instrument or indenture the right to terminate its
obligations thereunder, or is permitted with consent if all necessary consents
to such grant of a security interest have been obtained from the other parties
thereto (it being understood that the foregoing shall not be deemed to obligate
the Borrower to obtain such consents); provided, that the foregoing limitation
shall not affect, limit, restrict or impair the grant by the Borrower of a
security interest pursuant to this Agreement in any Receivable or any money or
other amounts due or to become due under any such contract, agreement,
instrument or indenture.
2
"Government Contract": a Contract with a Government Authority, each
as listed on Schedule 6.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to
xxx at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by
the Borrower to any of its Subsidiaries.
"Investment Property": as defined in the California UCC.
"Issuers": the collective reference to each issuer of a Pledged
Security.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans and Reimbursement Obligations and all other
obligations and liabilities of the Borrower (including, without limitation, (i)
interest accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and Reimbursement Obligations and interest
accruing at the then applicable rate provided in the Credit Agreement after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding
and (ii) any exposure of any Lender under any lockbox arrangement, controlled
disbursement arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the Borrower
and/or its Subsidiaries) to the Administrative Agent or any Lender (or, in the
case of any Interest Rate Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, this Agreement, the other Credit
Documents, any Letter of Credit or any Interest Rate Agreement entered into by
the Borrower with any Lender (or any Affiliate of any Lender) or any Cash
Management Agreement entered into by the Borrower or any Subsidiary of the
Borrower with any Lender or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Administrative Agent and counsel to the Lenders that are required to be paid by
the Borrower pursuant to the terms of any of the foregoing agreements).
"Patents": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to on Schedule 5, (ii) all applications for
letters patent of the United States or any other country and all divisions,
3
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to on Schedule 5, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral, providing
for the grant by or to the Borrower of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to on Schedule 5.
"Pledged Notes": all promissory notes listed on Schedule 1, all
Intercompany Notes at any time issued to any Pledgor and all other promissory
notes issued to or held by the Borrower (other than promissory notes issued in
connection with extensions of trade credit by the Borrower in the ordinary
course of business).
"Pledged Securities": the collective reference to the Pledged Notes
and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on Schedule 1,
together with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Person that may be
issued or granted to, or held by, the Borrower while this Agreement is in
effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument or
Chattel Paper and whether or not it has been earned by performance (including,
without limitation, any Account).
"Restricted Government Contract": Government Contracts which, by
their terms, prohibit the assignment of Receivables thereunder.
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to on Schedule 5, and (ii) the right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to the Borrower of any right to use any Trademark,
including, without limitation, any of the foregoing referred to on Schedule 5.
4
1.2 Other Definitional Provisions.
1.2(a) The words "hereof," "herein", "hereto" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and Section and Schedule references are to this Agreement
unless otherwise specified.
1.2(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
1.2(c) Where the context requires, terms relating to the
Collateral or any part thereof shall refer to the Borrower's Collateral or
the relevant part thereof.
SECTION 2. GRANT OF SECURITY INTEREST
Borrower hereby assigns and transfers to the Administrative Agent,
and hereby grants to the Administrative Agent, for the ratable benefit of the
Agents and the Lenders, a security interest in, all of the following property
now owned or at any time hereafter acquired by the Borrower or in which the
Borrower now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations:
2.0(a) all Accounts;
2.0(b) all Chattel Paper;
2.0(c) all Contracts;
2.0(d) all Documents;
2.0(e) all Deposit Accounts;
2.0(f) all Equipment;
2.0(g) all Fixtures;
2.0(h) all General Intangibles;
2.0(i) all Instruments;
2.0(j) all Intellectual Property;
2.0(k) all Inventory;
2.0(l) all Investment Property;
5
2.0(m) all Pledged Securities;
2.0(n) all books and records pertaining to the Collateral; and
2.0(o) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, except as permitted by Section 9-318(4) of the
New York UCC, this Agreement shall not constitute an assignment of any Contract,
General Intangible, Patent License or Trademark License to the extent that such
Contract, General Intangible, Patent License or Trademark License, or the
instruments giving the same, would prohibit such assignment.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, Borrower
hereby represents and warrants to each of the Agents and the Lenders that:
3.1 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, the Borrower owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the
Collateral is on file or of record in any public office, except such as have
been filed in favor of the Administrative Agent, for the ratable benefit of the
Agents and the Lenders, pursuant to this Agreement or as are permitted by the
Credit Agreement.
3.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement:
3.2(a) upon completion of the filings and other actions
specified on Schedule 2 (which, in the case of all filings and other
documents referred to on said Schedule, have been delivered to the
Administrative Agent in completed and duly executed form) will constitute
valid perfected security interests in all of the Collateral in favor of
the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, as collateral security for the Obligations, enforceable in
accordance with the terms hereof against all creditors of the Borrower and
any Persons purporting to purchase any Collateral from the Borrower,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and
3.2(b) are prior to all other Liens on the Collateral in
existence on the date hereof except for unrecorded Liens and other Liens
or permitted by the Credit Agreement which have priority over the Liens on
the Collateral by operation of law.
6
3.3 Chief Executive Office. On the date hereof, the Borrower's
jurisdiction of organization and the location of the Borrower's chief executive
office is specified on Schedule 3.
3.4 Inventory and Equipment. On the date hereof, the Inventory and
the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 4.
3.5 Pledged Securities.
3.5(a) The shares of Pledged Stock pledged by the Borrower
hereunder constitute all the issued and outstanding shares of all classes
of the Capital Stock of each Issuer owned by the Borrower.
3.5(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
3.5(c) Each of the Pledged Notes constitutes the legal, valid
and binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
3.5(d) The Borrower is the record and beneficial owner of, and
has good and marketable title to, the Pledged Securities pledged by it
hereunder, free of any and all Liens or options in favor of, or claims of,
any other Person, except the security interest created by this Agreement
and other Liens permitted by the Credit Agreement which have priority by
operation of law.
3.6 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
3.7 Receivables.
3.7(a) Except as set forth on Schedule 6 hereto, none of the
obligors on any material Receivable is a Governmental Authority.
3.7(b) The amounts represented by the Borrower to the Lenders
from time to time as owing to the Borrower in respect of the Receivables
will at such times be accurate in all material respects.
3.8 Contracts.
3.8(a) Each Contract is in full force and effect and
constitutes a valid and legally enforceable obligation of the parties
thereto, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
7
3.8(b) Except as set forth on Schedule 4.5 to the Credit
Agreement, no consent or authorization of, filing with or other act by or
in respect of any Governmental Authority is required in connection with
the execution, delivery, performance, validity or enforceability of any of
the Contracts by any party thereto other than those which have been duly
obtained, made or performed, are in full force and effect and do not
subject the scope of any such Contract to any material adverse limitation,
either specific or general in nature.
3.8(c) Neither the Borrower nor (to the best of the Borrower's
knowledge) any of the other parties to the Contracts is in default in the
performance or observance of any of the terms thereof in any manner that,
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
3.8(d) The right, title and interest of the Borrower in, to
and under the Contracts are not subject to any defenses, offsets,
counterclaims or claims that, in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
3.8(e) No amount payable to the Borrower under or in
connection with any Contract is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Administrative Agent.
3.8(f) Except as set forth on Schedule 6 hereto, none of the
parties to any Contract is a Governmental Authority.
3.9 Intellectual Property.
3.9(a) The Borrower owns no material Intellectual Property
other than as set forth on Schedule 5.
3.9(b) On the date hereof, all material Intellectual Property
is valid, subsisting, unexpired and enforceable, has not been abandoned
and does not infringe the intellectual property rights of any other
Person, except as could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
3.9(c) Except as set forth in Schedule 5, on the date hereof,
none of the material Intellectual Property is the subject of any licensing
or franchise agreement pursuant to which the Borrower is the licensor or
franchisor.
3.9(d) No holding, decision or judgment has been rendered by
any Governmental Authority which would limit, cancel or question the
validity of, or the Borrower's ownership interests in, any Intellectual
Property in any respect that could reasonably be expected to have a
Material Adverse Effect.
3.9(e) No action or proceeding is pending, or, to the
knowledge of the Borrower, threatened, on the date hereof (i) seeking to
limit, cancel or question the validity of any material Intellectual
Property or the Borrower's ownership interest therein, or (ii) which, if
adversely determined, would have a material adverse effect on the value of
any Intellectual Property.
8
SECTION 4. COVENANTS
Borrower covenants and agrees with the Agents and the Lenders that,
from and after the date of this Agreement until the Obligations shall have been
paid in full, no Letter of Credit shall be outstanding and the Commitments shall
have terminated:
4.1 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
promptly delivered to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant to
this Agreement.
4.2 Maintenance of Insurance.
4.2(a) The Borrower will maintain, with financially sound and
reputable companies, insurance policies as required by subsection 6.5 of
the Credit Agreement.
4.2(b) All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the
Administrative Agent of written notice thereof, (ii) name the
Administrative Agent as insured party or loss payee, (iii) if reasonably
requested by the Administrative Agent, include a breach of warranty clause
and (iv) be reasonably satisfactory in all other respects to the
Administrative Agent.
4.2(c) The Borrower shall deliver to the Agents and the
Lenders a report of a reputable insurance broker with respect to such
insurance during the month of December in each calendar year and such
supplemental reports with respect thereto as the Administrative Agent may
from time to time reasonably request.
4.3 Payment of Obligations. The Borrower will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if the amount or validity thereof is
currently being contested in good faith by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of the
Borrower and such proceedings could not reasonably be expected to result in the
sale, forfeiture or loss of any material portion of the Collateral or any
interest therein.
4.4 Maintenance of Perfected Security Interest; Further
Documentation.
4.4(a) The Borrower shall maintain the security interest
created by this Agreement as a perfected security interest having at least
the priority described in subsection 3.3 and shall defend such security
interest against the claims and demands of all Persons whomsoever.
4.4(b) The Borrower will furnish to the Agents and the Lenders
from time to time statements and schedules further identifying and
describing the Collateral and such other
9
reports in connection with the Collateral as the Administrative Agent may
reasonably request, all in reasonable detail.
4.4(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the
Borrower, the Borrower will promptly and duly execute and deliver, and
have recorded, such further instruments and documents and take such
further actions as the Administrative Agent may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted, including, without limitation,
the filing of any financing or continuation statements under the Uniform
Commercial Code (or other similar laws) in effect in any jurisdiction with
respect to the security interests created hereby.
4.5 Chances in Locations, Name, etc. The Borrower will not, except
upon 15 days' prior written notice to the Administrative Agent and delivery to
the Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 4 showing any additional
location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 4;
(ii) change the location of its chief executive office from
that referred to in Section 3.4; or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Administrative Agent
in connection with this Agreement would become misleading.
4.6 Notices. The Borrower will advise the Agents and the Lenders
promptly, in reasonable detail, of:
4.6(a) any Lien (other than security interests created hereby
or Liens permitted under the Credit Agreement) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and
4.6(b) of the occurrence of any other event of which it is
aware which could reasonably be expected to have a material adverse effect
on the enforceability, or perfection or priority of, the security
interests purported to be created hereby.
4.7 Pledged Securities.
4.7(a) If the Borrower shall become entitled to receive or
shall receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or
rights in respect of the Capital Stock of any Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange
10
for, any shares of the Pledged Stock, or otherwise in respect thereof, the
Borrower shall accept the same as the agent of the Agents and the Lenders,
hold the same in trust for the Agents and the Lenders and deliver the same
forthwith to the Administrative Agent in the exact form received, duly
indorsed by the Borrower to the Administrative Agent, if required,
together with an undated stock power covering such certificate duly
executed in blank by the Borrower and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent,
subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Securities
upon the liquidation or dissolution of any Issuer shall be paid over to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution of
capital shall be made on or in respect of the Pledged Securities or any
property shall be distributed upon or with respect to the Pledged
Securities pursuant to the recapitalization or reclassification of the
capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected
security interest in favor of the Administrative Agent, be delivered to
the Administrative Agent to be held by it hereunder as additional
collateral security (or except as provided in the Credit Agreement) for
the Obligations. Except as provided in the Credit Agreement, if any sums
of money or property so paid or distributed in respect of the Pledged
Securities under circumstances described in this Section 4.7(a) shall be
received by the Borrower, the Borrower shall, until such money or property
is paid or delivered to the Administrative Agent, hold such money or
property in trust for the Lenders, segregated from other funds of the
Borrower, as additional collateral security for the Obligations.
4.7(b) Except as provided in the Credit Agreement, without the
prior written consent of the Administrative Agent, the Borrower will not
(i) vote to enable, or take any other action to permit, any Issuer to
issue any stock or other equity securities of any nature or to issue any
other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any
Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or
grant any option with respect to, the Pledged Securities or Proceeds
thereof (except pursuant to a transaction expressly permitted by the
Credit Agreement), (iii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of the
Pledged Securities or Proceeds thereof, or any interest therein, except
for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of the
Borrower or the Administrative Agent to sell, assign or transfer any of
the Pledged Securities or Proceeds thereof.
4.8 Receivables.
4.8(a) Other than in the ordinary course of business, the
Borrower will not (i) grant any extension of the time of payment of any
Receivable, (ii) compromise or settle any Receivable for less than the
full amount thereof, (iii) release, wholly or partially, any Person liable
for the payment of any Receivable, (iv) allow any credit or discount
whatsoever on any Receivable or (v) amend, supplement or modify any
Receivable in any manner that could adversely affect the value thereof.
4.8(b) The Borrower will deliver to the Administrative Agent a
copy of each material demand, notice or document received by it that
questions or calls into doubt the validity or enforceability of more than
5% of the aggregate amount of the then outstanding Receivables.
11
4.8(c) Upon the written request of the Required Lenders upon
the occurrence and during the continuance of an Event of Default, the
Borrower hereby authorizes the Administrative Agent upon prior written
notice to the Borrower to (x) file a Notice of Assignment pursuant to the
provisions of the Assignment of Claims Act of 1940, as amended, with the
appropriate officer or officers of the appropriate Government Authority
with respect to each Government Contract (other than Restricted Government
Contracts) and (y) take all such other action as the Administrative Agent
reasonably deems necessary to comply with the provisions of the Assignment
of Claims Act of 1940, as amended, and the Borrower shall, upon written
request of the Administrative Agent, promptly use its best efforts to have
such Notices of Assignment executed by the appropriate officer or officers
of the appropriate Government Authority; (iv) with respect to each
contract, agreement or transaction pursuant to which any State or any
political subdivision thereof is a party, execute and deliver all notices
which are required under, and comply in all other respects with, the laws
of such State to ensure that the Administrative Agent has a valid and
perfected first priority security interest in such contract, agreement or
transaction to the extent required by the terms of the Credit Agreement;
and (v) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be
necessary, or as the Administrative Agent may reasonably request, in order
to perfect and preserve the pledge, assignment and security interest
granted or purported to be granted hereby.
4.9 Contracts.
4.9(a) The Borrower will perform and comply in all material
respects with all its obligations under its material Contracts.
4.9(b) The Borrower will not amend, modify, terminate or waive
any provision of any material Contract in any manner which could
reasonably be expected to materially adversely affect the value of such
material Contract as Collateral.
4.9(c) The Borrower will exercise promptly and diligently each
and every right which it may have under each material Contract (other than
any right of termination).
4.9(d) The Borrower will deliver to the Administrative Agent a
copy of each material demand, notice or document received by it relating
in any way to any material Contract that questions the validity or
enforceability of such material Contract.
4.9(e) The Borrower represents and warrants that the
Government Contracts referenced on Schedule 6 constitute all Government
Contracts having a value equal to or in excess of $1.0 million to which
the Borrower is a party on the date hereof.
4.9(f) The Borrower will, when required under Section 6.13 of
the Credit Agreement, at its own expense, make, execute, endorse,
acknowledge, file and/or deliver to the Administrative Agent, the GC
Notice Recipients with respect to any Government Contract or any other
Person from time to time such documents, instruments, certificates or
reports and take such further steps relating to the Collateral consisting
of the Receivables in respect of Government Contracts which (i) the
Administrative Agent deems necessary to perfect, preserve or protect its
12
security interest in such Collateral or (ii) shall be necessary to comply
with the provisions of 31 U.S.C. ss. 3727 or 41 U.S.C. ss. 15.
4.9(g) The Borrower hereby covenants and agrees that it will
not enter any Restricted Government Contracts unless the Borrower
determines in good faith that it must agree to a prohibition on the
assignment of Receivables arising under such Government Contract in order
to obtain such Government Contract and gives the Administrative Agent
written notice that it has entered into such Restricted Government
Contract.
4.10 Intellectual Property.
4.10(a) The Borrower (either itself or through licensees) will
(i) continue to use each material Trademark on each and every trademark
class of goods applicable to its current line as reflected in its current
catalogs, brochures and price lists in order to maintain such Trademark in
full force free from any claim of abandonment for non-use, except where
the failure to do so could not, individually or in the aggregate, be
expected to have a Material Adverse Effect, (ii) maintain as in the past
the quality of products and services offered under such material
Trademark, (iii) use such material Trademark with the appropriate notice
of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any xxxx which is confusingly
similar or a colorable imitation of such material Trademark unless the
Administrative Agent, for the ratable benefit of the Lenders, shall obtain
a perfected security interest in such xxxx pursuant to this Agreement, (v)
not do any act or knowingly omit to do any act whereby such material
Trademark may become invalidated or impaired in any way, and (vi) use
reasonable efforts to prevent any licensee or sublicensee thereof from
doing any act or knowingly omitting to do any act whereby such trademark
may become invalidated or impaired in any way.
4.10(b) The Borrower will not do any act, or omit to do any
act, whereby any material Patent may become forfeited, abandoned or
dedicated to the public and will use reasonable efforts to prevent any
sublicensee from doing any act, or omitting to do any act, whereby any
material Patent may become forfeited, abandoned or dedicated to the
public.
4.10(c) The Borrower will not do any act or knowingly omit to
do any act and will use reasonable efforts to prevent any licensee or
sublicensee thereof from doing any act or knowingly omitting to do any act
whereby any material portion of the material Copyrights may become
invalidated or otherwise impaired. The Borrower will not do any act and
will use reasonable efforts to prevent any sublicensee from doing any act
whereby any material portion of the Copyrights may fall into the public
domain.
4.10(d) The Borrower (either itself or through licensees) will
not do any act that knowingly uses any material Intellectual Property to
infringe the intellectual property rights of any other Person.
4.10(e) The Borrower will notify the Administrative Agent and
the Lenders immediately if it knows that any application or registration
relating to any material Intellectual Property may become forfeited,
abandoned or dedicated to the public, or of any material adverse
determination or development (including, without limitation, the
institution of, or any such
13
determination or development in, any proceeding in the United States
Patent and Trademark Office, the United States Copyright Office or any
court or tribunal in any country) regarding the Borrower's ownership of,
or the validity of, any material Intellectual Property or the Borrower's
right to register the same or to own and maintain the same.
4.10(f) Whenever the Borrower, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent
and Trademark Office, the United States Copyright Office or any similar
office or agency in any other country or any political subdivision
thereof, the Borrower shall report such filing to the Administrative Agent
within 30 Business Days after the last day of the fiscal quarter in which
such filing occurs. Upon request of the Administrative Agent, the Borrower
shall execute and deliver, and have recorded, any and all agreements,
instruments, documents, and papers as the Administrative Agent may
reasonably request to evidence the Agents' and the Lenders' security
interest in any Copyright, Patent or Trademark and the goodwill and
general intangibles of the Borrower relating thereto or represented
thereby.
4.10(g) The Borrower will take all reasonable and necessary
steps, including, without limitation, in any proceeding before the United
States Patent and Trademark Office, the United States Copyright Office or
any similar office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application (and to
obtain the relevant registration) and to maintain each registration of the
material Intellectual Property, including, without limitation, filing of
any necessary applications for renewal, affidavits of use and affidavits
of incontestability, and paying all necessary fees, except to the extent
the failure to do so could not, individually or in the aggregate, be
expected to have a Material Adverse Effect.
4.10(h) In the event that any material Intellectual Property
is infringed, misappropriated or diluted by a third party, the Borrower
shall (i) take such actions as the Borrower shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property
and (ii) if such Intellectual Property is of material economic value to
the Borrower and its Subsidiaries taken as a whole, promptly notify the
Administrative Agent after it learns thereof and xxx for infringement,
misappropriation or dilution, seek injunctive relief where appropriate and
recover any and all damages for such infringement, misappropriation or
dilution.
SECTION 5. REMEDIAL PROVISIONS
5.1 Certain Matters Relating to Receivables.
5.1(a) The Administrative Agent shall have the right to make
test verifications of the Receivables in any manner and through any medium
that it reasonably considers advisable, and the Borrower shall furnish all
such assistance and information as the Administrative Agent may require in
connection with such test verifications. At any time and from time to
time, upon the Administrative Agent's request and at the expense of the
Borrower, the Borrower shall cause independent public accountants or
others satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.
14
5.1(b) The Administrative Agent hereby authorizes the Borrower
to collect the Borrower's Receivables, subject to the Administrative
Agent's direction and control, and the Administrative Agent may curtail or
terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Administrative
Agent at any time after the occurrence and during the continuance of an
Event of Default, any payments of Receivables, when collected by the
Borrower, (i) shall be forthwith (and, in any event, within two Business
Days) deposited by the Borrower in the exact form received, duly indorsed
by the Borrower to the Administrative Agent if required, in a Collateral
Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent
for the account of the Lenders only as provided in subsection 5.5, and
(ii) until so turned over, shall be held by the Borrower in trust for the
Agents and the Lenders, segregated from other funds of the Borrower. Each
such deposit of Proceeds of Receivables shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments
included in the deposit. In addition, the Administrative Agent shall have
the right at any time, upon the occurrence and during the continuance of
an Event of Default and upon written notice to the Borrower of its
intention to do so, to require the Borrower to prepare notices of
assignment for each Government Contract for which it has not previously
delivered a notice of assignment pursuant to Section 6.13 of the Credit
Agreement and to file such notices of assignment (and any notice of
assignment delivered to the Administrative Agent pursuant to Section 6.13
of the Credit Agreement) with the appropriate contracting officer of the
appropriate Government Authority and to otherwise notify the account
debtors or obligors under any Receivables of the assignment of such
Receivables to the Administrative Agent and to direct such account debtors
or obligors to make payment of all amounts due or to become due to the
Borrower thereunder directly to the Administrative Agent and, upon such
notification and at the expense of the Borrower, to enforce collection of
any such Receivables, and to adjust, settle or compromise the amount or
payment thereof, in the same manner and to the same extent as the Borrower
might have done. After receipt by the Borrower of the notice from the
Administrative Agent referred to in the proviso to the preceding sentence,
(i) all amounts and proceeds (including instruments) received by the
Borrower in respect of the Receivables shall be received in trust for the
benefit of the Administrative Agent, the Agents, the Lenders, the Issuing
Banks and the other Holders hereunder, shall be segregated from other
funds of the Borrower and shall be forthwith paid over to the
Administrative Agent in the same form as so received (with any necessary
indorsement) to be applied to the Obligations in accordance with Section 8
of the Credit Agreement and (ii) the Borrower shall not adjust, settle or
compromise the amount or payment of any Account, release wholly or partly
any account debtor or obligor thereof, or allow any credit or discount
thereon.
5.1(c) At the Administrative Agent's request, the Borrower
shall deliver to the Administrative Agent all original and other documents
evidencing, and relating to, the agreements and transactions which gave
rise to the Receivables, including, without limitation, all original
orders, invoices and shipping receipts.
5.2 Communications with Obligors; Borrower Remains Liable.
5.2(a) The Administrative Agent in its own name or in the name
of others may at any time after the occurrence and during the continuance
of an Event of Default communicate with obligors under the Receivables and
parties to the Contracts to verify with them to the
15
Administrative Agent's satisfaction the existence, amount and terms of any
Receivables or Contracts.
5.2(b) Upon the request of the Administrative Agent at any
time after the occurrence and during the continuance of an Event of
Default, the Borrower shall notify obligors on the Receivables and parties
to the Contracts that the Receivables and the Contracts have been assigned
to the Administrative Agent for the ratable benefit of the Lenders and
that payments in respect thereof shall be made directly to the
Administrative Agent.
5.2(c) Anything herein to the contrary notwithstanding, the
Borrower shall remain liable under each of the Receivables and Contracts
to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any
agreement giving rise thereto. Neither the Administrative Agent nor any
Lender shall have any obligation or liability under any Receivable (or any
agreement giving rise thereto) or Contract by reason of or arising out of
this Agreement or the receipt by any Agent or Lender of any payment
relating thereto, nor shall any Agent or Lender be obligated in any manner
to perform any of the obligations of the Borrower under or pursuant to any
Receivable (or any agreement giving rise thereto) or Contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any
party thereunder, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or
times.
5.3 Pledged Stock.
5.3(a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the
Borrower of the Administrative Agent's intent to exercise its
corresponding rights pursuant to subsection 5.3(b), the Borrower shall be
permitted to receive all cash dividends paid in respect of the Pledged
Stock and all payments made in respect of the Pledged Notes, in each case
paid in the normal course of business of the relevant Issuer and
consistent with past practice, to the extent permitted in the Credit
Agreement, and to exercise all voting and corporate rights with respect to
the Pledged Securities; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would materially impair the
Collateral or which would result in any violation of any provision of the
Credit Agreement, this Agreement or any other Credit Document.
5.3(b) If an Event of Default shall occur and be continuing
and the Administrative Agent shall give notice of its intent to exercise
such rights to the Borrower, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds
paid in respect of the Pledged Securities and make application thereof to
the Borrower Obligations in such order as the Administrative Agent may
determine, and (ii) any or all of the Pledged Securities shall be
registered in the name of the Administrative Agent or its nominee, and the
Administrative Agent or its nominee may thereafter exercise (x) all
voting, corporate and other rights pertaining to such Pledged Securities
at any meeting of shareholders of the relevant Issuer or Issuers or
otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to
such Pledged Securities as if it were the
16
absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or upon the
exercise by the Borrower or the Administrative Agent of any right,
privilege or option pertaining to such Pledged Securities, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Securities with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the
Administrative Agent may determine), all without liability except to
account for property actually received by it, but the Administrative Agent
shall have no duty to the Borrower to exercise any such right, privilege
or option and shall not be responsible for any failure to do so or delay
in so doing.
5.3(c) The Borrower hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by the Borrower hereunder to (i)
comply with any instruction received by it from the Administrative Agent
in writing that (x) states that an Event of Default has occurred and is
continuing and (y) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from the Borrower,
and the Borrower agrees that each Issuer shall be fully protected in so
complying, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged Securities
directly to the Administrative Agent.
5.4 Proceeds to be Turned Over To Administrative Agent. In addition
to the rights of the Agents and the Lenders specified in subsection 5.1 with
respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by the Borrower consisting of cash, checks and
other near-cash items shall be held by the Borrower in trust for the Agents and
the Lenders, segregated from other funds of the Borrower, and shall, forthwith
upon receipt by the Borrower, be turned over to the Administrative Agent in the
exact form received by the Borrower (duly indorsed by the Borrower to the
Administrative Agent, if required). All Proceeds received by the Administrative
Agent hereunder shall be held by the Administrative Agent in a Collateral
Account maintained under its sole dominion and control. All Proceeds while held
by the Administrative Agent in a Collateral Account (or by the Borrower in trust
for the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in subsection 5.5.
5.5 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as required
by the Credit Agreement, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
5.6 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing
17
or relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, the Administrative Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Borrower or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of any of the Agents or Lenders or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. Any Agents or Lenders shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in the Borrower, which right
or equity is hereby waived and released. The Borrower further agrees, at the
Administrative Agent's request, to assemble the Collateral and make it available
to the Administrative Agent at places which the Administrative Agent shall
reasonably select, whether at the Borrower's premises or elsewhere. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this subsection 5.6, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agents and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Administrative Agent account for the surplus, if any, to the Borrower. To the
extent permitted by applicable law, the Borrower waives all claims, damages and
demands it may acquire against any Agents or Lenders arising out of the exercise
by them of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 15 days before such sale or other
disposition.
5.7 Registration Rights.
5.7(a) If the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to subsection
5.6, and if in the opinion of the Administrative Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the Borrower will
cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts
as may be, in the opinion of the Administrative Agent, necessary or
advisable to register the Pledged Stock, or that portion thereof to be
sold, under the provisions of the Securities Act, (ii) use its
commercially reasonable efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period
of one year from the date of the first public offering of the Pledged
Stock, or that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto. The Borrower
agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of
18
any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
5.7(b) The Borrower recognizes that the Administrative Agent
may be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view
to the distribution or resale thereof. The Borrower acknowledges and
agrees that any such private sale may result in prices and other terms
less favorable than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged
Stock for the period of time necessary to permit the Issuer thereof to
register such securities for public sale under the Securities Act, or
under applicable state securities laws, even if such Issuer would agree to
do so.
5.7(c) The Borrower agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary
to make such sale or sales of all or any portion of the Pledged Stock
pursuant to this subsection 5.7 valid and binding and in compliance with
any and all other applicable Requirements of Law. The Borrower further
agrees that a breach of any of the covenants contained in this subsection
5.7 will cause irreparable injury to the Agents and the Lenders, that the
Agents and the Lenders have no adequate remedy at law in respect of such
breach and, as a consequence. that each and every covenant contained in
this subsection 5.7 shall be specifically enforceable against the
Borrower, and the Borrower hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred under the
Credit Agreement.
5.8 Waiver; Deficiency. The Borrower waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. The Borrower shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
6.1(a) The Borrower hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the
Borrower and in the name of the Borrower or in its own name, for the
purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, the
Borrower hereby gives
19
the Administrative Agent the power and right, on behalf of the Borrower,
without notice to or assent by the Borrower, to do any or all of the
following:
(i) in the name of the Borrower or its own name, or otherwise,
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or Contract or with respect to any other Collateral and file
any claim or take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Administrative Agent for the
purpose of collecting any and all such moneys due under any Receivable or
Contract or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any and all agreements, instruments, documents
and papers as the Administrative Agent may request to evidence the Agents'
and the Lenders' security interest in such Intellectual Property and the
goodwill and general intangibles of the Borrower relating thereto or
represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in
subsection, 5.6 or 5.7, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral; and
(v)(A) direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (B) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (C)
sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (D) commence and prosecute any suits, actions or proceedings
at law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in
respect of any Collateral; (E) defend any suit, action or proceeding
brought against the Borrower with respect to any Collateral; (F) settle,
compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the
Administrative Agent may reasonably deem appropriate; (G) assign any
Copyright, Patent or Trademark (along with the goodwill of the business to
which any such Copyright, Patent or Trademark pertains), throughout the
world for such term or terms, on such conditions, and in such manner, as
the Administrative Agent shall in its sole discretion determine; and (H)
generally, sell, transfer, pledge and make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner thereof for all
purposes, and do, at the Administrative Agent's option and the Borrower's
expense, at any time, or from time to time, all acts and things which the
Administrative Agent deems necessary to protect,
20
preserve or realize upon the Collateral and the Agents' and the Lenders'
security interests therein and to effect the intent of this Agreement, all
as fully and effectively as the Borrower might do.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
6.1(b) If the Borrower fails to perform or comply with any of
its agreements contained herein, the Administrative Agent, at its option,
but without any obligation so to do, may perform or comply, or otherwise
cause performance or compliance, with such agreement.
6.1(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this subsection 6.1,
together with interest thereon at a rate per annum equal to the rate per
annum at which interest would then be payable on past due Base Rate Loans
under the Credit Agreement, from the date of payment by the Administrative
Agent to the date reimbursed by the Borrower, shall be payable by the
Borrower to the Administrative Agent on demand.
6.1(d) The Borrower hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Borrower or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agents and the Lenders hereunder are solely to protect the
Agents' and the Lenders' interests in the Collateral and shall not impose any
duty upon any Agents or Lenders to exercise any such powers. The Agents and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Borrower
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct.
6.3 Execution of Financing Statements. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, the Borrower authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of the Borrower in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
21
6.4 Authority of Administrative Agent. The Borrower acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Agents and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as among the
Agents and the Borrower, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and the Borrower shall not be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of the Credit Agreement.
7.2 Notices. All notices, requests and demands to or upon the Agents
or the Borrower hereunder shall be effected in the manner provided for in
subsection 10.2 of the Credit Agreement.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of any of the Agents or Lenders, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by any of the Agents or Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, on behalf of the other Agents and the Lenders, would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
7.4(a) The Borrower agrees to pay or reimburse each of the
Lenders and the Agents for all its reasonable costs and expenses incurred
in collecting against the Borrower or otherwise enforcing or preserving
any rights under this Agreement and the other Credit Documents to which
the Borrower is a party, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent and of
counsel to each of the other Agents and Lenders.
7.4(b) The Borrower agrees to pay, and to save the Agents and
the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
22
7.4(c) The Borrower agrees to pay, and to save the Agents and
the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant
to subsection 10.5 of the Credit Agreement.
7.4(d) The agreements in this subsection 7.4 shall survive
repayment of the Obligations and all other amounts payable under the
Credit Agreement and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Borrower and shall inure to the benefit of the
Agents and the Lenders and their successors and assigns; provided that the
Borrower may not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Administrative
Agent.
7.6 Set-Off. The Borrower hereby irrevocably authorizes each of the
Agents and Lenders at any time and from time to time pursuant to subsection
10.7(a) of the Credit Agreement shall have occurred and be continuing, without
notice to the Borrower, any such notice being expressly waived by the Borrower,
to set-off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Agent or Lender to or for the credit or the account of the
Borrower, or any part thereof in such amounts as such Agent or Lender may elect,
against and on account of the obligations and liabilities of the Borrower to
such Agent or Lender hereunder and claims of every nature and description of
such Agent or Lender against the Borrower, in any currency, whether arising
hereunder, under the Credit Agreement, any other Credit Document or otherwise,
as such Agent or Lender may elect, whether or not any Agent or Lender has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. Each of the Agents and Lenders shall notify the
Borrower promptly of any such set-off and the application made by such Agent or
Lender of the proceeds thereof, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Agent and Lender under this subsection 7.6 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Agent or Lender may have.
7.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
7.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
23
7.10. Integration. This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to subject matter hereof and thereof not expressly set forth or
referred to herein, the Credit Agreement or in the other Credit Documents.
7.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.12 SUBMISSION TO JURISDICTION; WAIVERS. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
7.12(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENT AND
THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
7.12(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
7.12(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO THE BORROWER AT ITS ADDRESS REFERRED TO IN SUBSECTION 7.2 OR
AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
7.12(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION, AND
7.12(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
24
7.13 Acknowledgements. The Borrower hereby acknowledges that:
7.13(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to
which it is a party;
7.13(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between the Borrower, on the one hand, and the Agents and
Lenders, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
7.13(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among Agents, among the Agents and/or the Lenders or
among the Borrower and the Agents and/or the Lenders.
7.14 WAIVER OF JURY TRIAL. THE BORROWER AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and the Borrower
hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral
shall revert to the Borrower and the Administrative Agent shall deliver to
the Borrower any Collateral held by the Administrative Agent hereunder,
and execute and deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Borrower in a transaction permitted by the
Credit Agreement, then the Administrative Agent, at the request and sole
expense of the Borrower, shall execute and deliver to the Borrower all
releases or other documents reasonably necessary or desirable for the
release of the Liens created hereby on such Collateral.
7.16 Conflict. In the event there is a conflict between the terms of
this Agreement and the Credit Agreement, the Credit Agreement shall control.
[Signature page follows]
25
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
L-3 COMMUNICATIONS CORPORATION
By:
-----------------------------
Name:
Title:
Address for Notices:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
----------------------
Phone:(000) 000-0000
Fax: (212) ___-_____
Accepted on behalf of the Agents
and the Lenders as of the date first
above written:
BANK OF AMERICA NT & SA, AS ADMINISTRATIVE AGENT
By:
--------------------------
Name:
Title:
26
Schedule 1
DESCRIPTION OF PLEDGED SECURITIES
Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
----------------------- ------------------ ----------------------- -------------
Pledged Notes:
Issuer Payee Principal Amount
------------------------------- -------------------------- ---------------------
27
Schedule 2
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
[List each office where a financing statement is to be filed]
Patent and Trademark Filings
[List all filings]
Actions with respect to Pledged Stock
Other Actions
[Describe other actions to be taken]
28
Schedule 3
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Borrower Location
-------- --------
29
Schedule 4
LOCATION OF INVENTORY AND EQUIPMENT
Borrower Locations
-------- ---------
30
Schedule 5
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
31
Schedule 6
GOVERNMENT CONTRACTS
32
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Borrower
Pledge and Security Agreement dated as of April 30, 1997 (the "Agreement"), made
by the parties thereto for the benefit of Bank of America NT & SA, as
Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.7(a) of
the Agreement.
3. The terms of Sections 5.3(a) and 5.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.3(a) or 5.7 of the Agreement.
[NAME OF ISSUER]
-------------------------------
Name:
--------------------------
Title:
--------------------------
Address for Notices:
-------------------------------
-------------------------------
Fax:
---------------------------
33
EXHIBIT B-5
TO
CREDIT AGREEMENT
================================================================================
SUBSIDIARY PLEDGE AND SECURITY AGREEMENT
made by
L-3 COMMUNICATIONS HOLDINGS, INC.
in favor of
BANK OF AMERICA NT & SA,
AS ADMINISTRATIVE AGENT
Dated as of ________ __, ___
================================================================================
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS ................................................ 2
1.1 Definitions ................................................. 2
1.2 Other Definitional Provisions ............................... 5
SECTION 2. GRANT OF SECURITY INTEREST ................................... 5
SECTION 3. REPRESENTATIONS AND WARRANTIES ............................... 6
3.1 Representations in Credit Agreement ......................... 6
3.2 Title; No Other Liens ....................................... 7
3.3 Perfected First Priority Liens .............................. 7
3.4 Chief Executive Office ...................................... 7
3.5 Inventory and Equipment ..................................... 7
3.6 Farm Products ............................................... 7
3.7 Pledged Securities .......................................... 7
3.8 Receivables ................................................. 8
3.9 Contracts ................................................... 8
3.10 Intellectual Property ....................................... 9
SECTION 4. COVENANTS .................................................... 9
4.1 Covenants in Credit Agreement ............................... 9
4.2 Delivery of Instruments and Chattel Paper ................... 9
4.3 Maintenance of Insurance .................................... 9
4.4 Payment of Obligations ...................................... 10
4.5 Maintenance of Perfected Security Interest; Further
Documentation ............................................... 10
4.6 Chances in Locations, Name, etc ............................. 10
4.7 Notices ..................................................... 11
4.8 Pledged Securities .......................................... 11
4.9 Receivables ................................................. 12
4.10 Contracts ................................................... 13
4.11 Intellectual Property ....................................... 14
SECTION 5. REMEDIAL PROVISIONS ......................................... 15
5.1 Certain Matters Relating to Receivables ..................... 15
5.2 Communications with Obligors; Grantors Remain Liable ........ 16
5.3 Pledged Stock ............................................... 17
5.4 Proceeds to be Turned Over To Administrative Agent .......... 18
5.5 Application of Proceeds ..................................... 18
5.6 Code and Other Remedies ..................................... 18
5.7 Registration Rights ......................................... 19
5.8 Waiver: Deficiency .......................................... 20
SECTION 6. THE ADMINISTRATIVE AGENT .................................... 20
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc . 20
6.2 Duty of Administrative Agent ................................ 22
6.3 Execution of Financing Statements ........................... 22
6.4 Authority of Administrative Agent ........................... 22
SECTION 7. MISCELLANEOUS ............................................... 23
7.1 Amendments in Writing ....................................... 23
7.2 Notices ..................................................... 23
7.3 No Waiver by Course of Conduct; Cumulative Remedies ......... 23
7.4 Enforcement Expenses; Indemnification ....................... 23
7.5 Successors and Assigns ...................................... 24
7.6 Set-Off ..................................................... 24
7.7 Counterparts ................................................ 24
7.8 Severability ................................................ 24
7.9 Section Headings ............................................ 24
7.10 Integration ................................................. 24
7.11 GOVERNING LAW ............................................... 25
7.12 SUBMISSION TO JURISDICTION; WAIVERS ......................... 25
7.13 Acknowledgements ............................................ 25
7.14 WAIVER OF JURY TRIAL ........................................ 26
7.15 Additional Grantors ......................................... 26
7.16 Releases .................................................... 26
7.17 Conflict .................................................... 26
ii
FORM OF
SUBSIDIARY PLEDGE AND SECURITY AGREEMENT
SUBSIDIARY PLEDGE AND SECURITY AGREEMENT, dated as of ________,
____, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in favor of
Bank of America NT & SA, ("BOA") as Administrative Agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions
(collectively, the "Lenders") from time to time parties to the Credit Agreement,
dated as of April 30, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among L-3 Communications Corporation, a
Delaware corporation (the "Borrower"), the Lenders, Xxxxxx Commercial Paper Inc.
("LCPI"), as documentation agent (in such capacity, the "Documentation Agent"),
LCPI as syndication agent (in such capacity, the "Syndication Agent" and
together with the Documentation Agent and Administrative Agent, the "Agents"),
LCPI as arranger (in such capacity, the "Arranger") and the Administrative
Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the several obligations of
the Lenders to make their respective extensions of credit to or for the benefit
of the Borrower under the Credit Agreement that the Grantors shall have executed
and delivered this Agreement to the Administrative Agent for the ratable benefit
of the Lenders and the Agents;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement, and to induce the
Lenders to make their respective extensions of credit to or for the benefit of
the Borrower thereunder, each Grantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders and the Agents, as follows:
1
SECTION 1. DEFINED TERMS
1.1 Definitions.
1.1(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Deposit
Accounts, Documents, Equipment, Farm Products, Fixtures, Instruments and
Inventory.
1.1(b) The following terms shall have the following meanings:
"Agreement": this Subsidiary Pledge and Security Agreement, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Collateral": as defined in Section 2.
"Collateral Account": any collateral account established by
the Administrative Agent as provided in subsection 5.1 or 5.4.
"Contracts": all contracts and agreements to which the
Borrower is a party on the date hereof or becomes a party subsequent to
the date hereof, as the same may be amended, supplemented or otherwise
modified from time to time, including, without limitation, (i) all rights
of any Grantor to receive moneys due and to become due to it thereunder or
in connection therewith, (ii) all rights of any Grantor to damages arising
thereunder and (iii) all rights of any Grantor to perform and to exercise
all remedies thereunder.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed on Schedule 5), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings
and applications in the United States Copyright Office, and (ii) the right
to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee (including, without limitation, those listed on
Schedule 5), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles": all "general intangibles" as such term
is defined in Section 9-106 of the Uniform Commercial Code in effect in
the State of New York on the date hereof and, in any event, including,
without limitation, with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and portions thereof,
to which such Grantor is a party or under which such Grantor has any
right, title or interest or to which such Grantor or any property of such
Grantor is subject, as the same may from time to time be amended,
supplemented or otherwise modified, including, without limitation, (i) all
rights of such Grantor to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all
2
rights of such Grantor to damages arising thereunder and (iii) all rights
of such Grantor to perform and to exercise all remedies thereunder, in
each case to the extent the grant by such Grantor of a security interest
pursuant to this Agreement in its right, title and interest in such
contract, agreement, instrument or indenture is not prohibited by such
contract, agreement, instrument or indenture without the consent of any
other party thereto, would not give any other party to such contract,
agreement, instrument or indenture the right to terminate its obligations
thereunder, or is permitted with consent if all necessary consents to such
grant of a security interest have been obtained from the other parties
thereto (it being understood that the foregoing shall not be deemed to
obligate such Grantor to obtain such consents); provided, that the
foregoing limitation shall not affect, limit, restrict or impair the grant
by such Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any
such contract, agreement, instrument or indenture.
"Government Contract": a Contract with a Government Authority,
each as listed on Schedule 6.
"Holdings": L-3 Communications Holdings, Inc.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to Holdings, the Borrower or any of their respective
Subsidiaries.
"Investment Property": as defined in the California UCC.
"Issuers": the collective reference to each issuer of a
Pledged Security.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, (i) interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and (ii) any exposure
of any Lender under any lockbox arrangement, controlled disbursement
arrangement, checking accounts or other similar arrangements
(collectively, "Cash Management Agreements") with or on behalf of the
Borrower and/or its Subsidiaries) to the Administrative Agent or any
Lender (or, in the case of any Interest Rate Agreement referred to below,
any Affiliate of any Lender), whether direct or indirect, absolute
3
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, this Agreement, the other Credit Documents, any Letter of
Credit or any Interest Rate Agreement entered into by the Borrower with
any Lender (or any Affiliate of any Lender) or any Cash Management
Agreement entered into by the Borrower or any Subsidiary of the Borrower
with any Lender or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent and counsel to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and
extensions thereof and all goodwill associated therewith, including,
without limitation, any of the foregoing referred to on Schedule 5, (ii)
all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part
thereof, including, without limitation, any of the foregoing referred to
on Schedule 5, and (iii) all rights to obtain any reissues or extensions
of the foregoing.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture,
use or sell any invention covered in whole or in part by a Patent,
including, without limitation, any of the foregoing referred to on
Schedule 5.
"Pledged Notes": all promissory notes listed on Schedule 1,
all Intercompany Notes at any time issued to any Pledgor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"Pledged Securities": the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on
Schedule 1, together with any other shares, stock certificates, options or
rights of any nature whatsoever in respect of the Capital Stock of any
Person that may be issued or granted to, or held by, any Grantor while
this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Securities, collections
thereon or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Restricted Government Contract": Government Contracts which,
by their terms, prohibit the assignment of Receivables thereunder.
4
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications
in connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to on Schedule 5, and (ii) the
right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
on Schedule 5.
1.2 Other Definitional Provisions.
1.2(a) The words "hereof," "herein", "hereto" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and Section and Schedule references are to this Agreement
unless otherwise specified.
1.2(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
1.2(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall
refer to such Grantor's Collateral or the relevant part thereof.
SECTION 2. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative
Agent, and hereby grants to the Administrative Agent, for the ratable benefit of
the Agents and the Lenders, a security interest in, all of the following
property now owned or at any time hereafter acquired by such Grantor or in which
such Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations:
2.0(a) all Accounts;
2.0(b) all Chattel Paper;
2.0(c) all Contracts;
2.0(d) all Deposit Accounts;
5
2.0(e) all Documents;
2.0(f) all Equipment;
2.0(g) all Fixtures;
2.0(h) all General Intangibles;
2.0(i) all Instruments;
2.0(j) all Intellectual Property;
2.0(k) all Inventory;
2.0(l) all Investment Property;
2.0(m) all Pledged Securities;
2.0(n) all books and records pertaining to the Collateral; and
2.0(o) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, except as permitted by Section 9-318(4) of the
New York UCC, this Agreement shall not constitute an assignment of any Contract,
General Intangible, Patent License or Trademark License to the extent that such
Contract, General Intangible, Patent License or Trademark License, or the
instruments giving the same, would prohibit such assignment.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Agents and the Lenders to make their respective
extensions of credit to or for the benefit of the Borrower thereunder, each
Grantor hereby represents and warrants to each of the Agents and the Lenders
that:
3.1 Representations in Credit Agreement. In the case of each
Grantor, the representations and warranties set forth in Section 4 of the Credit
Agreement as they relate to such Grantor, each of which is hereby incorporated
herein by reference, are true and correct, and each of the Agents and Lenders
shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty to
the Borrower's knowledge shall, for the purposes of this Section 4.1, be deemed
to be a reference to such Grantor's knowledge.
3.2 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, such Grantor owns each
6
item of the Collateral free and clear of any and all Liens or claims of others.
No financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except such as have
been filed in favor of the Administrative Agent, for the ratable benefit of the
Agents and the Lenders, pursuant to this Agreement or as are permitted by the
Credit Agreement.
3.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement:
3.3(a) upon completion of the filings and other actions
specified on Schedule 2 (which, in the case of all filings and other
documents referred to on said Schedule, have been delivered to the
Administrative Agent in completed and duly executed form) will constitute
valid perfected security interests in all of the Collateral in favor of
the Administrative Agent, for the ratable benefit of the Agents and the
Lenders, as collateral security for the Obligations, enforceable in
accordance with the terms hereof against all creditors of such Grantor and
any Persons purporting to purchase any Collateral from such Grantor,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and
3.3(b) are prior to all other Liens on the Collateral in
existence on the date hereof except for unrecorded Liens and other Liens
or permitted by the Credit Agreement which have priority over the Liens on
the Collateral by operation of law.
3.4 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office is specified on Schedule 3.
3.5 Inventory and Equipment. On the date hereof, the Inventory and
the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 4.
3.6 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
3.7 Pledged Securities.
3.7(a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes
of the Capital Stock of each Issuer owned by such Grantor.
3.7(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
3.7(c) Each of the Pledged Notes constitutes the legal, valid
and binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
7
3.7(d) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Securities pledged by it
hereunder, free of any and all Liens or options in favor of, or claims of,
any other Person, except the security interest created by this Agreement
and other Liens permitted by the Credit Agreement which have priority by
operation of law.
3.8 Receivables.
3.8(a) Except as set forth on Schedule 6 hereto, none of the
obligors on any material Receivable is a Governmental Authority.
3.8(b) The amounts represented by such Grantor to the Lenders
from time to time as owing to such Grantor in respect of the Receivables
will at such times be accurate in all material respects.
3.9 Contracts.
3.9(a) Each Contract is in full force and effect and
constitutes a valid and legally enforceable obligation of the parties
thereto, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
3.9(b) Except as set forth on Schedule 4.5 to the Credit
Agreement, no consent or authorization of, filing with or other act by or
in respect of any Governmental Authority is required in connection with
the execution, delivery, performance, validity or enforceability of any of
the Contracts by any party thereto other than those which have been duly
obtained, made or performed, are in full force and effect and do not
subject the scope of any such Contract to any material adverse limitation,
either specific or general in nature.
3.9(c) Neither such Grantor nor (to the best of such Grantor's
knowledge) any of the other parties to the Contracts is in default in the
performance or observance of any of the terms thereof in any manner that,
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
3.9(d) The right, title and interest of such Grantor in, to
and under the Contracts are not subject to any defenses, offsets,
counterclaims or claims that, in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
3.9(e) No amount payable to such Grantor under or in
connection with any Contract is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Administrative Agent.
3.9(f) Except as set forth on Schedule 6 hereto, none of the
parties to any Contract is a Governmental Authority.
3.10 Intellectual Property.
8
3.10(a) Each Grantor owns no material Intellectual Property
other than as set forth on Schedule 5.
3.10(b) On the date hereof, all material Intellectual Property
is valid, subsisting, unexpired and enforceable, has not been abandoned
and does not infringe the intellectual property rights of any other
Person, except as could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
3.10(c) Except as set forth in Schedule 5, on the date hereof,
none of the material Intellectual Property is the subject of any licensing
or franchise agreement pursuant to which such Grantor is the licensor or
franchisor.
3.10(d) No holding, decision or judgment has been rendered by
any Governmental Authority which would limit, cancel or question the
validity of, or such Grantor's ownership interests in, any Intellectual
Property in any respect that could reasonably be expected to have a
Material Adverse Effect.
3.10(e) No action or proceeding is pending, or, to the
knowledge of such Grantor, threatened, on the date hereof (i) seeking to
limit, cancel or question the validity of any Intellectual Property or
such Grantor's ownership interest therein, or (ii) which, if adversely
determined, would have a material adverse effect on the value of any
Intellectual Property.
SECTION 4. COVENANTS
Each Grantor covenants and agrees with the Agents and the Lenders
that, from and after the date of this Agreement until the Obligations shall have
been paid in full, no Letter of Credit shall be outstanding and the Commitments
shall have terminated:
4.1 Covenants in Credit Agreement. In the case of each Grantor, such
Grantor shall take, or shall refrain from taking, as the case may be, each
action that is necessary to be taken or not taken, as the case may be, so that
no Default or Event of Default is caused by the failure to take such action or
to refrain from taking such action by any of the Credit Parties.
4.2 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
promptly delivered to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant to
this Agreement.
4.3 Maintenance of Insurance.
4.3(a) Such Grantor will maintain, with financially sound and
reputable companies, insurance policies as required by subsection 6.5 of
the Credit Agreement.
4.3(b) All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the
Administrative Agent of written notice thereof, (ii) name the
Administrative
9
Agent as insured party or loss payee, (iii) if reasonably requested by the
Administrative Agent, include a breach of warranty clause and (iv) be
reasonably satisfactory in all other respects to the Administrative Agent.
4.3(c) The Borrower shall deliver to the Agents and the
Lenders a report of a reputable insurance broker with respect to such
insurance during the month of December in each calendar year and such
supplemental reports with respect thereto as the Administrative Agent may
from time to time reasonably request.
4.4 Payment of Obligations. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all material claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the Collateral,
except that no such charge need be paid if the amount or validity thereof is
currently being contested in good faith by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of
such Grantor and such proceedings could not reasonably be expected to result in
the sale, forfeiture or loss of any material portion of the Collateral or any
interest therein.
4.5 Maintenance of Perfected Security Interest; Further
Documentation.
4.5(a) Such Grantor shall maintain the security interest
created by this Agreement as a perfected security interest having at least
the priority described in subsection 3.3 and shall defend such security
interest against the claims and demands of all Persons whomsoever.
4.5(b) Such Grantor will furnish to the Agents and the Lenders
from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in
reasonable detail.
4.5(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of such
Grantor, such Grantor will promptly and duly execute and deliver, and have
recorded, such further instruments and documents and take such further
actions as the Administrative Agent may reasonably request for the purpose
of obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code (or other similar laws) in effect in any jurisdiction with
respect to the security interests created hereby.
4.6 Changes in Locations, Name, etc. Such Grantor will not, except
upon 15 days' prior written notice to the Administrative Agent and delivery to
the Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 4 showing any additional
location at which Inventory or Equipment shall be kept:
10
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 4;
(ii) change the location of its chief executive office from
that referred to in Section 3.4; or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Administrative Agent
in connection with this Agreement would become misleading.
4.7 Notices. Such Grantor will advise the Agents and the Lenders
promptly, in reasonable detail, of:
4.7(a) any Lien (other than security interests created hereby
or Liens permitted under the Credit Agreement) on any of the Collateral
which would adversely affect the ability of the Administrative Agent to
exercise any of its remedies hereunder; and
4.7(b) of the occurrence of any other event of which it is
aware which could reasonably be expected to have a material adverse effect
on the enforceability, or perfection or priority of, the security
interests purported to be created hereby.
4.8 Pledged Securities.
4.8(a) If such Grantor shall become entitled to receive or
shall receive any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or
rights in respect of the Capital Stock of any Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange for, any shares
of the Pledged Stock, or otherwise in respect thereof, such Grantor shall
accept the same as the agent of the Agents and the Lenders, hold the same
in trust for the Agents and the Lenders and deliver the same forthwith to
the Administrative Agent in the exact form received, duly indorsed by such
Grantor to the Administrative Agent, if required, together with an undated
stock power covering such certificate duly executed in blank by such
Grantor and with, if the Administrative Agent so requests, signature
guaranteed, to be held by the Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums
paid upon or in respect of the Pledged Securities upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent
to be held by it hereunder as additional collateral security for the
Obligations, and in case any distribution of capital shall be made on or
in respect of the Pledged Securities or any property shall be distributed
upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or
pursuant to the reorganization thereof, the property so distributed shall,
unless otherwise subject to a perfected security interest in favor of the
Administrative Agent, be delivered to the Administrative Agent to be held
by it hereunder as additional collateral security (or except as provided
in the Credit Agreement) for the Obligations. Except as provided in the
Credit Agreement, if any sums of money or property so paid or distributed
in respect of the Pledged Securities under circumstances described in this
Section 4.8(a) shall be received by such Grantor, such Grantor shall,
until such money or property is paid or delivered to the
11
Administrative Agent, hold such money or property in trust for the
Lenders, segregated from other funds of such Grantor, as additional
collateral security for the Obligations.
4.8(b) Except as provided in the Credit Agreement, without the
prior written consent of the Administrative Agent, such Grantor will not
(i) vote to enable, or take any other action to permit, any Issuer to
issue any stock or other equity securities of any nature or to issue any
other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any
Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or
grant any option with respect to, the Pledged Securities or Proceeds
thereof (except pursuant to a transaction expressly permitted by the
Credit Agreement), (iii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of the
Pledged Securities or Proceeds thereof, or any interest therein, except
for the security interests created by this Agreement or (iv) enter into
any agreement or undertaking restricting the right or ability of such
Grantor or the Administrative Agent to sell, assign or transfer any of the
Pledged Securities or Proceeds thereof.
4.8(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this Agreement
relating to the Pledged Securities issued by it and will comply with such
terms insofar as such terms are applicable to it, (ii) it will notify the
Administrative Agent promptly in writing of the occurrence of any of the
events described in subsection 5.8(a) with respect to the Pledged
Securities issued by it and (iii) the terms of subsections 6.3(c) and 6.7
shall apply to it, mutatis mutandis, with respect to all actions that may
be required of it pursuant to subsections 6.3(c) or 6.7 with respect to
the Pledged Securities issued by it.
4.9 Receivables.
4.9(a) Other than in the ordinary course of business, such
Grantor will not (i) grant any extension of the time of payment of any
Receivable, (ii) compromise or settle any Receivable for less than the
full amount thereof, (iii) release, wholly or partially, any Person liable
for the payment of any Receivable, (iv) allow any credit or discount
whatsoever on any Receivable or (v) amend, supplement or modify any
Receivable in any manner that could adversely affect the value thereof.
4.9(b) Such Grantor will deliver to the Administrative Agent a
copy of each material demand, notice or document received by it that
questions or calls into doubt the validity or enforceability of more than
5% of the aggregate amount of the then outstanding Receivables.
4.9(c) Upon the written request of the Required Lenders upon
the occurrence and during the continuance of an Event of Default, each
Grantors hereby authorizes the Administrative Agent upon prior written
notice to such Grantor to (x) file a Notice of Assignment pursuant to the
provisions of the Assignment of Claims Act of 1940, as amended, with the
appropriate officer or officers of the appropriate Government Authority
with respect to each Government Contract (other than Restricted Government
Contracts) and (y) take all such other action as the Administrative Agent
reasonably deems necessary to comply with the provisions of the Assignment
of Claims Act of 1940, as amended, and each Grantor shall, upon written
request of the Administrative Agent, promptly use its best efforts to have
such Notices of Assignment
12
executed by the appropriate officer or officers of the appropriate
Government Authority; (iv) with respect to each contract, agreement or
transaction pursuant to which any State or any political subdivision
thereof is a party, execute and deliver all notices which are required
under, and comply in all other respects with, the laws of such State to
ensure that the Administrative Agent has a valid and perfected first
priority security interest in such contract, agreement or transaction to
the extent required by the terms of the Credit Agreement; and (v) execute
and file such financing or continuation statements, or amendments thereto,
and such other instruments or notices, as may be necessary, or as the
Administrative Agent may reasonably request, in order to perfect and
preserve the pledge, assignment and security interest granted or purported
to be granted hereby.
4.10 Contracts.
4.10(a) Such Grantor will perform and comply in all material
respects with all its obligations under the Contracts.
4.10(b) Such Grantor will not amend, modify, terminate or
waive any provision of any material Contract in any manner which could
reasonably be expected to materially adversely affect the value of such
material Contract as Collateral.
4.10(c) Such Grantor will exercise promptly and diligently
each and every material right which it may have under each Contract (other
than any right of termination).
4.10(d) Such Grantor will deliver to the Administrative Agent
a copy of each material demand, notice or document received by it relating
in any way to any material Contract that questions the validity or
enforceability of such material Contract.
4.10(e) Each Grantor represents and warrants that (i) the
Government Contracts referenced on Schedule 6 constitute all Government
Contracts having a value equal to or in excess of $1.0 million to which
such Grantor is a party on the date hereof.
4.10(f) Each Grantor will, when required under Section 6.13 of
the Credit Agreement, at its own expense, make, execute, endorse,
acknowledge, file and/or deliver to the Administrative Agent, the GC
Notice Recipients with respect to any Government Contract or any other
Person from time to time such documents, instruments, certificates or
reports and take such further steps relating to the Collateral consisting
of the Receivables in respect of Government Contracts which (i) the
Administrative Agent deems necessary to perfect, preserve or protect its
security interest in such Collateral or (ii) shall be necessary to comply
with the provisions of 31 U.S.C. ss. 3727 or 41 U.S.C. ss. 15.
4.10(g) Each Grantor hereby covenants and agrees that it will
not enter any Restricted Government Contracts unless such Grantor
determines in good faith that it must agree to a prohibition on the
assignment of Receivables arising under such Government Contract in order
to obtain such Government Contract and gives the Administrative Agent
written notice that it has entered into such Restricted Government
Contract.
4.11 Intellectual Property.
13
4.11(a) Such Grantor (either itself or through licensees) will
(i) continue to use each material Trademark on each and every trademark
class of goods applicable to its current line as reflected in its current
catalogs, brochures and price lists in order to maintain such Trademark in
full force free from any claim of abandonment for non-use, except where
the failure to do so could not, individually or in the aggregate, be
expected to have a Material Adverse Effect, (ii) maintain as in the past
the quality of products and services offered under such material
Trademark, (iii) use such material Trademark with the appropriate notice
of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any xxxx which is confusingly
similar or a colorable imitation of such material Trademark unless the
Administrative Agent, for the ratable benefit of the Lenders, shall obtain
a perfected security interest in such xxxx pursuant to this Agreement, (v)
not do any act or knowingly omit to do any act whereby such material
Trademark may become invalidated or impaired in any way, and (vi) use
reasonable efforts to prevent any licensee or sublicensee thereof from
doing any act or knowingly omitting to do any act whereby such trademark
may become invalidated or impaired in any way.
4.11(b) Such Grantor will not do any act, or omit to do any
act, whereby any material Patent may become forfeited, abandoned or
dedicated to the public and will use reasonable efforts to prevent any
sublicensee from doing any act, or omitting to do any act, whereby any
material Patent may become forfeited, abandoned or dedicated to the
public.
4.11(c) Such Grantor will not do any act or knowingly omit to
do any act and will use reasonable efforts to prevent any licensee or
sublicensee thereof from doing any act or knowingly omitting to do any act
whereby any material portion of the material Copyrights may become
invalidated or otherwise impaired. Such Grantor will not do any act and
will use reasonable efforts to prevent any sublicensee from doing any act
whereby any material portion of the Copyrights may fall into the public
domain.
4.11(d) Such Grantor (either itself or through licensees) will
not do any act that knowingly uses any material Intellectual Property to
infringe the intellectual property rights of any other Person.
4.11(e) Such Grantor will notify the Administrative Agent and
the Lenders immediately if it knows that any application or registration
relating to any material Intellectual Property may become forfeited,
abandoned or dedicated to the public, or of any material adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, the United
States Copyright Office or any court or tribunal in any country) regarding
such Grantor's ownership of, or the validity of, any material Intellectual
Property or such Grantor's right to register the same or to own and
maintain the same.
4.11(f) Whenever such Grantor, either by itself or through
any agent, employee, licensee or designee, shall file an application for
the registration of any Intellectual Property with the United States
Patent and Trademark Office, the United States Copyright Office or any
similar office or agency in any other country or any political subdivision
thereof, such Grantor shall report such filing to the Administrative Agent
within 30 Business Days after the last day of the fiscal quarter in which
such filing occurs. Upon request of the Administrative Agent, such
14
Grantor shall execute and deliver, and have recorded, any and all
agreements, instruments, documents, and papers as the Administrative Agent
may reasonably request to evidence the Agents' and the Lenders' security
interest in any Copyright, Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby.
4.11(g) Such Grantor will take all reasonable and necessary
steps, including, without limitation, in any proceeding before the United
States Patent and Trademark Office, the United States Copyright Office or
any similar office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application (and to
obtain the relevant registration) and to maintain each registration of the
material Intellectual Property, including, without limitation, filing of
any necessary applications for renewal, affidavits of use and affidavits
of incontestability and paying all necessary fees, except to the extent
the failure to do so could not, individually or in the aggregate, be
expected to have a Material Adverse Effect.
4.11(h) In the event that any material Intellectual Property
is infringed, misappropriated or diluted by a third party, such Grantor
shall (i) take such actions as such Grantor shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property
and (ii) if such Intellectual Property is of material economic value to
the Borrower and its Subsidiaries taken as a whole, promptly notify the
Administrative Agent after it learns thereof and xxx for infringement,
misappropriation or dilution, seek injunctive relief where appropriate and
recover any and all damages for such infringement, misappropriation or
dilution.
SECTION 5. REMEDIAL PROVISIONS
5.1 Certain Matters Relating to Receivables.
5.1(a) The Administrative Agent shall have the right to make
test verifications of the Receivables in any manner and through any medium
that it reasonably considers advisable, and each Grantor shall furnish all
such assistance and information as the Administrative Agent may require in
connection with such test verifications. At any time and from time to
time, upon the Administrative Agent's request and at the expense of the
relevant Grantor, such Grantor shall cause independent public accountants
or others satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.
5.1(b) The Administrative Agent hereby authorizes each Grantor
to collect such Grantor's Receivables, subject to the Administrative
Agent's direction and control, and the Administrative Agent may curtail or
terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Administrative
Agent at any time after the occurrence and during the continuance of an
Event of Default, any payments of Receivables, when collected by any
Grantor, (i) shall be forthwith (and, in any event, within two Business
Days) deposited by such Grantor in the exact form received, duly indorsed
by such Grantor to the Administrative Agent if required, in a Collateral
Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent
for the account of the Lenders only as provided in subsection 5.5, and
(ii) until so turned over, shall be held by such Grantor in trust for the
Agents and the Lenders, segregated from other
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funds of such Grantor. Each such deposit of Proceeds of Receivables shall
be accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit. In addition, the
Administrative Agent shall have the right at any time, upon the occurrence
and during the continuance of an Event of Default and upon written notice
to such Grantor of its intention to do so, to require the Grantor to
prepare notices of assignment for each Government Contract for which it
has not previously delivered a notice of assignment pursuant to Section
6.13 of the Credit Agreement and to file such notices of assignment (and
any notice of assignment delivered to the Administrative Agent pursuant to
Section 6.13 of the Credit Agreement) with the appropriate contracting
officer of the appropriate Government Authority and to otherwise notify
the account debtors or obligors under any Receivables of the assignment of
such Receivables to the Administrative Agent and to direct such account
debtors or obligors to make payment of all amounts due or to become due to
the Grantor thereunder directly to the Administrative Agent and, upon such
notification and at the expense of the Grantor, to enforce collection of
any such Receivables, and to adjust, settle or compromise the amount or
payment thereof, in the same manner and to the same extent as the Grantor
might have done. After receipt by the Grantor of the notice from the
Administrative Agent referred to in the proviso to the preceding sentence,
(i) all amounts and proceeds (including instruments) received by the
Grantor in respect of the Receivables shall be received in trust for the
benefit of the Administrative Agent, the Agents, the Lenders, the Issuing
Banks and the other Holders hereunder, shall be segregated from other
funds of the Grantor and shall be forthwith paid over to the
Administrative Agent in the same form as so received (with any necessary
indorsement) to be applied to the Obligations in accordance with Section 8
of the Credit Agreement and (ii) the Grantor shall not adjust, settle or
compromise the amount or payment of any Account, release wholly or partly
any account debtor or obligor thereof, or allow any credit or discount
thereon.
5.1(c) At the Administrative Agent's request, each Grantor
shall deliver to the Administrative Agent all original and other documents
evidencing, and relating to, the agreements and transactions which gave
rise to the Receivables, including, without limitation, all original
orders, invoices and shipping receipts.
5.2 Communications with Obligors; Grantors Remain Liable.
5.2(a) The Administrative Agent in its own name or in the name
of others may at any time after the occurrence and during the continuance
of an Event of Default communicate with obligors under the Receivables and
parties to the Contracts to verify with them to the Administrative Agent's
satisfaction the existence, amount and terms of any Receivables or
Contracts.
5.2(b) Upon the request of the Administrative Agent at any
time after the occurrence and during the continuance of an Event of
Default, each Grantor shall notify obligors on the Receivables and parties
to the Contracts that the Receivables and the Contracts have been assigned
to the Administrative Agent for the ratable benefit of the Lenders and
that payments in respect thereof shall be made directly to the
Administrative Agent.
5.2(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables and Contracts to
observe and perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with
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the terms of any agreement giving rise thereto. Neither the Administrative
Agent nor any Lender shall have any obligation or liability under any
Receivable (or any agreement giving rise thereto) or Contract by reason of
or arising out of this Agreement or the receipt by any Agent or Lender of
any payment relating thereto, nor shall any Agent or Lender be obligated
in any manner to perform any of the obligations of any Grantor under or
pursuant to any Receivable (or any agreement giving rise thereto) or
Contract, to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take
any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be entitled
at any time or times.
5.3 Pledged Stock.
5.3(a) Unless an Event of Default shall have occurred and be
continuing and the Administrative Agent shall have given notice to the
relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to subsection 5.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged
Stock and all payments made in respect of the Pledged Notes, in each case
paid in the normal course of business of the relevant Issuer and
consistent with past practice, to the extent permitted in the Credit
Agreement, and to exercise all voting and corporate rights with respect to
the Pledged Securities; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would materially impair the
Collateral or which would result in any violation of any provision of the
Credit Agreement, this Agreement or any other Credit Document.
5.3(b) If an Event of Default shall occur and be continuing
and the Administrative Agent shall give notice of its intent to exercise
such rights to the relevant Grantor or Grantors, (i) the Administrative
Agent shall have the right to receive any and all cash dividends, payments
or other Proceeds paid in respect of the Pledged Securities and make
application thereof to the Obligations in such order as the Administrative
Agent may determine, and (ii) any or all of the Pledged Securities shall
be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its nominee may thereafter exercise (x) all
voting, corporate and other rights pertaining to such Pledged Securities
at any meeting of shareholders of the relevant Issuer or Issuers or
otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to
such Pledged Securities as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion
any and all of the Pledged Securities upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the
corporate structure of any Issuer, or upon the exercise by any Grantor or
the Administrative Agent of any right, privilege or option pertaining to
such Pledged Securities, and in connection therewith, the right to deposit
and deliver any and all of the Pledged Securities with any committee,
depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it,
but the Administrative Agent shall have no duty to any Grantor to exercise
any such right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing.
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5.3(c) Each Grantor hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by such Grantor hereunder to (i)
comply with any instruction received by it from the Administrative Agent
in writing that (x) states that an Event of Default has occurred and is
continuing and (y) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from such Grantor,
and each Grantor agrees that each Issuer shall be fully protected in so
complying, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged Securities
directly to the Administrative Agent.
5.4 Proceeds to be Turned Over To Administrative Agent. In addition
to the rights of the Agent and the Lenders specified in subsection 5.1 with
respect to payments of Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by any Grantor consisting of cash, checks and
other near-cash items shall be held by such Grantor in trust for the Agents and
the Lenders, segregated from other funds of such Grantor, and shall, forthwith
upon receipt by such Grantor, be turned over to the Administrative Agent in the
exact form received by such Grantor (duly indorsed by such Grantor to the
Administrative Agent, if required). All Proceeds received by the Administrative
Agent hereunder shall be held by the Administrative Agent in a Collateral
Account maintained under its sole dominion and control. All Proceeds while
held by the Administrative Agent in a Collateral Account (or by such Grantor in
trust for the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in subsection 5.5.
5.5 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as required
by the Credit Agreement, and any part of such funds which are not required as
collateral security for the Obligations shall be paid over from time to time by
the Administrative Agent to the Borrower or to whomsoever may be lawfully
entitled to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
5.6 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of any of the Agents or Lenders or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as it
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk. Any Agents or
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Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived and released.
Each Grantor further agrees, at the Administrative Agent's request, to assemble
the Collateral and make it available to the Administrative Agent at places which
the Administrative Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. The Administrative Agent shall apply the net proceeds of
any action taken by it pursuant to this subsection 5.6, after deducting all
reasonable costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Agents and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(1)(c) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against any Agents or Lenders arising
out of the exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 15 days before such sale
or other disposition.
5.7 Registration Rights.
5.7(a) If the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to subsection
5.6, and if in the opinion of the Administrative Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and
cause the directors and officers of such Issuer to execute and deliver,
all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register the Pledged Stock, or that portion
thereof to be sold, under the provisions of the Securities Act, (ii) use
its commercially reasonable efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period
of one year from the date of the first public offering of the Pledged
Stock, or that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto. Each Grantor
agrees to cause such Issuer to comply with the provisions of the
securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
5.7(b) Each Grantor recognizes that the Administrative Agent
may be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view
to the distribution or resale thereof. Each Grantor acknowledges and
agrees that any such private sale may result in prices and other terms
less favorable than if
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such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Administrative Agent shall be under no
obligation to delay a sale of any of the Pledged Stock for the period of
time necessary to permit the Issuer thereof to register such securities
for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
5.7(c) Each Grantor agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary
to make such sale or sales of all or any portion of the Pledged Stock
pursuant to this subsection 5.7 valid and binding and in compliance with
any and all other applicable Requirements of Law. Each Grantor further
agrees that a breach of any of the covenants contained in this subsection
5.7 will cause irreparable injury to the Agents and the Lenders, that the
Agents and the Lenders have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in
this subsection 5.7 shall be specifically enforceable against such
Grantor, and such Grantor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred under the
Credit Agreement.
5.8 Waiver; Deficiency. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
SECTION 6. THE ADMINISTRATIVE AGENT
6.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
6.1(a) Each Grantor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of such
Grantor and in the name of such Grantor or in its own name, for the
purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Administrative Agent the power and right, on
behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Receivable or Contract or with respect to any
other Collateral and file any claim or take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Receivable or
Contract or with respect to any other Collateral whenever payable;
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(ii) in the case of any Intellectual Property, execute
and deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Administrative Agent may request to
evidence the Agents' and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of
such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral, effect any repairs or any
insurance called for by the terms of this Agreement and pay all or
any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for
in subsection 5.6 or 5.7, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the
Collateral; and
(v)(A) direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (B) ask or demand for, collect,
and receive payment of and receipt for, any and all moneys, claims
and other amounts due or to become due at any time in respect of or
arising out of any Collateral; (C) sign and indorse any invoices,
freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications,
notices and other documents in connection with any of the
Collateral; (D) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (E) defend any
suit, action or proceeding brought against such Grantor with
respect to any Collateral; (F) settle, compromise or adjust any such
suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Administrative Agent may reasonably
deem appropriate; (G) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such
Copyright, Patent or Trademark pertains), throughout the world for
such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (H)
generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and
completely as though the Administrative Agent were the absolute
owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time
to time, all acts and things which the Administrative Agent deems
necessary to protect, preserve or realize upon the Collateral and
the Agents' and the Lenders' security interests therein and to
effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.
Anything in this subsection 6.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this subsection 6.1(a) unless an Event of
Default shall have occurred and be continuing.
6.1(b) If any Grantor fails to perform or comply with any of
its agreements contained herein, the Administrative Agent, at its option,
but without any obligation so to do, may perform or comply, or otherwise
cause performance or compliance, with such agreement.
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6.1(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this subsection 6.1,
together with interest thereon at a rate per annum equal to the rate per
annum at which interest would then be payable on past due Base Rate Loans
under the Credit Agreement, from the date of payment by the Administrative
Agent to the date reimbursed by the relevant Grantor, shall be payable by
such Grantor to the Administrative Agent on demand.
6.1(d) Each Grantor hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
6.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Agents and the Lenders hereunder are solely to protect the
Administrative Agents' and the Lenders' interests in the Collateral and shall
not impose any duty upon any Agents or Lender to exercise any such powers. The
Agents and the Lenders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
6.3 Execution of Financing Statements. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
6.4 Authority of Administrative Agent. Each Grantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Agents and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as among the
Agents and the Grantors, the Administrative Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 7. MISCELLANEOUS
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7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, restated, supplemented or otherwise modified
except in accordance with subsection 10.1 of the Credit Agreement.
7.2 Notices. All notices, requests and demands to or upon the Agents
or any Grantor hereunder shall be effected in the manner provided for in
subsection 10.2 of the Credit Agreement.
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of any of the Agents or Lenders, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by any of the Agents or Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, on behalf of other Agents and the Lenders, would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
7.4 Enforcement Expenses; Indemnification.
7.4(a) Each Grantor agrees to pay or reimburse each of the
Lenders and the Agents for all its reasonable costs and expenses incurred
in collecting against such Grantor or otherwise enforcing or preserving
any rights under this Agreement and the other Credit Documents to which
such Grantor is a party, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent and of
counsel each of the other Agents and Lenders.
7.4(b) Each Grantor agrees to pay, and to save the Agents and
the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
7.4(c) Each Grantor agrees to pay, and to save the Agents and
the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant
to subsection 10.5 of the Credit Agreement.
7.4(d) The agreements in this subsection 7.4 shall survive
repayment of the Obligations and all other amounts payable under the
Credit Agreement and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Agents and the Lenders and their
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successors and assigns; provided that no Grantor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the
prior written consent of the Administrative Agent.
7.6 Set-Off. Each Grantor hereby irrevocably authorizes each of the
Agents and Lenders at any time and from time to time pursuant to subsection
10.7(a) of the Credit Agreement shall have occurred and be continuing, without
notice to such Grantor or any other Grantor, any such notice being expressly
waived by each Grantor; to set-off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by Agent or Lender to or for the credit or
the account of such Grantor, or any part thereof in such amounts as such Agent
or Lender may elect, against and on account of the obligations and liabilities
of such Grantor to such Agent or Lender hereunder and claims of every nature and
description of such Agent or Lender against such Grantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Credit Document
or otherwise, as such Agent or Lender may elect, whether or not any Agent or
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Each of the Agents and
Lenders shall notify such Grantor promptly of any such set-off and the
application made by such Agent or Lender of the proceeds thereof, provided that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Agent and Lender under this subsection 7.6
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Agent or Lender may have.
7.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
7.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
7.10 Integration. This Agreement and the other Credit Documents
represent the agreement of the Grantors, the Agents and the Lenders with respect
to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any of the Agents or Lenders
relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Credit Documents.
7.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
24
7.12 SUBMISSION TO JURISDICTION; WAIVERS. EACH GRANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
7.12(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM
ANY THEREOF;
7.12(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
7.12(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH GRANTOR AT ITS ADDRESS REFERRED TO IN SUBSECTION 7.2 OR
AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
7.12(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
7.12(e) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
7.13 Acknowledgements. Each Grantor hereby acknowledges that:
7.13(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents to
which it is a party;
7.13(b) none of the Agents nor Lenders has any fiduciary
relationship with or duty to any Grantor arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between the Grantors, on the one hand, and the Agents and
Lenders, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor, and
7.13(c) no joint venture is created hereby or by the other
Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Agents, among the Agents and/or the Lenders
or among the Grantors and the Agents and/or the Lenders.
25
7.14 WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, EACH OF THE LENDERS AND THE AGENTS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
7.15 Additional Grantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 6.10 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex I hereto.
7.16 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral
shall revert to the Grantors and the Administrative Agent shall deliver to
such Grantor any Collateral held by the Administrative Agent hereunder,
and execute and deliver to such Grantor such documents as such Grantor
shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the
Credit Agreement, then the Administrative Agent, at the request and sole
expense of such Grantor, shall execute and deliver to such Grantor all
releases or other documents reasonably necessary or desirable for the
release of the Liens created hereby on such Collateral. At the request and
sole expense of the Borrower, a Grantor shall be released from its
obligations hereunder in the event that all the Capital Stock of such
Grantor shall be sold, transferred or otherwise disposed of in a
transaction permitted by the Credit Agreement.
7.17 Conflict. In the event there is a conflict between the terms of
this Agreement and the Credit Agreement, the Credit Agreement shall control.
[Signature page follows]
26
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
[NAMES OF SUBSIDIARIES]
By:
-----------------------
Name:
Title:
Address for Notices:
___________________________
___________________________
___________________________
Attention:
Phone:( ) ___________
Fax: ( ) ___________
Accepted on behalf of the Agents and
the Lenders as of the date first
above written:
BANK OF AMERICA NT & SA, AS ADMINISTRATIVE AGENT
By:
-------------------------------
Name:
Title:
27
Schedule 1
DESCRIPTION OF PLEDGED SECURITIES
Pledged Stock:
Issuer Class of Stock Stock Certificate No. No. of Shares
------------------- ---------------- ----------------------- ---------------
Pledged Notes:
Issuer Payee Principal Amount
------------------- ---------------- -----------------------
28
Schedule 2
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
-------------------------------
[List each office where a financing statement is to be filed]
Patent and Trademark Filings
----------------------------
[List all filings]
Actions with respect to Pledged Stock
-------------------------------------
Other Actions
-------------
[Describe other actions to be taken]
29
Schedule 3
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Location
------- --------
30
Schedule 4
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Locations
------- ---------
31
Schedule 5
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
32
Schedule 6
GOVERNMENT CONTRACTS
33
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Subsidiary
Pledge and Security Agreement dated as of _________ __, ___ (the "Agreement"),
made by the Grantors parties thereto for the benefit of Bank of America NT & SA,
as Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 4.8(a) of
the Agreement.
3. The terms of Sections 5.3(a) and 5.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 5.3(a) or 5.7 of the Agreement.
[NAME OF ISSUER]
____________________________________________
Name:_______________________________________
Title:______________________________________
Address for Notices:
____________________________________________
____________________________________________
Fax: _______________________________________
34
EXHIBIT C-1 TO
CREDIT AGREEMENT
[FORM OF MORTGAGE]
--------------------------------------------------------------------------------
REAL ESTATE MORTGAGE
among
L-3 COMMUNICATIONS CORPORATION, as Mortgagor,
and
BANK OF AMERICA NT & SA, as Administrative Agent, as Mortgagee
Dated as of April 30, 1997
--------------------------------------------------------------------------------
This document was prepared by,
and after recording should be
returned to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxx Xxxxxxxxx, Esq.
REAL ESTATE MORTGAGE
THIS REAL ESTATE MORTGAGE, dated as of the 30 day of April 1997,
between L-3 COMMUNICATIONS CORPORATION, a Delaware corporation ("Mortgagor"),
having its principal office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, and BANK OF AMERICA NT & SA, a Delaware corporation ("Mortgagee"), having
an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Administrative
Agent for the lenders (the "Lenders") under that certain Credit Agreement, dated
as of April 30, 1997 (the "Credit Agreement"), among Mortgagor, Mortgagee,
Lenders and Xxxxxx Commercial Paper Inc., as Arranger, Syndication Agent and
Documentation Agent.
W I T N E S S E T H
TO SECURE:
(i) The Principal sum of up to a maximum of TWO HUNDRED SEVENTY FIVE
MILLION ($275,000,000) as evidenced by, and all of Mortgagor's obligations
under, the promissory notes dated as of the date hereof (the "Notes") from
Mortgagor in favor of Mortgagee;
(ii) performance and observance of each term to be performed by
Mortgagor under the Credit Agreement and any of the Credit Documents;
(iii) performance and observance of each term contained in this
Mortgage and payment of all sums payable by Mortgagor to Mortgagee as
provided in this Mortgage; and
(iv) future obligations of Mortgagor to Mortgagee and future
advances by Mortgagee under the Credit Agreement.
Mortgagor hereby conveys, grants, assigns, transfers and sets over to Mortgagee
the following (collectively, the "Mortgaged Property"):
(A) the real property described in Exhibit _____ attached hereto and
made a part hereof (the "Premises");
(B) all buildings, improvements and fixtures now or hereafter
located or erected on the Premises (the "Improvements");
(C) any and all leases, underlettings and licenses of the Premises
or Improvements, or any part thereof, now existing or hereafter entered
into by Mortgagor, including, without limitation, upon the happening and
during the continuance of an Event of Default, the right to receive and
collect the rents, issues and profits derived or to be derived by
Mortgagor therefrom; and
(D) all right, title and interest of Mortgagor in and to (i) all and
singular, the tenements, hereditaments, rights of way, easements, waters,
water courses, riparian rights, appendages and appurtenances and property
rights belonging or in any way pertaining to the
2
Premises or the Improvements and (ii) all estate, right, title, claim or
demand whatsoever, either in law or in equity, in possession or
expectancy, of, in and to the Premises and the Improvements.
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, its
successors and assigns forever.
IN THE EVENT Mortgagor shall perform its obligations under the
Credit Agreement in accordance with the terms thereof and shall pay all of the
sums payable hereunder by Mortgagor, and shall comply with the terms hereunder,
then this Mortgage shall be null and void and of no further force and effect and
shall be released by the Mortgagee at the expense of Mortgagor.
SECTION 1. COVENANTS
Mortgagor covenants with Mortgagee as follows:
1.1 Definitions. As used in this Mortgage, all capitalized terms not
otherwise defined herein shall have the meaning ascribed thereto in the Credit
Agreement:
Default Rate: Citibank Base Rate as announced from time to time plus
5% per year.
Events of Default: (a) any Event of Default or (b) the default in
the payment of any Imposition required to be paid under this Mortgage.
Loss Proceeds: all insurance proceeds, condemnation awards or other
compensation in respect of a condemnation or casualty affecting all or a
portion of the Mortgaged Property.
Mortgage: this instrument, and any and all renewals, modifications,
amendments, supplements, extensions, consolidations, substitutions,
spreaders and replacements of this instrument.
Requirements of Law: all laws, ordinances, orders, judgments, rules
and regulations applicable to the Mortgaged Property.
Taking: a taking of all or any part of the Mortgaged Property or any
interest therein or right accruing thereto, as the result of or in lieu or
in anticipation of the exercise of the right of condemnation or eminent
domain, or a change of grade affecting the Mortgaged Property or any part
thereof.
1.2 Payment of Indebtedness. Mortgagor shall pay the indebtedness
secured by this Mortgage in accordance with the terms of the Credit Agreement
and perform each obligation to be performed under this Mortgage and any of the
other Credit Documents.
1.3 Insurance. (a) Mortgagor shall maintain with insurers approved
by Mortgagee:
3
(i) Insurance covering the Improvements against loss or damage by
fire, lightning, vandalism and malicious mischief and by such other,
further and additional risks as now are or hereafter may be covered by the
standard extended coverage endorsement in amounts not less than the full
insurable value (actual replacement value less actual physical
depreciation);
(ii) If the Mortgaged Property is located within a flood hazard
area, flood insurance in such amounts as provided in Section 6.5 of the
Credit Agreement;
(iii) Comprehensive public liability, property damage and business
interruption insurance applicable to the Mortgaged Property in such
amounts as provided in Section 6.5 of the Credit Agreement;
(iv) During the course of any construction or repair of the
Improvements, workers' compensation insurance in amounts reasonably
satisfactory to Mortgagee;
(v) During the course of any construction or repair of Improvements,
builder's completed value risk insurance against "all risks of physical
loss," including collapse and transit coverage, during construction of the
Improvements, covering the total value of work performed and equipment,
supplies and materials furnished;
(vi) Boiler and machinery insurance covering pressure vessels, air
tanks, boilers, machinery, pressure piping, heating, air conditioning and
elevator equipment and escalator equipment, provided the Improvements
contain equipment of such nature, and insurance against loss of occupancy
or use arising from any such breakdown, in amounts reasonably satisfactory
to Mortgagee; and
(vii) Such other insurance, and in such amounts, as reasonably may
be required by Mortgagee against the same or other hazards.
All policies of insurance shall, except for workers' compensation insurance,
name Mortgagee as additional named insured and loss payee as its interest may
require.
(b) Mortgagor will make all payments for insurance premiums and will
deliver to Mortgagee, promptly upon request, copies of all insurance policies
required hereunder (or, in the case of blanket policies, certificates thereof)
together with evidence of payment of all premiums due thereon.
(c) Any amounts advanced or expended by Mortgagee to pay costs of
collection of insurance proceeds hereunder, including, without limitation,
reasonable attorneys' fees, costs and disbursements, shall be paid by Mortgagor
to Mortgagee on demand, together with interest thereon at the Default Rate, and
shall be deemed part of the indebtedness secured by this Mortgage.
1.4 Maintenance, Repairs, Additions, etc. Mortgagor shall (a)
maintain the Mortgaged Property in good condition and repair (including, without
limitation, any repair or rebuilding required as a result of any damage,
destruction or Taking of the Mortgaged Property), wear and tear excepted, and
shall not commit or suffer any waste thereof, (b) not materially alter or
demolish the Mortgaged Property except to the extent that such alterations do
not decrease the value of the Mortgaged Property and that any replacements will
be of like or better quality than the
4
Improvements which were altered or demolished and (c) subject to subsection 1.6,
comply with all Requirements of Law affecting the Mortgaged Property.
1.5 Impositions. (a) Prior to delinquency, Mortgagor shall pay (i)
all real estate taxes or assessments and special assessments for local
improvements, sewer rents, water rates and any other charges in lieu of or in
substitution of real estate taxes or assessments and (ii) any license fee, tax
or assessment imposed on Mortgagee and measured by or based in whole or in part
upon the amount of the outstanding obligations secured hereby ((i) and (ii),
collectively, the "Impositions").
(b) Mortgagor shall furnish Mortgagee upon request within 30 days
after the date upon which any such Imposition is payable hereunder by Mortgagor,
official receipts of the appropriate taxing authority, or other proof reasonably
satisfactory to Mortgagee, evidencing the payment thereof.
(c) If requested by Mortgagee, after any default hereunder in the
payment of Impositions or after the occurrence of any Event of Default,
Mortgagor shall cause to be furnished to Mortgagee a tax report of a type,
duration and prepared by a company reasonably satisfactory to Mortgagee,
covering the Mortgaged Property.
1.6 Permitted Contests. Mortgagor may contest, after notice to
Mortgagee, any Imposition or Requirement of Law, provided that (a) in the case
of an unpaid Imposition such proceedings shall suspend the collection thereof
from Mortgagor, Mortgagee and the Mortgaged Property, (b) neither the Mortgaged
Property nor any interest therein would be in danger of being sold, forfeited or
lost, (c) in the case of a Requirement of Law, neither Mortgagor nor Mortgagee
would be in any danger of any additional civil or any criminal liability for
failure to comply therewith, and (d) Mortgagor shall have set aside on its books
adequate reserves with respect thereto, and shall have furnished such security
as may be reasonably requested by Mortgagee.
1.7 Expenses of Litigation. All sums reasonably incurred by
Mortgagee for the expense of any litigation (including, without limitation,
reasonable attorneys' fees and expenses) to prosecute or defend the rights and
lien created by this Mortgage shall be paid by Mortgagor on demand, together
with interest thereon at the Default Rate, and shall be deemed part of the
indebtedness secured by this Mortgage.
1.8 Casualty or Taking of the Mortgaged Property. (a) In the event
of a condemnation of all or substantially all of the Mortgaged Property, all
Loss Proceeds in respect of such condemnation shall be paid to Administrative
Agent on behalf of Mortgagee (as agent for all of the Lenders) and applied to
the indebtedness due to Mortgagee and the other Lenders under the Credit
Agreement, with any excess to be paid to Mortgagor.
(b) Subject to subsection (c) below, in the event of damage to or
destruction of the Mortgaged Property, or in the event of a partial condemnation
of the Mortgaged Property, all Loss Proceeds shall be paid to Mortgagor, and
Mortgagor shall commence to repair and restore the Mortgaged Property pursuant
to Section 6.5(b) of the Credit Agreement.
(c) If pursuant to Section 6.5(b) of the Credit Agreement Loss
Proceeds are required to be paid to the Administrative Agent and held as
collateral for application in accordance with the Security Documents, such Loss
Proceeds shall be applied, and repair and restoration shall be undertaken, as
follows: Mortgagor shall commence to repair and restore the Mortgaged Property
5
pursuant to plans and specifications approved by Mortgagee, in its reasonable
discretion, within ninety (90) days from the date of such condemnation, damage
or destruction, and shall complete the same with reasonable diligence and as
promptly as may be practicable after Mortgagee approves the plans and
specifications. Any Loss Proceeds received in connection with such condemnation,
damage or destruction shall be payable to Mortgagee to be applied in accordance
with the following provisions:
(i) If the Loss Proceeds received are less than $50,000, then such
proceeds shall be given to Mortgagor to be held in trust for Mortgagee and the
Lenders and applied only for the purpose of repairing, restoring, replacing or
rebuilding the Mortgaged Property. Any excess held by Mortgagor, after such
restoration, may be retained by Mortgagor.
(ii) In all other cases, the net amount of the Loss Proceeds on
account of such condemnation, damage or destruction to the Mortgaged Property,
after reimbursement out of such proceeds for any costs and expenses (including
reasonable attorneys' fees and disbursements) for collection thereof (such net
proceeds and deposits, and any other deposits made therein as provided below,
being herein collectively called the "Fund") shall be received and held by
Mortgagee and applied in accordance with the following provisions:
(A) If the net amount of Loss Proceeds shall be insufficient
to pay the entire cost of restoring the Mortgaged Property (as estimated by a
registered architect or professional engineer reasonably satisfactory to
Mortgagee, which estimate shall be delivered to Mortgagee before the
commencement of any such work), Mortgagor shall, prior to allowing such work to
commence, deposit the amount of the deficiency into the Fund, and thereafter
from time to time such additional amounts as shall be needed to meet any
increases in estimates made by said registered architect or professional
engineer. If the net amount of said proceeds shall be insufficient to pay the
entire cost of such work, Mortgagor shall pay and be responsible for the
deficiency.
(B) Mortgagor shall be entitled out of the Fund to ninety
percent (90%) of the cost of making temporary repairs or doing other work to
protect the Mortgaged Property pending adjustment of the insurance loss or the
making of permanent repairs, restoration, replacements or rebuilding.
(C) Mortgagor shall be entitled out of the Fund to payments
from time to time as the work progresses in amounts equal to a maximum of ninety
percent (90%) of the cost of labor and material incorporated into and used in
such work and architects' and engineers' fees, provided and upon condition that
(1) the work shall have been done in accordance with the plans and
specifications therefor, any other requirements contained in this Section, (2)
the remaining amount of the Fund shall be sufficient to pay in full for all of
the remaining work, and (3) a certificate of an independent registered architect
or professional engineer satisfactory to Mortgagee stating that such conditions
have been met shall have been delivered to Mortgagee.
(D) Mortgagor shall be entitled out of the Fund to the
remaining ten percent (10%) of the cost of labor and material incorporated into
and used in such work and architects' and engineers' fees when such work shall
have been fully completed and paid for and a certificate of an independent
registered architect or professional engineer satisfactory to Mortgagee stating
that such conditions have been met shall have been delivered to Mortgagee.
(E) At Mortgagee's request, Mortgagor shall furnish to
Mortgagee at the time of any such progress or final payment, a title search or
other evidence reasonably satisfactory to
6
Mortgagee (including waivers of lien agreements from the general contractor
supervising such work, or in the absence of a general contractor, all
contractors, materialmen and others providing labor or services in connection
therewith) that the Mortgaged Property and the interests therein of Mortgagee
and Mortgagor shall be free from (1) liens for labor performed or claimed to
have been performed or materials supplied or claimed to have been supplied,
unless the same are bonded, and (2) chattel mortgages, conditional sales
contacts, title retention agreements, security interests and agreements,
financing agreements, financing statements and any similar agreements, in
connection with such work. Notwithstanding any provision to the contrary,
Mortgagor shall not be entitled to any amount out of the Fund (x) while any such
lien or other encumbrance shall remain unsatisfied of record, unless in the case
of a lien the same is bonded or (y) during the continuance of any Event of
Default.
(F) If any of such Loss Proceeds shall remain after the full
completion of, and payment for, such repairs, restoration, replacements or
rebuilding, the excess shall be paid to Mortgagor.
1.9 Inspection. Mortgagee and any persons authorized by Mortgagee
shall have the right to enter and inspect the Mortgaged Property at all
reasonable times upon reasonable notice.
1.10 Utilities. Mortgagor shall pay when due all utility, sprinkler
system and protective services charges which are furnished to the Mortgaged
Property, whether public or private.
1.11 Action by Mortgagee to Preserve Mortgaged Property. Should
Mortgagor fail to make any payment or do any act as and in the manner provided
in this Mortgage, Mortgagee without obligation so to do and without notice to or
demand upon Mortgagor and without releasing Mortgagor from any obligation, may
make or do the same in such manner and to such extent as it may deem necessary
therefor. Mortgagor shall, upon demand therefor by Mortgagee pay all reasonable
costs and expenses incurred by Mortgagee in connection with the exercise by
Mortgagee of the foregoing rights (including, without limitation, reasonable
attorneys' fees and expenses) together with interest thereon from the date of
each such expenditure until paid, calculated at the Default Rate and the same
shall be deemed part of the indebtedness secured by this Mortgage.
SECTION 2. DEFAULT
2.1 Remedies. (a) Upon the occurrence of any Event of Default, in
addition to any other rights and remedies Mortgagee may have pursuant to the
Credit Documents, or as provided by law, and without limitation, (a) if such
event is an Event of Default specified in clause (a) or (b) of Section 8 of the
Credit Agreement, automatically the indebtedness secured hereby and all other
amounts owing under this Mortgage and the other Credit Documents immediately
shall become due and payable, and (b) if such event is any other Event of
Default, by `notice to Mortgagor, Mortgagee may declare the indebtedness secured
hereby and all other amounts payable under this Mortgage and the other Credit
Documents to be immediately due and payable. Except as expressly provided above
in this Section, presentment, demand, protest and all other notices of any kind
are hereby expressly waived. In addition, upon the occurrence of any Event of
Default, Mortgagee may immediately take such action, without notice or demand,
as it deems advisable to protect and enforce its rights against Mortgagor and in
and to the Mortgaged Property, including, without limitation, the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such manner as Mortgagee may determine, in its sole discretion, without
impairing or otherwise affecting the other rights and remedies of Mortgagee:
7
(i) Mortgagee may, to the extent permitted by applicable law, (A)
institute and maintain an action of mortgage foreclosure against all or
any part of the Mortgaged Property, (B) institute and maintain an action
on the Notes, or (C) take such other action at law or in equity for the
enforcement of this Mortgage or any of the Credit Documents as the law may
allow. Mortgagee may proceed in any such action to final judgment and
execution thereon for all sums due hereunder, together with interest
thereon at the Default Rate and all costs of suit, including, without
limitation, reasonable attorneys' fees and disbursements. Interest at the
Default Rate shall be due on any judgment obtained by Mortgagee from the
date of judgment until actual payment is made of the full amount of the
judgment.
(ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
indebtedness and obligations secured hereby enter into and upon the
Mortgaged Property and each and every part thereof and exclude Mortgagor
and its agents and employees therefrom without liability for trespass,
damage or otherwise (Mortgagor hereby agreeing to surrender possession of
the Mortgaged Property to Mortgagee upon demand at any such time) and use,
operate, manage, maintain and control the Mortgaged Property and every
part thereof. Following such entry and taking of possession, Mortgagee
shall be entitled, without limitation, (x) to lease all or any part or
parts of the Mortgaged Property for such periods of time and upon such
conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do and
perform any other act, deed, matter or thing concerning the Mortgaged
Property as Mortgagee shall deem appropriate as fully as Mortgagor might
do.
(b) The holder of this Mortgage, in any action to foreclose it,
shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Mortgaged Property may be sold, at Mortgagee's election, in one parcel
or in more than one parcel and Mortgagee is specifically empowered, (without
being required to do so, and in its sole and absolute discretion) to cause
successive sales of portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants, agreements,
terms or conditions contained in this Mortgage, and notwithstanding to the
contrary any exculpatory or non-recourse language which may be contained herein,
Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
2.2. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee, shall, as a matter of right, be entitled
to the appointment of a receiver for the Mortgaged Property, and Mortgagor
hereby consents to such appointment and waives notice of any application
therefor.
2.3 Remedies, etc. Cumulative. Each right, power and remedy of
Mortgagee provided for herein and now or hereafter existing at law or in equity
or by statute or otherwise shall be cumulative, and the exercise by Mortgagee of
any one or more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by Mortgagee of any or all such other rights,
powers or remedies.
SECTION 3. MISCELLANEOUS
8
3.1 Agreement. This Mortgage has been executed and delivered
pursuant to the Credit Agreement and is entitled to the benefits thereof.
3.2 Notices. All notices, requests, demands and other communications
hereunder shall be given as provided in the Credit Agreement.
3.3 No Oral Modification. This Mortgage may not be changed or
terminated orally.
3.4 Terms Subject to Applicable Law. All rights, powers and remedies
provided herein may be exercised only to the extent that the exercise thereof
does not violate any applicable law, and are intended to be limited to the
extent necessary so that they will not render this Mortgage invalid,
unenforceable or not entitled to be recorded, registered or filed under any
applicable law. In the event any one or more of the terms contained in this
Mortgage shall be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other term
hereof.
3.5 Successors and Assigns. All terms of this Mortgage shall run
with the land and bind Mortgagor, its successors and assigns, and all persons
claiming under or through Mortgagor or any such successor or assign and shall
inure to the benefit of Mortgagee, and its successors and assigns.
3.6 Warranty of Title. Mortgagor represents that it has good and
marketable fee simple title to the Mortgaged Property, subject only to the
permitted exceptions shown on the title insurance policy delivered to the
Mortgagee pursuant to subsection 5.1(r) of the Credit Agreement and to other
Liens permitted under Section 7.3 of the Credit Agreement, and has the right to
mortgage the Mortgaged Property. Mortgagor will warrant and defend to Mortgagee
such title and the lien and interest of this Mortgage as a valid and enforceable
first mortgage thereon.
3.7 Multiple Security. If (a) the Premises shall consist of one or
more parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Mortgage, Mortgagee shall now or hereafter
hold or be the beneficiary of one or more additional mortgages, liens, deeds of
trust or other security (directly or indirectly) for the indebtedness secured
hereby upon other property in the State in which the Premises are located
(whether or not such property is owned by Mortgagor or by others) or (c) both
the circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Mortgagee may, at its election, commence or
consolidate in a single trustee's sale or foreclosure action, as the case may
be, all sale or foreclosure proceedings against all such collateral securing the
indebtedness secured hereby (including the Mortgaged Property), which action may
be brought or consolidated in the courts of, or sale conducted in, any county in
which any of such collateral is located. Mortgagor acknowledges that the right
to maintain a consolidated sale or foreclosure action is a specific inducement
to Mortgagee and the Lenders to extend the indebtedness secured hereby, and
Mortgagor expressly and irrevocably waives any objections to the commencement or
consolidation of the sale or foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Mortgagor further agrees that if
Mortgagee shall be prosecuting one or more sales, foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the indebtedness secured hereby, or if Mortgagee shall have
obtained a judgment of foreclosure and sale or similar judgment against such
collateral (or, in the case
9
of sale, shall have met the statutory requirements therefor with respect to such
collateral), then, whether or not such proceedings are being maintained or
judgments were obtained in or outside the State in which the Premises are
located, Mortgagee may commence or continue any sale or foreclosure proceedings
and exercise its other remedies granted in this Mortgage against all or any part
of the Mortgaged Property and Mortgagor waives any objections to the
commencement or continuation of a foreclosure of this Mortgage or exercise of
any other remedies hereunder based on such other proceedings or judgments, and
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either any action under this Mortgage or such other proceedings on such basis.
The commencement or continuation of proceedings to sell the Mortgaged Property,
to foreclose this Mortgage or the exercise of any other rights hereunder or the
recovery of any judgment by Mortgagee or the occurrence of any sale in any such
proceedings shall not prejudice, limit or preclude Mortgagee's right to commence
or continue one or more sales, foreclosure or other proceedings or obtain a
judgment against any other collateral (either in or outside the State in which
the Premises are located) which directly or indirectly secures the indebtedness
secured hereby, and Mortgagor expressly waives any objections to the
commencement of, continuation of, or entry of a judgment in such other sales,
foreclosure or proceedings or exercise of any remedies in such sales,
foreclosure or proceedings based upon any action or judgment connected to this
Mortgage, and Mortgagor also waives any right to seek to dismiss, stay, remove,
transfer or consolidate either such other sales, foreclosures or proceedings or
any sale or action under this Mortgage on such basis.
3.8. Receipt of Copy. Mortgagor acknowledges that it has received a
true copy of this Mortgage.
3.9. Future Advances. State Specific Clauses. [Insert additional
state required clauses.]
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IN WITNESS WHEREOF, this Mortgage has been duly executed by
Mortgagor and its corporate seal has been duly affixed hereto.
ATTEST ____________________
[corporate seal]
By: By:
--------------------------- -------------------------
Name: Name:
Title: Title:
The address of the within-named Mortgagee is:
--------------------------------------------------------------------------------
For the Mortgagee
---------------------------------
Name:
Title:
11
[ACKNOWLEDGEMENT]
12
EXHIBIT ___
to
Mortgage
REAL PROPERTY DESCRIPTION
13
EXHIBIT C-2 TO
CREDIT AGREEMENT
--------------------------------------------------------------------------------
DEED OF TRUST
among
L-3 COMMUNICATIONS CORPORATION, as Grantor,
and
[__________], as Trustee
and
BANK OF AMERICA NT & SA, as Administrative Agent, as Beneficiary
Dated as of April 30, 1997
--------------------------------------------------------------------------------
This document was prepared by,
and after recording should be
returned to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxx, Esq.
DEED OF TRUST
THIS DEED OF TRUST, dated as of the 30 day of April, 1997 ("Deed of
Trust"), among L-3 COMMUNICATIONS CORPORATION, a Delaware corporation
("Grantor"), having its principal office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; _________________ ("Trustee"), having an address at
_______________; and BANK OF AMERICA NT & SA, a Delaware corporation,
("Beneficiary"), having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as Administrative Agent for the lenders (the Lenders") under that certain
Credit Agreement, dated as of April 30, 1997 (the "Credit Agreement"), among
Grantor, Grantee, Lenders and Xxxxxx Commercial Paper Inc., as Arranger,
Sydication Agent and Documentation Agent.
W I T N E S S E T H
TO SECURE:
(i) The Principal sum of up to a maximum of TWO HUNDRED SEVENTY FIVE
MILLION ($275,000,000) as evidenced by, and all of Grantor's obligations
under, the promissory notes dated as of the date hereof (the "Notes") from
Grantor in favor of Beneficiary;
(ii) performance and observance of each term to be performed by
Grantor under the Credit Agreement and any of the Credit Documents: and
(iii) performance and observance of each term contained in this Deed
of Trust and payment of all sums payable by Grantor to Beneficiary as
provided in this Deed of Trust;
(iv) future obligations of Grantor to Beneficiary and future
advances by Beneficiary under the Credit Agreement.
Grantor hereby conveys, grants, assigns, transfers and sets over to Trustee the
following (collectively, the "Trust Property"):
(A) the real property described in Exhibit A attached hereto and
made a part hereof (the "Premises");
(B) all buildings, improvements and fixtures now or hereafter
located or erected on the Premises (the "Improvements");
(C) any and all leases, underlettings and licenses of the Premises
or Improvements, or any part thereof, now existing or hereafter entered
into by Grantor, including, without limitation, upon the happening and
during the continuance of an Event of Default, the right to receive and
collect the rents, issues and profits derived or to be derived by Grantor
therefrom; and
1
(D) all right, title and interest of Grantor in and to (i) all and
singular, the tenements, hereditaments, rights of way, easements, waters,
water courses, riparian rights, appendages and appurtenances and property
rights belonging or in any way pertaining to the Premises or the
Improvements and (ii) all estate, right, title, claim or demand
whatsoever, either in law or in equity, in possession or expectancy, of,
in and to the Premises and the Improvements.
TO HAVE AND TO HOLD the Trust Property unto Trustee, its successors
and assigns forever.
IN TRUST, NEVERTHELESS, upon the terms and trust herein set forth
for the benefit and security of Beneficiary.
IN THE EVENT Grantor shall perform its obligations under the
Subsidiaries' Guarantee in accordance with the terms thereof and shall pay all
of the sums payable under the Subsidiaries' Guarantee and hereunder by Grantor,
and shall comply with the terms hereunder, then this Deed of Trust shall be null
and void and of no further force and effect and shall be released by the Trustee
at the direction of Beneficiary at the expense of Grantor.
SECTION 1. COVENANTS
Grantor covenants with Beneficiary as follows:
1.1 Definitions. As used in this Deed of Trust all capitalized terms
not otherwise defined herein shall have the meaning ascribed thereto in the
Credit Agreement:
Deed of Trust: this instrument, and any and all renewals,
modifications, amendments, supplements, extensions, consolidations,
substitutions, spreaders and replacements of this instrument.
Default Rate: Citibank Base Rate as announced from time to time,
plus 5% per year.
Events of Default: (a) any Event of Default or (b) the default in
the payment of any Imposition required to be paid under this Deed of
Trust.
Loss Proceeds: all insurance proceeds, condemnation awards or other
compensation in respect of a condemnation or casualty affecting all or a
portion of the Trust Property.
Requirements of Law: all laws, ordinances, orders, judgments, rules
and regulations applicable to the Trust Property.
Taking: a taking of all or any part of the Trust Property or any
interest therein or right accruing thereto, as the result of or in lieu or
in anticipation of the exercise of the right of condemnation or eminent
domain, or a change of grade affecting the Trust Property or any part
thereof.
2
1.2 Payment of Indebtedness. Grantor shall pay the indebtedness
secured by this Deed of Trust in accordance with the terms of the Subsidiaries'
Guarantee and perform each obligation to be performed under this Deed of Trust
and any of the other Credit Documents.
1.3 Insurance. (a) Grantor shall maintain with insurers approved by
Beneficiary:
(i) Insurance covering the Improvements against loss or damage by
fire, lightning, vandalism and malicious mischief and by such other,
further and additional risks as now are or hereafter may be covered by the
standard extended coverage endorsement in amounts not less than the full
insurable value (actual replacement value less actual physical
depreciation);
(ii) If the Trust Property is located within a flood hazard area,
flood insurance in such amounts as provided in Section 6.5 of the Credit
Agreement;
(iii) Comprehensive public liability, property damage and business
interruption insurance applicable to the Trust Property in such amounts as
provided in Section 6.5 of the Credit Agreement;
(iv) During the course of any construction or repair of the
Improvements, workers' compensation insurance in amounts reasonably
satisfactory to Beneficiary;
(v) During the course of any construction or repair of Improvements,
builder's completed value risk insurance against "all risks of physical
loss," including collapse and transit coverage, during construction of the
Improvements, covering the total value of work performed and equipment,
supplies and materials furnished;
(vi) Boiler and machinery insurance covering pressure vessels, air
tanks, boilers, machinery, pressure piping, heating, air conditioning and
elevator equipment and escalator equipment, provided the Improvements
contain equipment of such nature, and insurance against loss of occupancy
or use arising from any such breakdown, in amounts reasonably satisfactory
to Beneficiary; and
(vii) Such other insurance, and in such amounts, as reasonably may
be required by Beneficiary against the same or other hazards.
All policies of insurance shall, except for workers' compensation insurance,
name Beneficiary as additional named insured and loss payee as its interest may
require.
(b) Grantor will make all payments for insurance premiums and will
deliver to Beneficiary, promptly upon request, copies of all insurance policies
required hereunder (or, in the case of blanket policies, certificates thereof)
together with evidence of payment of all premiums due thereon.
(c) Any amounts advanced or expended by Beneficiary to pay costs of
collection of insurance proceeds hereunder, including, without limitation,
reasonable attorneys' fees, costs and disbursements, shall be paid by Grantor to
Beneficiary on demand, together with interest thereon at the Default Rate, and
shall be deemed part of the indebtedness secured by this Deed of Trust.
3
1.4 Maintenance, Repairs, Additions, etc. Grantor shall (a) maintain
the Trust Property in good condition and repair (including, without limitation,
any repair or rebuilding required as a result of any damage, destruction or
Taking of the Trust Property), wear and tear excepted, and shall not commit or
suffer any waste thereof, (b) not materially alter or demolish the Trust
Property except to the extent that such alterations do not decrease the value of
the Trust Property and that any replacements will be of like or better quality
than the Improvements which were altered or demolished and (c) subject to
subsection 1.6, comply with all Requirements of Law affecting the Trust
Property.
1.5 Impositions. (a) Prior to delinquency, Grantor shall pay (i) all
real estate taxes or assessments and special assessments for local improvements,
sewer rents, water rates and any other charges in lieu of or in substitution of
real estate taxes or assessments and (ii) any license fee, tax or assessment
imposed on Beneficiary and measured by or based in whole or in part upon the
amount of the outstanding obligations secured hereby ((i) and (ii),
collectively, the "Impositions").
(b) Grantor shall furnish Beneficiary upon request within 30 days
after the date upon which any such Imposition is payable hereunder by Grantor,
official receipts of the appropriate taxing authority, or other proof reasonably
satisfactory to Beneficiary, evidencing the payment thereof.
(c) If requested by Beneficiary, after any default hereunder in the
payment of Impositions or after the occurrence of any Event of Default, Grantor
shall cause to be furnished to Beneficiary a tax report of a type, duration and
prepared by a company reasonably satisfactory to Beneficiary, covering the Trust
Property.
1.6 Permitted Contests. Grantor may contest, after notice to
Beneficiary, any Imposition or Requirement of Law, provided that (a) in the case
of an unpaid Imposition, such proceedings shall suspend the collection thereof
from Grantor, Beneficiary and the Trust Property, (b) neither the Trust Property
nor any interest therein would be in danger of being sold, forfeited or lost,
(c) in the case of a Requirement of Law, neither Grantor nor Beneficiary would
be in any danger of any additional civil or any criminal liability for failure
to comply therewith, and (d) Grantor shall have set aside on its books adequate
reserves with respect thereto, and shall have furnished such security as may be
reasonably requested by Beneficiary.
1.7 Expenses of Litigation. All sums reasonably incurred by
Beneficiary for the expense of any litigation (including, without limitation,
reasonable attorneys' fees and expenses) to prosecute or defend the rights and
lien created by this Deed of Trust shall be paid by Grantor on demand, together
with interest thereon at the Default Rate, and shall be deemed part of the
indebtedness secured by this Deed of Trust.
1.8 Casualty or Taking of the Trust Property. (a) In the event of a
condemnation of all or substantially all of the Trust Property, all Loss
Proceeds in respect of such condemnation award shall be paid to Administrative
Agent on behalf of Beneficiary (as agent for all of the Lenders) and applied to
the indebtedness due to Beneficiary and the Lenders under the Credit Agreement,
with any excess to be paid to Grantor.
(b) Subject to subsection (c) below, in the event of damage to or
destruction of the Trust Property, or in the event of a partial condemnation of
the Trust Property, all Loss Proceeds shall be paid to Grantor, and Grantor
shall commence to repair and restore the Trust Property pursuant to Section
6.5(b) of the Credit Agreement.
4
(c) If pursuant to Section 6.5(b) of the Credit Agreement Loss
Proceeds are required to be paid to the Administrative Agent and held as
collateral for application in accordance with the Security Documents, such Loss
Proceeds shall be applied, and repair and restoration shall be undertaken, as
follows: Grantor shall commence to repair and restore the Trust Property
pursuant to plans and specifications approved by Beneficiary, in its reasonable
discretion, within ninety (90) days from the date of such condemnation, damage
or destruction, and shall complete the same with reasonable diligence and as
promptly as may be practicable after Beneficiary approves the plans and
specifications. Any Loss Proceeds received in connection with such condemnation,
damage or destruction shall be payable to Beneficiary to be applied in
accordance with the following provisions:
(i) If the Loss Proceeds received are less than $50,000, then such
proceeds shall be given to Grantor to be held in trust for Beneficiary and the
Lenders and applied only for the purpose of repairing, restoring, replacing or
rebuilding the Trust Property. Any excess held by Grantor, after such
restoration, may be retained by Grantor.
(ii) In all other cases, the net amount of the Loss Proceeds on
account of such condemnation, damage or destruction to the Trust Property, after
reimbursement out of such proceeds for any costs and expenses (including
reasonable attorneys' fees and disbursements) for collection thereof (such net
proceeds and deposits, and any other deposits made therein as provided below,
being herein collectively called the "Fund") shall be received and held by
Beneficiary and applied in accordance with the following provisions:
(A) If the net amount of Loss Proceeds shall be insufficient
to pay the entire cost of restoring the Trust Property (as estimated by a
registered architect or professional engineer reasonably satisfactory to
Beneficiary, which estimate shall be delivered to Beneficiary before the
commencement of any such work), Grantor shall, prior to allowing such work to
commence, deposit the amount of the deficiency into the Fund, and thereafter
from time to time such additional amounts as shall be needed to meet any
increases in estimates made by said registered architect or professional
engineer. If the net amount of said proceeds shall be insufficient to pay the
entire cost of such work, Grantor shall pay and be responsible for the
deficiency.
(B) Grantor shall be entitled out of the Fund to ninety
percent (90%) of the cost of making temporary repairs or doing other work to
protect the Trust Property pending adjustment of the insurance loss or the
making of permanent repairs, restoration, replacements or rebuilding.
(C) Grantor shall be entitled out of the Fund to payments from
time to time as the work progresses in amounts equal to a maximum of ninety
percent (90%) of the cost of labor and material incorporated into and used in
such work and architects' and engineers' fees, provided and upon condition that
(1) the work shall have been done in accordance with the plans and
specifications therefor, any other requirements contained in this Section, (2)
the remaining amount of the Fund shall be sufficient to pay in full for all of
the remaining work, and (3) a certificate of an independent registered architect
or professional engineer satisfactory to Beneficiary stating that such
conditions have been met shall have been delivered to Beneficiary.
(D) Grantor shall be entitled out of the Fund so the remaining
ten percent (10%) of the cost of labor and material incorporated into and used
in such work and architects' and engineers' fees when such work shall have been
fully completed and paid for and a certificate of an
5
independent registered architect or professional engineer satisfactory to
Beneficiary stating that such conditions have been met shall have been delivered
to Beneficiary.
(E) At Beneficiary's request, Grantor shall furnish to
Beneficiary at the time of any such progress or final payment, a title search or
other evidence reasonably satisfactory to Beneficiary (including waivers of lien
agreements from the general contractor supervising such work, or in the absence
of a general contractor, all contractors, materialmen and others providing labor
or services in connection therewith) that the Trust Property and the interests
therein of Beneficiary and Grantor shall be free from (1) liens for labor
performed or claimed to have been performed or materials supplied or claimed to
have been supplied, unless the same are bonded, and (2) chattel mortgages,
conditional sales contacts, title retention agreements, security interests and
agreements, financing agreements, financing statements and any similar
agreements, in connection with such work. Notwithstanding any provision to the
contrary, Grantor shall not be entitled to any amount out of the Fund (x) while
any such lien or other encumbrance shall remain unsatisfied of record, unless in
the case of a lien the same is bonded or (y) during the continuance of any Event
of Default.
(F) If any of such Loss Proceeds shall remain after the full
completion of, and payment for, such repairs, restoration, replacements or
rebuilding, the excess shall be paid to Grantor.
1.9 Inspection. Beneficiary and any persons authorized by
Beneficiary shall have the right to enter and inspect the Trust Property at all
reasonable times upon reasonable notice.
1.10 Utilities. Grantor shall pay when due all utility, sprinkler
system and protective services charges which are furnished to the Trust
Property, whether public or private.
1.11 Action by Mortgagee to Preserve Trust Property. Should Grantor
fail to make any payment or do any act as and in the manner provided in this
Deed of Trust, Beneficiary without obligation so to do and without notice to or
demand upon Grantor and without releasing Grantor from any obligation, may make
or do the same in such manner and to such extent as it may deem necessary
therefor. Grantor shall, upon demand therefor by Beneficiary pay all reasonable
costs and expenses incurred by Beneficiary in connection with the exercise by
Beneficiary of the foregoing rights (including, without limitation, reasonable
attorneys' fees and expenses) together with interest thereon from the date of
each such expenditure until paid, calculated at the Default Rate and the same
shall be deemed part of the indebtedness secured by this Deed of Trust.
SECTION 2. DEFAULT
2.1 Remedies. (a) Upon the occurrence of any Event of Default, in
addition to any other rights and remedies Beneficiary may have pursuant to the
Credit Documents, or as provided by law, and without limitation, (a) if such
event is an Event of Default specified in clause (a) or (b) of Section 8 of the
Credit Agreement, automatically the indebtedness secured hereby and all other
amounts owing under the Deed of Trust and the other Credit Documents immediately
shall become due and payable, and (b) if such event is any other Event of
Default, by notice to Grantor, Beneficiary may declare the indebtedness secured
hereby and all other amounts payable under this Deed of Trust and the other
Credit Documents to be immediately due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived. In addition, upon the occurrence of any Event
of Default, Beneficiary may immediately take such action, without notice or
demand, as it deems advisable to
6
protect and enforce its rights against Grantor and in and to the Trust Property,
including, without limitation, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such manner as
Beneficiary may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Beneficiary:
(i) Beneficiary may, to the extent permitted by law, elect to cause
the Trust Property or any part thereof to be sold as follows: The Trustee,
his successor or substitute, is authorized and empowered and it shall be
his special duty at the request of Beneficiary to enter and take
possession of the Trust Property, and before or after such entry to
[INSERT STATE SPECIFIC REQUIREMENTS FOR SALE] advertise the sale of the
Trust Property for ___ days by ___ weekly notices in some newspaper
published in the county where such sale is to be made and to sell the
Trust Property or any part thereof situated in the State(s) of [________]
at the [courthouse door of any county] in the State(s) of
[_______________] in which any part of the Trust Property is situated, at
public vendue to the highest bidder for cash between the hours of
[__________________] of the day fixed in the notice. Said sale shall be
free from equity of redemption, statutory right of redemption, homestead,
dower, and all other rights and exemptions of every kind, all of which are
hereby waived, and the Trustee shall execute a conveyance to the purchaser
and deliver possession to the purchaser, which Grantor binds itself shall
be given without obstruction, hindrance or delay. Any sale made by the
Trustee hereunder may be as an entirety or in such parcels or parts as
Beneficiary may request, and any sale may be adjourned by announcement at
the time and place appointed for such sale without further notice except
as may be required by law. The sale by the Trustee of less than the whole
of the Trust Property shall not exhaust the power of sale herein granted,
and the Trustee is specifically empowered to make successive sale or sales
under such power until the whole of the Trust Property shall be sold; and,
if the proceeds of such sale of less then the whole of the Trust Property
shall be less than the aggregate of the indebtedness secured hereby and
the expense of executing this trust as provided herein, this Deed of Trust
and the lien hereof shall remain in full force and effect as to the unsold
portion of the Trust Property just as though no sale had been made;
provided, however, that Grantor shall never have any right to require the
sale of less than the whole of the Trust Property but Beneficiary shall
have the right, at its sole election, to request the Trustee to sell less
than the whole of the Trust Property. After each sale, the Trustee shall
make to the purchaser or purchasers at such sale good and sufficient
conveyances, conveying the property so sold to the purchaser or purchasers
with general warranty of title as then possessed by the Trustee, and after
each sale the Trustee shall receive the proceeds of said sale or sales and
apply the same as herein provided. The power of sale granted herein shall
not be exhausted by any sale held hereunder by the Trustee or his
substitute or successor, and such power of sale may be exercised from time
to time and as many times as the Beneficiary may deem necessary until all
the Trust Property has been duly sold and all secured indebtedness has
been fully paid. In the event any sale hereunder is not completed or is
defective in the opinion of the Beneficiary, such sale shall not exhaust
the power of sale hereunder and the Beneficiary shall have the right to
cause a subsequent sale or sales to be made hereunder. Any and all
statements of fact or other recitals made in any deed or deeds given by
the Trustee or any successor or substitute appointed hereunder as to
nonpayment of the indebtedness secured hereby or as to the occurrence of
any default, or as to Beneficiary having declared all such indebtedness to
be due and payable, or as to the request to sell, or as to notice of time,
place and terms of sale and the properties to be sold having been duly
given, or as to the refusal, failure or inability to act of the Trustee or
any substitute or successor, or as to the appointment of any substitute or
successor, shall be taken as prima facie evidence of the truth of the
facts so stated and
7
recited. [The Trustee, his successor or substitute, may appoint or
delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by the Trustee, including the
posting of notices and the conduct of sale, but in the name and on behalf
of the Trustee, his successor or substitute.] This Deed of Trust shall be
effective as a mortgage as well as a deed of trust and upon the occurrence
of a default may be foreclosed as to any of the Trust Property in any
manner permitted by the laws of the State[s] of [_____________] or of any
other state in which any part of the Trust Property is situated, and any
foreclosure suit may be brought by the Trustee or by Beneficiary. In the
event a foreclosure hereunder shall be commenced by the Trustee, or his
substitute or successor, Beneficiary may at any time before the sale of
the Trust Property direct the said Trustee to abandon the sale, and may
then institute suit for the collection of the indebtedness and obligations
secured hereby, and for the foreclosure of the lien of this Deed of Trust.
It is agreed that if Beneficiary should institute a suit for the
collection of the secured indebtedness and for the foreclosure of the lien
of this Deed of Trust, Beneficiary may at any time before the entry of a
final judgment in said suit dismiss the same, and require the Trustee, his
substitute or successor to sell the property in accordance with the
provisions of this Deed of Trust.
(ii) Beneficiary may, to the extent permitted by applicable law, (A)
institute and maintain an action of judicial foreclosure against all or
any part of the Trust Property, (B) institute and maintain an action on
the Subsidiaries' Guarantee, or (C) take such other action at law or in
equity for the enforcement of this Deed of Trust or any of the Credit
Documents as the law may allow. Beneficiary may proceed in any such action
to final judgment and execution thereon for all sums due hereunder,
together with interest thereon at the Default Rate and all costs of suit,
including, without limitation, reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any judgment
obtained by Beneficiary from the date of judgment until actual payment is
made of the full amount of the judgment.
(iii) Beneficiary may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the Trust
Property or any other collateral as security for the indebtedness and
obligations secured hereby enter into and upon the Trust Property and each
and every part thereof and exclude Grantor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Grantor
hereby agreeing to surrender possession of the Trust Property to
Beneficiary upon demand at any such time) and use, operate, manage,
maintain and control the Trust Property and every part thereof. Following
such entry and taking of possession, Beneficiary shall be entitled,
without limitation, (x) to lease all or any part or parts of the Trust
Property for such periods of time and upon such conditions as Beneficiary
may, in its discretion, deem proper, (y) to enforce, cancel or modify any
lease on such property and (z) generally to execute, do and perform any
other act, deed, matter or thing concerning the Trust Property as
Beneficiary shall deem appropriate as fully as Grantor might do.
(b) Beneficiary, in any action to foreclose this Deed of Trust in a
judicial procedure or in connection with the exercise of any non-judicial power
of sale by Trustee, shall be entitled to the appointment of a receiver. In case
of a trustee's sale or foreclosure sale, the Trust Property may be sold, at
Beneficiary's election, in one parcel or in more than one parcel and Beneficiary
is specifically empowered (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Trust Property
to be held.
8
(c) In the event of any breach of any of the covenants, agreements,
terms or conditions contained in this Deed of Trust, Beneficiary or Trustee
shall be entitled to enjoin such breach and obtain specific performance of any
covenant, agreement, term or condition and Beneficiary and Trustee shall have
the right to invoke any equitable right or remedy as though other remedies were
not provided for in this Deed of Trust.
2.2. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Beneficiary, shall, as a matter of right, be
entitled to the appointment of a receiver for the Trust Property, and Grantor
hereby consents to such appointment and waives notice of any application
therefor.
2.3 Remedies, etc. Cumulative. Each right, power and remedy of
Beneficiary provided for herein and now or hereafter existing at law or in
equity or by statute or otherwise shall be cumulative, and the exercise by
Beneficiary of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by Beneficiary of any or all such
other rights, powers or remedies.
SECTION 3. MISCELLANEOUS
3.1 Agreement. This Deed of Trust has been executed and delivered
pursuant to the Credit Agreement and is entitled to the benefits thereof.
3.2 Notices. All notices, requests, demands and other communications
hereunder shall be given as provided in the Credit Agreement, except that
notices to Trustee shall be given at the address set forth at the beginning of
this Deed of Trust.
3.3 No Oral Modification. This Deed of Trust may not be changed or
terminated orally.
3.4 Terms Subject to Applicable Law. All rights, powers and remedies
provided herein may be exercised only to the extent that the exercise thereof
does not violate any applicable law, and are intended to be limited to the
extent necessary so that they will not render this Deed of Trust invalid,
unenforceable or not entitled to be recorded, registered or filed under any
applicable law. In the event any one or more of the terms contained in this Deed
of Trust shall be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other term
hereof.
3.5 Successors and Assigns. All terms of this Deed of Trust shall
run with the land and bind Grantor, its successors and assigns, and all persons
claiming under or through Grantor or any such successor or assign and shall
inure to the benefit of Trustee and Beneficiary, and their respective successors
and assigns.
3.6 Warranty of Title. Grantor represents that it has good and
marketable fee simple title to the Trust Property, subject only to the permitted
exceptions shown on the title insurance policy delivered to the Beneficiary
pursuant to subsection 5.1(r) of the Credit Agreement and to other Liens
permitted under Section 7.3 of the Credit Agreement, and has the right to
mortgage the Trust Property. Grantor will warrant and defend to Beneficiary such
title and the lien and interest of this Deed of Trust as a valid and enforceable
first deed of trust thereon.
9
3.7 Successor Trustee. Beneficiary shall have the right to appoint a
substitute, or a successor trustee, to act as Trustee hereunder by written
designation. Such right shall extend to the appointment of other successor and
substitute trustees successively until the indebtedness hereby secured has been
paid in full or until the Trust Property is sold hereunder, and each substitute
and successor trustee shall succeed to all of the rights and powers of the
original Trustee named herein. [ADD ADDITIONAL STATE SPECIFIC REQUIREMENTS]
3.8 Multiple Security. If (a) the Premises shall consist of one or
more parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Deed of Trust, Beneficiary shall now or
hereafter hold or be the beneficiary of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the indebtedness
secured hereby upon other property in the State in which the Premises are
located (whether or not such property is owned by Grantor or by others) or (c)
both the circumstances described in clauses (a) and (b) shall be true, then to
the fullest extent permitted by law, Beneficiary may, at its election, commence
or consolidate in a single trustee's sale or foreclosure action, as the case may
be, all sale or foreclosure proceedings against all such collateral securing the
indebtedness secured hereby (including the Trust Property), which action may be
brought or consolidated in the courts of, or sale conducted in, any county in
which any of such collateral is located. Grantor acknowledges that the right to
maintain a consolidated sale or foreclosure action is a specific inducement to
Beneficiary and the Lenders to extend the indebtedness secured hereby, and
Grantor expressly and irrevocably waives any objections to the commencement or
consolidation of the sale or foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Grantor further agrees that if
Trustee or Beneficiary shall be prosecuting one or more sales, foreclosure or
other proceedings against a portion of the Trust Property or against any
collateral other than the Trust Property, which collateral directly or
indirectly secures the indebtedness secured hereby, or if Beneficiary shall have
obtained a judgment of foreclosure and sale or similar judgment against such
collateral (or, in the case of a trustee's sale, shall have met the statutory
requirements therefor with respect to such collateral), then, whether or not
such proceedings are being maintained or judgments were obtained in or outside
the State in which the Premises are located, Beneficiary may commence or
continue any sale or foreclosure proceedings and exercise its other remedies
granted in this Deed of Trust against all or any part of the Trust Property and
Grantor waives any objections to the commencement or continuation of a sale of
the Premises or foreclosure of this Deed of Trust or exercise of any other
remedies hereunder based on such other proceedings or judgments, and waives any
right to seek to dismiss, stay, remove, transfer or consolidate either any
action under this Deed of Trust or such other proceedings on such basis. The
commencement or continuation of proceedings to sell the Trust Property in a
trustee's sale, to foreclose this Deed of Trust or the exercise of any other
rights hereunder or the recovery of any judgment by Beneficiary or the
occurrence of any sale by the Trustee in any such proceedings shall not
prejudice, limit or preclude Beneficiary's right to commence or continue one or
more sales, foreclosure or other proceedings or obtain a judgment against (or,
in the case of a trustee's sale, to meet the statutory requirements for, any
such sale of) any other collateral (either in or outside the State in which the
Premises are located) which directly or indirectly secures the indebtedness
secured hereby, and Grantor expressly waives any objections to the commencement
of, continuation of, or entry of a judgment in such other sales, foreclosure or
proceedings or exercise of any remedies in such sales, foreclosure or
proceedings based upon any action or judgment connected to this Deed of Trust,
and Grantor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other sales, foreclosure or proceedings or any sale or
action under this Deed of Trust on such basis.
10
3.9. Receipt of Copy. Grantor acknowledges that it has received a
true copy of this Deed of Trust.
3.10. State Specific Clauses. [ADD ADDITIONAL STATE REQUIRED
CLAUSES]
11
IN WITNESS WHEREOF, this Deed of Trust has been duly executed by
Grantor and its corporate seal has been duly affixed hereto.
_________________________________
By: _____________________________
Name:
Title:
12
[ACKNOWLEDGEMENT]
13
EXHIBIT A
to
Deed of Trust
REAL PROPERTY DESCRIPTION
14
EXHIBIT D-1
[LETTERHEAD OF XXXXXXX XXXXXXX & XXXXXXXX]
April 30, 1997
Xxxxxx Commercial Paper Inc.,
as Arranger, Syndication Agent and Documentation Agent
3 World Financial Center, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA,
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders Listed on Schedule 1 hereto
Ladies and Gentlemen:
We have acted as special counsel to L-3 Communications Holdings,
Inc., a Delaware corporation ("Holdings"), and L-3 Communications Corporation, a
Delaware corporation (the "Borrower", collectively with Holdings, the "Loan
Parties"), in connection with the preparation, execution and delivery of the
following documents: (i) the Credit Agreement dated as of April 30, 1997 (the
"Credit Agreement") among the Borrower, the Lenders parties thereto, Xxxxxx
Commercial Paper Inc., as Arranger, Syndication Agent and Documentation Agent,
and Bank of America NT & SA, as Administrative Agent, (ii) the Notes, (iii) the
Parent Pledge and Security Agreement, (iv) the Borrower Pledge and Security
Agreement, (v) the Parent Guarantee and (vi) the
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -2- April 30, 1997
Mortgages (the documents referred to in clauses (i) through (vi) are referred to
herein collectively as the "Loan Documents"). Terms defined in the Loan
Documents are used herein as therein defined. This opinion is being delivered to
you pursuant to Section 5.1(p) of the Credit Agreement.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of each of the
Loan Documents. In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, agreements,
instruments and other documents and have made such other investigations as we
have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
For the purposes hereof, we have assumed, with your permissions, the
genuineness of all signatures, the legal capacity of natural persons and the
authenticity and regularity of all documents examined by us. As to questions of
fact relevant to this opinion, we have relied upon, and assume the accuracy of,
the representations and warranties of the Loan Parties in the Loan Documents and
have relied upon certificates and oral or written statements and other
information of public officials, officers and representatives of the Loan
Parties and others and assume compliance on the part of all parties to the Loan
Documents with their covenants and agreements contained therein.
In rendering the opinions expressed below, we have assumed, with
your permission and without any independent investigation or verification of any
kind, that (a) the Loan Documents constitute the valid and legally binding
obligations of each party to
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -3- April 30, 1997
the Loan Documents other than the Loan Parties, enforceable against such parties
in accordance with their respective terms, and (b) the execution, delivery and
performance by each Loan Party of each Loan Document to which it is a party do
not (i) contravene, or require any order, consent, approval, license,
authorization, validation, filing, recording, registration or exemption not
obtained or made under, any applicable provision of any law, statute, rule or
regulation (other than any law, statute, rule or regulation of the United States
of America or the State of New York and the Delaware General Corporation Law) or
any order, writ, injunction or decree of any court or other governmental
authority binding upon such Loan Party or (ii) contravene, or require any
consent not obtained under, any contractual obligation applicable to or binding
upon such Loan Party (other than the Transaction Documents).
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. The Borrower has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware with
corporate power and authority to conduct its business as now conducted and
to own, or hold under lease, its assets and to enter into the Credit
Agreement, the Notes, the Borrower Pledge and Security Agreement, and the
Mortgages (collectively, the "Borrower Credit Documents") and perform its
obligations thereunder. Based solely on certificates from public
officials, we confirm that the Borrower is qualified to do business in
each State where such qualification is required, except where the failure
to be so qualified could not reasonably be expected to have a Material
Adverse Effect.
2. Holdings has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware with corporate
power and authority to conduct its business as now conducted and to own,
or hold under lease, its assets and to enter into the Parent Guarantee and
the Parent Pledge and Security Agreement (collectively, the "Guarantor
Documents") and perform its obligations
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -4- April 30, 1997
thereunder. Based solely on certificates from public officials, we confirm
that Holdings is qualified to do business in New York.
3. The execution, delivery and performance of the Borrower Credit
Documents have been duly authorized by all necessary corporate action of
the Borrower, and the Borrower Credit Documents have been duly executed
and delivered by the Borrower.
4. The execution, delivery and performance of the Guarantor
Documents have been duly authorized by all necessary corporate action of
Holdings, and the Guarantor Documents have been duly executed and
delivered by Holdings.
5. Each of the Borrower Credit Documents (other than any Mortgage
which by its terms is governed by the laws of a jurisdiction other than
New York State) constitutes a legally valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.
6. Each of the Guarantor Documents constitutes a legally valid and
binding obligation of Holdings, enforceable against Holdings in accordance
with its terms.
7. The execution and delivery of the Borrower Credit Documents by
the Borrower, the borrowing and granting of security interests by the
Borrower under the Borrower Credit Documents and the consummation of the
Transaction on the date hereof do not: (a) violate any federal or New York
statute, rule or regulation applicable to the Borrower or the Delaware
General Corporation Law (including, without limitation, Regulation G, T, U
or X of the Board of Governors of the Federal Reserve System, but
excluding any government procurement statute or regulations issued
pursuant thereto, as to which we understand that you have obtained the
opinion of Fried, Frank, Harris, Xxxxxxxx & Xxxxxxxx), (b) violate the
provisions of its certificate of incorporation or by-laws, (c) result in
(i) the breach of or a default under any of the Transaction Documents to
which the Borrower is a party or (ii) the creation of any lien under any
of the Transaction Documents to which the Borrower is a party, except for
liens arising under the Security Documents (as defined below), or (d)
require any consents, approvals, authorizations, registrations,
declarations or filings by the Borrower under any federal or New York
State statute, rule or regulation applicable to the Borrower, except (i)
the filing of the Financing Statements (as defined below) naming the
Borrower as the debtor, (ii) approvals required by the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act which have been obtained, (iii) the consents
under the Assignment of Claims Act and (iv) those other consents,
approvals, authorizations, registrations, declarations and filings
required under any federal or New York State statute, rule or regulation
and listed on Schedule 4.4 to the Credit Agreement.
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -5- April 30, 1997
8. The execution and delivery of the Guarantor Documents by
Holdings, the making of the guarantee and granting of the security
interests by Holdings under the Guarantor Documents and the consummation
of the Transaction on the date hereof do not: (a) violate any federal or
New York statute, rule or regulation applicable to Holdings or the
Delaware General Corporation Law (including, without limitation.
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System, but excluding any government procurement statute or regulations
issued pursuant thereto, as to which we understand that you have obtained
the opinion of Fried, Frank, Harris, Xxxxxxxx & Xxxxxxxx), (b) violate the
provisions of its certificate of incorporation or by-laws, (c) result in
(i) the breach of or a default under any of the Transaction Documents to
which Holdings is a party or (ii) the creation of any lien under any of
the Transaction Documents to which Holdings is a party, except for liens
arising under the Security Documents (as defined below), or (d) require
any consents, approvals, authorizations, registrations, declarations or
filings by Holdings under any federal or state statute, rule or regulation
applicable to Holdings, except (i) the filing of the Financing Statements
(as defined below) naming Holdings as the debtor, (ii) approvals required
by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act which have been
obtained, (iii) the consents under the Assignment of Claims Act and (iv)
those other consents, approvals, authorizations, registrations,
declarations and filings required under any federal or New York State
statute, rule or regulation and listed on Schedule 4.4 to the Credit
Agreement.
9. The provisions of the Borrower Pledge and Security Agreement are
effective to create valid security interests in favor of the
Administrative Agent in that portion of the collateral described in the
Borrower Pledge and Security Agreement which is subject to Article 9 of
the New York UCC (the "Borrower Collateral") as security for the payment,
to the extent set forth therein, of all obligations of the Borrower to the
Agents and the Lenders under the Borrower Credit Documents.
10. The provisions of the Parent Pledge and Security Agreement are
effective to create valid security interests in favor of the
Administrative Agent in that portion of the collateral described in the
Parent Pledge and Security Agreement which is subject to Article 9 of the
New York UCC (the "Parent Collateral" and, together with the Borrower
Collateral, the "Collateral") as security for the payment, to the extent
set forth therein, of all obligations of the Holdings to the Agents and
the Lenders under the Guarantor Documents.
11. The UCC-1 financing statements naming the Borrower as debtor
which are attached hereto as Exhibit A (the "Borrower Financing
Statements") and the UCC-1 financing statements naming Holdings as debtor
which are attached hereto
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -6- April 30, 1997
as Exhibit B (the "Holdings Financing Statements"; the Borrower Financing
Statements and the Holdings Financing Statements, collectively, the
"Financing Statements") are in appropriate form for filing in the Office
of the Secretary of State of New York, the Office of the New York City
Register and the Office of the Suffolk County Clerk (collectively, the
"Filing Offices"). Upon the proper filing of the Financing Statements in
the Filing Offices, the security interest in favor of the Administrative
Agent in the Collateral will be perfected to the extent a security
interest in such Collateral can be perfected by filing a financing
statement under the provisions of the New York UCC.
12. Assuming the Administrative Agent takes possession of and holds
the shares of capital stock listed on Schedule 1 to the Parent Pledge and
Security Agreement (the "Pledged Shares"), delivered to the Administrative
Agent pursuant to the Parent Pledge and Security Agreement, with undated
stock powers duly indorsed in blank, in the State of New York, the Parent
Pledge and Security Agreement will create a valid and perfected security
interest in favor of the Administrative Agent in the rights in such
Pledged Shares which Holdings has or has actual authority to convey, as
security for the payment, to the extent set forth in the Parent Pledge and
Security Agreement, of all obligations of Holdings to the Lenders under
the Guarantor Documents.
13. The Borrower's authorized capital stock consists of 100 shares
of common stock, all of which have been duly authorized and validly
issued, are fully paid and nonassessable, are free of preemptive rights
and, based solely on our review of the Borrower's stock records, are owned
of record by Holdings free and clear of all liens, claims, charges, or
encumbrances other than Liens created or permitted by the Security
Documents. Holdings has no direct or indirect Subsidiaries other than the
Borrower.
14. Assuming the Mortgage covering the Borrower's real property
located in Hauppauge, New York (the "New York Mortgage") is recorded in
the appropriate public records and that all necessary mortgage recording
taxes have been paid, the New York Mortgage will constitute a valid and
enforceable lien on the property described therein, securing the
Borrower's obligations under the Notes.
15. The Borrower is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
16. Holdings is not an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -7- April 30, 1997
17. The choice of New York law to govern each Loan Document in which
such choice is stipulated is a valid and effective choice of law under the
laws of the State of New York.
Our opinions in paragraphs 5 and 6 above are subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing. Our opinions in
paragraphs 5 and 6 above are also subject to the qualification that certain
remedial and exculpatory provisions of, and waivers of rights contained in, the
Borrower Pledge and Security Agreement, the Parent Pledge and Security Agreement
and the New York Mortgage (together, the "Security Documents") are or may be
unenforceable in whole or in part under the laws of the State of New York, but
such laws do not, in our opinion, make the remedies afforded by the Security
Documents inadequate for the practical realization of the benefits intended to
be provided thereby.
Our opinions in paragraph 9, 10 and 11 above are limited to Article
9 of the New York UCC and our opinion in paragraph 12 above is limited to
Article 8 of the New York UCC and therefore those opinion paragraphs do not
address (i) the laws of jurisdictions other than New York, (ii) the laws of New
York except for Article 8 or 9, as the case may be, of the New York UCC, (iii)
collateral of a type not subject to Article 8 or 9, as the case may be, of the
New York UCC and (iv) what law governs perfection of the security interests
granted in the collateral covered by this opinion letter under New
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -8- April 30, 1997
York UCC ss. 9-103. Our opinions in paragraphs 9, 10, 11 and 12 above should be
interpreted in accordance with the Special Report by the TriBar Opinion
Committee: U.C.C. Security Interest Opinions. 49 Bus. Law. 359 (1993).
With your permission, we express no opinion as to (a) the perfection
of the Administrative Agent's security interests in Pledged Securities with
respect to which a security interest may be perfected only through methods other
than the possession of certificates representing the Pledged Securities; (b) any
provision of the Loan Documents which is intended (i) to establish any standard
as the measure of the performance by any party thereto of such party's
obligations of good faith, diligence, fair dealing, reasonableness or care or
the fulfillment of the duties imposed on any secured creditor with respect to
the disposition or redemption of collateral, accounting for surplus proceeds of
collateral or accepting collateral in discharge of liabilities owed to any
creditor or unsecured creditor or (ii) to permit modification thereof only by
means of an agreement in writing signed by the parties thereto; (c) except as
set forth in paragraphs 9, 10, 11 and 12 above, the attachment, creation,
perfection, enforceability or priority of any liens or security interests
purported to be granted under the Loan Documents; (d) any provision of the Loan
Documents (i) requiring payment of attorneys' fees, except to the extent a court
determines such fees to be reasonable or (ii) waiving objections based on forum
non-conveniens; (e) the effect of the compliance or noncompliance with any
federal or state laws or regulations applicable to the Lenders or their
affiliates because of their legal or regulatory status or the nature of their
businesses; (f) any provision of the
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -9- April 30, 1997
Loan Documents insofar as it purports to grant a right of setoff in respect of
any Loan Party's or its subsidiaries' assets (i) to any person other than a
creditor of such Loan Party or subsidiary, as the case may be, or (ii) to any
Lender in an amount greater than the amount owing by such Loan Party or
subsidiary, as the case may be, to such Lender; (g) the right, title or interest
of any person in or to, or the condition of title or ownership of, or the
existence of, any property purported to be subject to the Loan Documents; (h)
Section 2.9(c) of the Credit Agreement (and corresponding provisions in each of
the other Loan Documents) insofar as they relate to post-judgment or default
interest rates or interest on overdue amounts; (i) any provision of the Loan
Documents which purports to require that any collateral or property be held in
trust or imposes fiduciary duties on any party thereto; (j) any provisions of
any Loan Document that provides that a Loan Party's liability thereunder shall
not be affected by action or failure to act on the part of the beneficiaries of
any Loan Document or by amendments or waivers of provisions of documents
governing the guaranteed or secured obligations; (k) with respect to the
validity, binding effect or enforceability of any provision of any Loan Document
which purports to authorize you to sign or file financing statements or other
documents without the signature of the applicable Loan Party (except to the
extent a secured party may execute and file financing statements without the
signature of the debtor under Section 9-402(2) of the New York UCC); (l) as to
the enforceability of the indemnification provisions of the Loan Documents
insofar as said provisions contravene public policy; and (m) the enforceability
of the provisions of any agreement or document to the extent
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -10- April 30, 1997
that such provisions constitute a waiver of illegality as a defense to
performance of contract obligations or any other defense to performance which
cannot, as a matter of law, be effectively waived.
We wish to point out that (a) in the case of property that becomes
collateral under the Loan Documents after the date hereof, Section 552 of Title
11 of the United States Bankruptcy Code limits the extent to which property
acquired by a debtor after the commencement of a case under the Bankruptcy Code
may be subject to a security interest arising from a security agreement entered
into by the debtor before the commencement of such case and (b) the perfection
of the Administrative Agent's security interest in proceeds is limited to the
extent set forth in 9-306 of the New York UCC.
In addition, we express no opinion as to the enforceability of any
provision of any Loan Document whereby any Loan Party purports to submit to the
subject matter jurisdiction of the United States District Court for the Southern
District of New York. We note the limitations of 28 U.S.C. ss. 1332 on federal
court jurisdiction where diversity of citizenship is lacking, and we also note
that such submissions cannot supersede that court's discretion in determining
whether to transfer an action from one federal court to another under 28 U.S.C.
ss. 1404(a).
We are members of the Bar of the State of New York and we express no
opinion as to the laws of any jurisdiction other than the federal laws of the
United States of America, the laws of the State of New York and the General
Corporation Law of the State of Delaware. We express no opinion as to the
enforceability, attachment, creation,
XXXXXXX XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA -11- April 30, 1997
perfection or priority of any security interest in or lien on patents, trade
names, trademarks, copyrights, other intellectual property or any agreements,
licenses or instruments relating thereto.
This opinion is rendered to you in connection with the
above-described transactions. This opinion may not be relied upon by you for any
other purpose, or relied upon by any other person, firm or corporation without
our prior written consent.
Very truly yours,
/s/ Xxxxxxx Xxxxxxx & Xxxxxxxx
XXXXXXX XXXXXXX & XXXXXXXX
Schedule 1
LENDERS
XXXXXX COMMERCIAL PAPER INC.
BANK OF AMERICA NT & SA
CREDIT LYONNAIS, NEW YORK BRANCH
FLEET NATIONAL BANK
MARINE MIDLAND BANK
BANK OF NOVA SCOTIA
BANKBOSTON, N.A.
THE FIRST NATIONAL BANK OF CHICAGO
THE FUJI BANK, LIMITED NEW YORK BRANCH
CANADIAN IMPERIAL BANK OF COMMERCE
CITIBANK, N.A.
THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.
KZH HOLDING CORPORATION II
KZH HOLDING CORPORATION
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
METROPOLITAN LIFE INSURANCE COMPANY
OAK HILL SECURITIES FUND, L.P.
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(a unit of the Chase Manhattan Bank)
PARIBAS CAPITAL FUNDING LLC
PILGRIM AMERICA PRIME RATE TRUST
PRIME INCOME TRUST
ROYALTON COMPANY
CRESCENT / MACH I PARTNERS L.P.
UNITED COMPANIES LIFE INSURANCE COMPANY
XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
BANK OF MONTREAL
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
BHF - BANK AKTIENGESELLSCHAFT GRAND CAYMAN BRANCH
CORESTATES BANK, X.X.
XXXXXXX SACHS CREDIT PARTNERS L.P.
PNC BANK, NATIONAL ASSOCIATION
SKANDINAVISKA ENSKILDA BANKEN CORPORATION
SOCIETE GENERALE, NEW YORK BRANCH
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
THE BANK OF NEW YORK
THE MITSUBISHI TRUST AND BANKING CORPORATION
TRANSAMERICA BUSINESS CREDIT CORPORATION
U.S. BANK
EXHIBIT A
STATE OF NEW YORK
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
--------------------------------------------------------------------------------
This FINANCING STATEMENT is presented to a Filing Officer for filing
pursuant to the Uniform Commercial Code
--------------------------------------------------------------------------------
No of Additional
Sheets Presented
--------------------------------------------------------------------------------
1. Debtor(s) (Last Name First) and Address(es)
L-3 COMMUNICATIONS
CORPORATION
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
00-0000000
--------------------------------------------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
BANK OF AMERICA NT & SA, as
ADMINISTRATIVE AGENT
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00-000-0000
--------------------------------------------------------------------------------
3. |_| The debtor is a transmitting utility
--------------------------------------------------------------------------------
4. For Filing Officer Date, Time No Filing Office
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
All Accounts; Chattel Paper; Contracts; Documents; Deposit Accounts; Equipment;
Fixtures; General Intangibles; Instruments; Intellectual Property; Inventory;
Investment Property; Pledged Securities; books and records pertaining to the
collateral; and proceeds and products of the foregoing as more particularly
defined and described on Exhibit A attached hereto and made a part hereof.
FILED WITH: NEW YORK COUNTY
|X| Products of the Collateral are also covered
--------------------------------------------------------------------------------
6. Assignee(s) of Secured Party and Address(es)
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on*
|_| The described goods are to be affixed to*
|_| The timber to be cut or minerals or the like (including oil and gas) is
on*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in
the Real Estate Records
No. & Street Town or City County Section Block Lot
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. This statement is filed without the debtor's signature to perfect a security
interest in collateral (check appropriate box)
|_| under a security agreement signed by debtor authorizing secured party to
file this statement, or
|_| which is proceeds of the original collateral described above in which a
security interest was perfected, or
|_| acquired after a change of name, identity or corporate structure of the
debtor, or |_| as to which the filing has lapsed, or already subject to a
security interest in another jurisdiction:
|_| when the collateral was brought into this state, or
|_| when the debtor's location was changed to this state
L-3 COMMUNICATIONS CORPORATION BANK OF AMERICA NT & SA,
as ADMINISTRATIVE AGENT
----------------------------------- -----------------------------------
By /s/ [Illegible] By /s/ [Illegible]
-------------------------------- ------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
(1) Filing Officer Copy - Numerical
STANDARD FORM - FORM UCC-1
--------------------------------------------------------------------------------
INSTRUCTIONS
(1) Remove Secured Party and Debtor copies and send other three copies to the
filing officer.
(2) Filing fee - for filing in the office of the Secretary of State, see
section 96-a of the Executive Law; for filing in the office of the County
Clerk or New York City Register see section 8021(f) at the Civil Practice
Law and Rules; or you may contact any of the respective offices for
information relative to fees.
(3) If the space provided for any item(s) on the form is inadequate, the
item(s) should be continued on additional sheets, preferably 7-1" x 10" or
7-1" x 8". Only one copy of such additional sheets need be presented to
the filing officer with a set of three copies of this financing statement.
(4) If collateral is crops or goods which are or are to become fixtures or
timber to be cut, or minerals or the like (including oil and gas), check
the appropriate box in Item 7; check the box in Item 8 the real estate by
street and number, if any or if none, by description sufficient to
identify it, such as "The real property described in Liber ____ of Deeds
(or Mortgages) at Page ____", and by city or town and county, if any, and
if in New York City, or Nassau or Onondaga County where the "block" system
of recording or registering and indexing conveyances is in use, by the
number of the Block and of the Section, if any, and of the Lot, if any, of
the real estate involved. Also give the name(s) of a record owner of the
real estate in Item 9.
(5) When a copy of the security agreement is used as a Financing Statement,
the filing fee is that of a non-standard form filing. It is requested that
it be accompanied by a completed but unsigned set of these forms.
(6) At the time of original filing, filing officer will return second copy as
an acknowledgement.
EXHIBIT A
TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT NAMING
L-3 COMMUNICATIONS CORPORATION, AS DEBTOR
AND
BANK OF AMERICA NT AND SA, AS ADMINISTRATIVE AGENT,
AS SECURED PARTY
================================================================================
DEBTOR: SECURED PARTY
L-3 Communications Corporation Bank of America NT & SA, as
_____________________________ Administrative Agent
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________
Fed. Taxpayer I.D. # __________
================================================================================
The Collateral covered by this financing statement includes all of the
above-named Debtor's right, title and interest in, all of the following property
now owned or at any time hereafter acquired by the Debtor or in which the Debtor
now has or at any time in the future may acquire any right (collectively, the
"Collateral"): all Accounts; all Chattel Paper; Contracts; Documents; Deposit
Accounts; Equipment; Fixtures; General Intangibles; Instruments; Intellectual
Property; Inventory; Investment Property; Pledged Securities; Real
Property-Related Collateral; books and records pertaining to the Collateral; and
to the extent not otherwise included, all Proceeds and products of any and all
of the foregoing and all collateral security and guarantees given by any Person
with respect to any of the foregoing; provided, however, except as permitted by
Section 9-318(4) of the NY UCC (hereinafter defined), the Collateral shall not
include any Contract, General Intangible, Patent License or Trademark License to
the extent that such Contract, General Intangible, Patent License or Trademark
License, or the instruments giving the same, would prohibit such assignment.
As used herein:
(a) The following terms which are defined in the Uniform Commercial
Code as in effect in the State of New York on April 30, 1997 (the "NY UCC") are
used herein as so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Fixtures, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
1
"Contracts" means all contracts and agreements to which the Debtor
is or becomes a party, including, without limitation, (i) all rights of the
Debtor to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of the Debtor to damages arising thereunder and (iii)
all rights of the Debtor to perform and to exercise all remedies thereunder.
"Credit Agreement" means that certain Credit Agreement dated as of
April 30. 1997 by and among L-3 Communications Corporation, a Delaware
corporation, the Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication
agent and documentation agent and Bank of America NT & SA, as administrative
agent for the Lenders, as the same be amended, restated and/or otherwise
modified from time to time.
"Copyrights" means (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to obtain
all renewals thereof.
"Copyright Licenses" means any written agreement naming the Debtor
as licensor or licensee, granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles" means all "general intangibles" as such term
is defined in Section 9-106 of the NY UCC and, in any event, including, without
limitation, with respect to the Debtor, all contracts, agreements, instruments
and indentures in any form, and portions thereof, to which the Debtor is a party
or under which the Debtor has any right, title or interest or to which the
Debtor or any property of the Debtor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of the Debtor to receive moneys due and to become due
to it thereunder or in connection therewith, (ii) all rights of the Debtor to
damages arising thereunder and (iii) all rights of the Debtor to perform and to
exercise all remedies thereunder, in each case to the extent the grant by the
Debtor of a security interest in its right, title and interest in such contract,
agreement, instrument or indenture is not prohibited by such contract,
agreement, instrument or indenture without the consent of any other party
thereto, would not give any other party to such contract, agreement, instrument
or indenture the right to terminate its obligations thereunder, or is permitted
with consent if all necessary consents to such grant of a security interest have
been obtained from the other parties thereto (it being understood that the
foregoing shall not be deemed to obligate the Debtor to obtain such consents);
provided, that the foregoing limitation shall not affect, limit, restrict or
impair the grant by the Debtor of a security interest to the Secured Party in
any Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
2
"Government Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Government Contract" means a Contract with a Government Authority.
"Intellectual Property" means the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made
by the Debtor to any of its subsidiaries.
"Investment Property" has the meaning ascribed thereto in the
Uniform Commercial Code as in effect on April 30, 1997 in the State of
California.
"Patents" means (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, (ii) all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Debtor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Pledged Notes" means all promissory notes, all Intercompany Notes
at any time issued to the Debtor and all other promissory notes issued to or
held by the Debtor (other than promissory notes issued in connection with
extensions of trade credit by the Debtor in the ordinary course of business).
"Pledged Securities" means the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock" means all shares of Capital Stock, together with any
other shares, stock certificates, options or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may from time to time be issued
or granted to, or held by, the Debtor.
3
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the NY UCC and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Real Property-Related Collateral" means (i) all buildings,
improvements and fixtures (the "Improvements") now or hereafter located or
erected on the real property described in Exhibit A to each of the Mortgages (as
such term is defined in the Credit Agreement (as defined above)) (the
"Premises"), (ii) any and all leases, underlettings and licenses of the Premises
or Improvements, or any part thereof, now existing or hereafter entered into by
the mortgagors, and/or grantors, as applicable, under the Mortgages
(collectively, the "Grantor"), including, without limitation, upon the happening
and during the continuance of an Event of Default (as defined in the Credit
Agreement), the right to receive and collect the rents, issues and profits
derived or to be derived by the Grantor therefrom, and (iv) all right, title and
interest of Grantor in and to (a) all and singular, the tenements,
hereditaments, rights of way, easements, waters, water courses, riparian rights,
appendages and appurtenances and property rights belonging or in any way
pertaining to the Premises or the Improvements and (b) all estate, right, title,
claim or demand whatsoever, either in law or in equity, in possession or
expectancy, of, in and to the Premises and the Improvements.
"Receivable" means any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Restricted Government Contract" means Government Contracts which,
by their terms, prohibit the assignment or Receivables thereunder.
"Trademarks" means (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (ii) the right to obtain all renewals thereof.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to the Debtor of any right to use any Trademark.
The Secured Party acts as "Administrative Agent" for the various "Lenders" from
time to time party to that certain Credit Agreement dated as of April 30, 1997
by and among L-3 Communications Corporation, a Delaware corporation, the
Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication agent and
documentation
4
agent and Bank of America NT & SA, as administrative agent for the Lenders, as
the same be amended, restated and/or otherwise modified from time to time.
Debtor: L-3 COMMUNICATIONS CORPORATION
By: /s/ [Illegible]
---------------------------------
Name:
Title:
5
STATE OF NEW YORK
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
--------------------------------------------------------------------------------
This FINANCING STATEMENT is presented to a Filing Officer for filing
pursuant to the Uniform Commercial Code
--------------------------------------------------------------------------------
No. of Additional
Sheets Presented
--------------------------------------------------------------------------------
1. Debtor(s) (Last Name First) and Address(es)
L-3 COMMUNICATIONS
CORPORATION
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
00-0000000
--------------------------------------------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
BANK OF AMERICA NT & SA, as
ADMINISTRATIVE AGENT
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00-000-0000
--------------------------------------------------------------------------------
3. |_| The debtor is a transmitting utility
--------------------------------------------------------------------------------
4. For Filing Officer Date, Time No Filing Office
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
All Accounts; Chattel Paper; Contracts; Documents; Deposit Accounts; Equipment;
Fixtures; General Intangibles; Instruments; Intellectual Property; Inventory;
Investment Property; Pledged Securities; books and records pertaining to the
collateral; and proceeds and products of the foregoing as more particularly
defined and described on Exhibit A attached hereto and made a part hereof.
FILED WITH: Secretary of State
|X| Products of the Collateral are also covered
--------------------------------------------------------------------------------
6. Assignee(s) of Secured Party and Address(es)
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on*
|_| The described goods are to be affixed to*
|_| The timber to be cut or minerals or the like (including oil and gas) is
on*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in
the Real Estate Records
No. & Street Town or City County Section Block Lot
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. This statement is filed without the debtor's signature to perfect a security
interest in collateral (check appropriate box)
|_| under a security agreement signed by debtor authorizing secured party to
file this statement, or
|_| which is proceeds of the original collateral described above in which a
security interest was perfected, or
|_| acquired after a change of name, identity or corporate structure of the
debtor, or |_| as to which the filing has lapsed, or already subject to a
security interest in another jurisdiction:
|_| when the collateral was brought into this state, or
|_| when the debtor's location was changed to this state
L-3 COMMUNICATIONS CORPORATION BANK OF AMERICA NT & SA,
as ADMINISTRATIVE AGENT
----------------------------------- -----------------------------------
By /s/ [Illegible] By /s/ [Illegible]
-------------------------------- ------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
(1) Filing Officer Copy - Numerical
STANDARD FORM - FORM UCC-1
--------------------------------------------------------------------------------
INSTRUCTIONS
(1) Remove Secured Party and Debtor copies and send other three copies to the
filing officer.
(2) Filing fee - for filing in the office of the Secretary of State, see
section 96-a of the Executive Law; for filing in the office at the County
Clerk or New York City Register see section 8021(f) at the Civil Practice
Law and Rules; or you may contact any at the respective offices for
information relative to fees.
(3) If the space provided for any item(s) on the form is inadequate, the
item(s) should be continued on additional sheets, preferably 7-1" x 10" or
7-1" x 8". Only one copy of such additional sheets need be presented to
the filing officer with a set of three copies of this financing statement.
(4) If collateral is crops or goods which are or are to become fixtures or
timber to be cut, or minerals or the like (including oil and gas), check
the appropriate box in Item 7; check the box in Item 8 the real estate by
street and number, if any or if none, by description sufficient to
identify it, such as "The real property described in Liber ____ of Deeds
(or Mortgages) at Page ____", and by city or town and county, if any, and
if in New York City, or Nassau or Onondaga County where the "block" system
of recording or registering and indexing conveyances is in use, by the
number of the Block and of the Section, if any, and of the Lot, if any, of
the real estate involved. Also give the name(s) of a record owner of the
real estate in Item 9.
(5) When a copy of the security agreement is used as a Financing Statement,
the filing fee is that of a non-standard form filing. It is requested that
it be accompanied by a completed but unsigned set of these forms.
(6) At the time of original filing, filing officer will return second copy as
an acknowledgement.
EXHIBIT A
TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT NAMING
L-3 COMMUNICATIONS CORPORATION, AS DEBTOR
AND
BANK OF AMERICA NT AND SA, AS ADMINISTRATIVE AGENT,
AS SECURED PARTY
================================================================================
DEBTOR: SECURED PARTY:
L-3 Communications Corporation Bank of America NT & SA, as
_____________________________ Administrative Agent
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________
Fed. Taxpayer I.D. # __________
================================================================================
The Collateral covered by this financing statement includes all of the
above-named Debtor's right, title and interest in, all of the following property
now owned or at any time hereafter acquired by the Debtor or in which the Debtor
now has or at any time in the future may acquire any right (collectively, the
"Collateral"): all Accounts; all Chattel Paper; Contracts; Documents; Deposit
Accounts; Equipment; Fixtures; General Intangibles; Instruments; Intellectual
Property; Inventory; Investment Property; Pledged Securities; Real
Property-Related Collateral; books and records pertaining to the Collateral; and
to the extent not otherwise included, all Proceeds and products of any and all
of the foregoing and all collateral security and guarantees given by any Person
with respect to any of the foregoing; provided, however, except as permitted by
Section 9-318(4) of the NY UCC (hereinafter defined), the Collateral shall not
include any Contract, General Intangible, Patent License or Trademark License to
the extent that such Contract, General Intangible, Patent License or Trademark
License, or the instruments giving the same, would prohibit such assignment.
As used herein:
(a) The following terms which are defined in the Uniform Commercial
Code as in effect in the State of New York on April 30, 1997 (the "NY UCC") are
used herein as so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Fixtures, Instruments and Inventory,
(b) The following terms shall have the following meanings:
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
1
"Contracts" means all contracts and agreements to which the Debtor
is or becomes a party, including, without limitation, (i) all rights of the
Debtor to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of the Debtor to damages arising thereunder and (iii)
all rights of the Debtor to perform and to exercise all remedies thereunder.
"Credit Agreement" means that certain Credit Agreement dated as of
April 30, 1997 by and among L-3 Communications Corporation, a Delaware
corporation, the Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication
agent and documentation agent and Bank of America NT & SA, as administrative
agent for the Lenders, as the same be amended, restated and/or otherwise
modified from time to time.
"Copyrights" means (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to obtain
all renewals thereof.
"Copyright Licenses" means any written agreement naming the Debtor
as licensor or licensee, granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles" means all "general intangibles" as such term
is defined in Section 9-106 of the NY UCC and, in any event, including, without
limitation, with respect to the Debtor, all contracts, agreements, instruments,
and indentures in any form, and portions thereof, to which the Debtor is a party
or under which the Debtor has any right, title or interest or to which the
Debtor or any property of the Debtor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of the Debtor to receive moneys due and to become due
to it thereunder or in connection therewith, (ii) all rights of the Debtor to
damages arising thereunder and (iii) all rights of the Debtor to perform and to
exercise all remedies thereunder, in each case to the extent the grant by the
Debtor of a security interest in its right, title and interest in such contract,
agreement, instrument or indenture is not prohibited by such contract,
agreement, instrument or indenture without the consent of any other party
thereto, would not give any other party to such contract, agreement, instrument
or indenture the right to terminate its obligations thereunder, or is permitted
with consent if all necessary consents to such grant of a security interest have
been obtained from the other parties thereto (it being understood that the
foregoing shall not be deemed to obligate the Debtor to obtain such consents);
provided, that the foregoing limitation shall not affect, limit, restrict or
impair the grant by the Debtor of a security interest to the Secured Party in
any Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
2
"Government Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Government Contract" means a Contract with a Government Authority.
"Intellectual Property" means the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made
by the Debtor to any of its subsidiaries.
"Investment Property" has the meaning ascribed thereto in the
Uniform Commercial Code as in effect on April 30, 1997 in the State of
California.
"Patents" means (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, (ii) all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Debtor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Pledged Notes" means all promissory notes, all Intercompany Notes
at any time issued to the Debtor and all other promissory notes issued to or
held by the Debtor (other than promissory notes issued in connection with
extensions of trade credit by the Debtor in the ordinary course of business).
"Pledged Securities" means the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock" means all shares of Capital Stock, together with any
other shares, stock certificates, options or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may from time to time be issued
or granted to, or held by, the Debtor.
3
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the NY UCC and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Real Property-Related Collateral" means (i) all buildings,
improvements and fixtures (the "Improvements") now or hereafter located or
erected on the real property described in Exhibit A to each of the Mortgages (as
such term is defined in the Credit Agreement (as defined above)) (the
"Premises"), (ii) any and all leases, underlettings and licenses of the Premises
or Improvements, or any part thereof, now existing or hereafter entered into by
the mortgagors and/or grantors, as applicable, under the Mortgages
(collectively, the "Grantor"), including, without limitation, upon the happening
and during the continuance of an Event of Default (as defined in the Credit
Agreement), the right to receive and collect the rents, issues and profits
derived or to be derived by the Grantor therefrom, and (iv) all right, title and
interest of Grantor in and to (a) all and singular, the tenements,
hereditaments, rights of way, easements, waters, water courses, riparian rights,
appendages and appurtenances and property rights belonging or in any way
pertaining to the Premises or the Improvements and (b) all estate, right, title,
claim or demand whatsoever, either in law or in equity, in possession or
expectancy, of, in and to the Premises and the Improvements.
"Receivable" means any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Restricted Government Contract" means Government Contracts which,
by their terms, prohibit the assignment or Receivables thereunder.
"Trademarks" means (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (ii) the right to obtain all renewals thereof.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to the Debtor of any right to use any Trademark.
The Secured Party acts as "Administrative Agent" for the various "Lenders" from
time to time party to that certain Credit Agreement dated as of April 30, 1997
by and among L-3 Communications Corporation, a Delaware corporation, the
Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication agent and
documentation
4
agent and Bank of America NT & SA, as administrative agent for the Lenders, as
the same be amended, restated and/or otherwise modified from time to time.
Debtor: L-3 COMMUNICATIONS CORPORATION
By: /s/ [Illegible]
---------------------------------
Name:
Title:
5
STATE OF NEW YORK Exhibit B
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
--------------------------------------------------------------------------------
This FINANCING STATEMENT is presented to a Filing Officer for filing
pursuant to the Uniform Commercial Code
--------------------------------------------------------------------------------
No. of Additional
Sheets Presented
--------------------------------------------------------------------------------
1. Debtor(s) (Last Name First) and Address(es)
L-3 COMMUNICATIONS HOLDINGS, INC.
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
00-0000000
--------------------------------------------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
BANK OF AMERICA NT & SA, as
ADMINISTRATIVE AGENT
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00-000-0000
--------------------------------------------------------------------------------
3. |_| The debtor is a transmitting utility
--------------------------------------------------------------------------------
4. For Filing Officer Date, Time No Filing Office
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items of) property:
All Accounts; Chattel Paper; Contracts; Documents; Deposit Accounts; Equipment;
Fixtures; General Intangibles; Instruments; Intellectual Property; Inventory;
Investment Property; Pledged Securities; books and records pertaining to the
collateral; and proceeds and products of the foregoing as more particularly
defined and described on Exhibit A attached hereto and made a part hereof.
Filed with New York County
|X| Products of the Collateral are also covered
--------------------------------------------------------------------------------
6. Assignee(s) of Secured Party and Address(es)
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on*
|_| The described goods are to be affixed to*
|_| The timber to be cut or minerals or the like (including oil and gas) is
on*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate Here: |_| This statement is to be indexed in
the Real Estate Records
No. & Street Town or City County Section Block Lot
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. This statement is filed without the debtor's signature to perfect a security
interest in collateral (check appropriate box)
|_| under a security agreement signed by debtor authorizing secured party to
file this statement, or
|_| which is proceeds of the original collateral described above in which a
security interest was perfected, or
|_| acquired after a change of name, identity or corporate structure of the
debtor, or |_| as to which the filing has lapsed, or already subject to a
security interest in another jurisdiction:
|_| when the collateral was brought into this state, or
|_| when the debtor's location was changed to this state
L-3 COMMUNICATIONS HOLDINGS, INC. BANK OF AMERICA NT & SA,
as ADMINISTRATIVE AGENT
----------------------------------- -----------------------------------
By /s/ [Illegible] By /s/ [Illegible]
-------------------------------- ------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
(1) Filing Officer Copy - Numerical
STANDARD FORM - FORM UCC-1
--------------------------------------------------------------------------------
INSTRUCTIONS
(1) Remove Secured Party and Debtor copies and send other three copies to the
filing officer.
(2) Filing fee - for filing in the office of the Secretary of State, see
section 96-a of the Executive Law; for filing in the office of the County
Clerk or New York City Register see section 8021(f) at the Civil Practice
Law and Rules; or you may contact any of the respective offices for
information relative to fees.
(3) If the space provided for any item(s) on the form is inadequate, the
item(s) should be continued on additional sheets, preferably 7-1" x 10" or
7-1" x 8". Only one copy of such additional sheets need be presented to
the filing officer with a set of three copies of this financing statement.
(4) If collateral is crops or goods which are or are to become fixtures or
timber to be cut, or minerals or the like (including oil and gas), check
the appropriate box in Item 7; check the box in Item 8 the real estate by
street and number, if any or if none, by description sufficient to
identify it, such as "The real property described in Liber ____ of Deeds
(or Mortgages) at Page ____", and by city or town and county, if any, and
if in New York City, or Nassau or Onondaga County where the "block" system
of recording or registering and indexing conveyances is in use, by the
number of the Block and of the Section, if any, and of the Lot, if any, of
the real estate involved. Also give the name(s) of a record owner of the
real estate in Item 9.
(5) When a copy of the security agreement is used as a Financing Statement,
the filing fee is that of a non-standard form filing. It is requested that
it be accompanied by a completed but unsigned set of these forms.
(6) At the time of original filing, filing officer will return second copy as
an acknowledgement.
EXHIBIT A
TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT NAMING
L-3 COMMUNICATIONS HOLDINGS, INC., AS DEBTOR
AND
BANK OF AMERICA NT AND SA, AS ADMINISTRATIVE AGENT,
AS SECURED PARTY
================================================================================
DEBTOR: SECURED PARTY:
L-3 Communications Holdings, Inc. Bank of America NT & SA, as
000 Xxxxx Xxxxxx, 00xx Xxxxx Administrative Agent
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fed. Taxpayer I.D. # 00-0000000
================================================================================
The Collateral covered by this financing statement includes all of the
above-named Debtor's right, title and interest in, all of the following property
now owned or at any time hereafter acquired by the Debtor or in which the Debtor
now has or at any time in the future may acquire any right (collectively, the
"Collateral"): all Accounts; all Chattel Paper; Contracts; Documents; Deposit
Accounts; Equipment; Fixtures; General Intangibles; Instruments; Intellectual
Property; Inventory; Investment Property; Pledged Securities; books and records
pertaining to the Collateral; and to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing; provided, however, except as permitted by Section 9-318(4) of the NY
UCC (hereinafter defined), the Collateral shall not include any Contract,
General Intangible, Patent License or Trademark License to the extent that such
Contract, General Intangible, Patent License or Trademark License, or the
instruments giving the same, would prohibit such assignment.
As used herein:
(a) The following terms which are defined in the Uniform Commercial
Code as in effect in the State of New York on April 30, 1997 (the "NY UCC") are
used herein as so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Fixtures, Instruments and Inventory,
(b) The following terms shall have the following meanings:
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
1
"Contracts" means all contracts and agreements to which the Debtor
is or becomes a party, including, without limitation, (i) all rights of the
Debtor to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of the Debtor to damages arising thereunder and (iii)
all rights of the Debtor to perform and to exercise all remedies thereunder.
"Copyrights" means (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to obtain
all renewals thereof.
"Copyright Licenses" means any written agreement naming the Debtor
as licensor or licensee, granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles" means all "general intangibles" as such term
is defined in Section 9-106 of the NY UCC and, in any event, including, without
limitation, with respect to the Debtor, all contracts, agreements, instruments,
and indentures in any form, and portions thereof, to which the Debtor is a party
or under which the Debtor has any right, title or interest or to which the
Debtor or any property of the Debtor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of the Debtor to receive moneys due and to become due
to it thereunder or in connection therewith, (ii) all rights of the Debtor to
damages arising thereunder and (iii) all rights of the Debtor to perform and to
exercise all remedies thereunder, in each case to the extent the grant by the
Debtor of a security interest in its right, title and interest in such contract,
agreement, instrument or indenture is not prohibited by such contract,
agreement, instrument or indenture without the consent of any other party
thereto, would not give any other party to such contract, agreement, instrument
or indenture the right to terminate its obligations thereunder, or is permitted
with consent if all necessary consents to such grant of a security interest have
been obtained from the other parties thereto (it being understood that the
foregoing shall not be deemed to obligate the Debtor to obtain such consents);
provided, that the foregoing limitation shall not affect, limit, restrict or
impair the grant by the Debtor of a security interest to the Secured Party in
any Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
"Government Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Government Contract" means a Contract with a Government Authority.
2
"Intellectual Property" means the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made
by the Debtor to any of its subsidiaries.
"Investment Property" has the meaning ascribed thereto in the
Uniform Commercial Code as in effect on April 30, 1997 in the State of
California.
"Patents" means (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, (ii) all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Debtor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Pledged Notes" means all promissory notes, all Intercompany Notes
at any time issued to the Debtor and all other promissory notes issued to or
held by the Debtor (other than promissory notes issued in connection with
extensions of trade credit by the Debtor in the ordinary course of business).
"Pledged Securities" means the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock" means all shares of Capital Stock, together with any
other shares, stock certificates, options or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may from time to time be issued
or granted to, or held by, the Debtor.
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the NY UCC and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
3
"Receivable" means any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Restricted Government Contract" means Government Contracts which,
by their terms, prohibit the assignment or Receivables thereunder.
"Trademarks" means (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (ii) the right to obtain all renewals thereof.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to the Debtor of any right to use any Trademark.
The Secured Party acts as "Administrative Agent" for the various "Lenders" from
time to time party to that certain Credit Agreement dated as of April 30, 1997
by and among L-3 Communications Corporation, a Delaware corporation, the
Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication agent and
documentation agent and Bank of America NT & SA, as administrative agent for
the Lenders, as the same be amended, restated and/or otherwise modified from
time to time.
Debtor: L-3 COMMUNICATIONS HOLDINGS, INC.
By: /s/ [Illegible]
---------------------------------
Name:
Title:
4
STATE OF NEW YORK
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
--------------------------------------------------------------------------------
This FINANCING STATEMENT is presented to a Filing Officer for filing
pursuant to the Uniform Commercial Code
--------------------------------------------------------------------------------
No. of Additional
Sheets Presented
--------------------------------------------------------------------------------
1. Debtor(s) (Last Name First) and Address(es)
L-3 COMMUNICATIONS
HOLDINGS, INC.
000 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
00-0000000
--------------------------------------------------------------------------------
2. Secured Party(ies) Name(s) and Address(es)
BANK OF AMERICA NT & SA, as
ADMINISTRATIVE AGENT
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00-000-0000
--------------------------------------------------------------------------------
3. |_| The debtor is a transmitting utility
--------------------------------------------------------------------------------
4. For Filing Officer Date, Time No Filing Office
--------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of property:
All Accounts; Chattel Paper; Contracts; Documents; Deposit Accounts; Equipment;
Fixtures; General Intangibles; Instruments; Intellectual Property; Inventory;
Investment Property; Pledged Securities; books and records pertaining to the
collateral; and proceeds and products of the foregoing as more particularly
defined and described on Exhibit A attached hereto and made a part hereof.
Filed with Secretary of State
|X| Products of the Collateral are also covered
--------------------------------------------------------------------------------
6. Assignee(s) of Secured Party and Address(es)
--------------------------------------------------------------------------------
7. |_| The described crops are growing or to be grown on*
|_| The described goods are to be affixed to*
|_| The timber to be cut or minerals or the like (including oil and gas) is
on*
*(Describe Real Estate Below)
--------------------------------------------------------------------------------
8. Describe Real Estate here: |_| This statement is to be indexed in
the Real Estate Records
No. & Street Town or City County Section Block Lot
--------------------------------------------------------------------------------
9. Name of a Record Owner
--------------------------------------------------------------------------------
10. This statement is filed without the debtor's signature to perfect a security
interest in collateral (check appropriate box)
|_| under a security agreement signed by debtor authorizing secured party to
file this statement, or
|_| which is proceeds of the original collateral described above in which a
security interest was perfected, or
|_| acquired after a change of name, identity or corporate structure of the
debtor, or |_| as to which the filing has lapsed, or already subject to a
security interest in another jurisdiction:
|_| when the collateral was brought into this state, or
|_| when the debtor's location was changed to this state
L-3 COMMUNICATIONS HOLDINGS, INC. BANK OF AMERICA NT & SA,
as ADMINISTRATIVE AGENT
----------------------------------- -----------------------------------
By /s/ [Illegible] By /s/ [Illegible]
-------------------------------- ------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
(1) Filing Officer Copy - Numerical
STANDARD FORM - FORM UCC-1
--------------------------------------------------------------------------------
INSTRUCTIONS
(1) Remove Secured Party and Debtor copies and send other three copies to the
filing officer.
(2) Filing fee - for filing in the office of the Secretary of State, see
section 96-a of the Executive Law; for filing in the office of the County
Clerk or New York City Register see section 8021(f) at the Civil Practice
Law and Rules; or you may contact any of the respective offices for
information relative to fees.
(3) If the space provided for any item(s) on the form is inadequate, the
item(s) should be continued on additional sheets, preferably 7-1" x 10" or
7-1" x 8". Only one copy of such additional sheets need be presented to
the filing officer with a set of three copies of this financing statement.
(4) If collateral is crops or goods which are or are to become fixtures or
timber to be cut, or minerals or the like (including oil and gas), check
the appropriate box in Item 7; check the box in Item 8 the real estate by
street and number, if any or if none, by description sufficient to
identify it, such as "The real property described in Liber ____ of Deeds
(or Mortgages) at Page ____", and by city or town and county, if any, and
if in New York City, or Nassau or Onondaga County where the "block" system
of recording or registering and indexing conveyances is in use, by the
number of the Block and of the Section, if any, and of the Lot, if any, of
the real estate involved. Also give the name(s) of a record owner of the
real estate in Item 9.
(5) When a copy of the security agreement is used as a Financing Statement,
the filing fee is that of a non-standard form filing. It is requested that
it be accompanied by a completed but unsigned set of these forms.
(6) At the time of original filing, filing officer will return second copy as
an acknowledgement.
EXHIBIT A
TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT NAMING
L-3 COMMUNICATIONS HOLDINGS, INC. AS DEBTOR
AND
BANK OF AMERICA NT AND SA, AS ADMINISTRATIVE AGENT,
AS SECURED PARTY
================================================================================
DEBTOR: SECURED PARTY:
L-3 Communications Holdings, Inc. Bank of America NT & SA, as
000 Xxxxx Xxxxxx, 00xx Xxxxx Administrative Agent
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fed. Taxpayer I.D. # 00-0000000
================================================================================
The Collateral covered by this financing statement includes all of the
above-named Debtor's right, title and interest in, all of the following property
now owned or at any time hereafter acquired by the Debtor or in which the Debtor
now has or at any time in the future may acquire any right (collectively, the
"Collateral"): all Accounts; all Chattel Paper; Contracts; Documents; Deposit
Accounts; Equipment; Fixtures; General Intangibles; Instruments; Intellectual
Property; Inventory; Investment Property; Pledged Securities; books and records
pertaining to the Collateral; and to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing; provided, however, except as permitted by Section 9-318(4) of the NY
UCC (hereinafter defined), the Collateral shall not include any Contract,
General Intangible, Patent License or Trademark License to the extent that such
Contract, General Intangible, Patent License or Trademark License, or the
instruments giving the same, would prohibit such assignment.
As used herein:
(a) The following terms which are defined in the Uniform Commercial
Code as in effect in the State of New York on April 30, 1997 (the "NY UCC") are
used herein as so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Fixtures, Instruments and Inventory,
(b) The following terms shall have the following meanings:
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
1
"Contracts" means all contracts and agreements to which the Debtor
is or becomes a party, including, without limitation, (i) all rights of the
Debtor to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of the Debtor to damages arising thereunder and (iii)
all rights of the Debtor to perform and to exercise all remedies thereunder.
"Copyrights" means (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to obtain
all renewals thereof.
"Copyright Licenses" means any written agreement naming the Debtor
as licensor or licensee, granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles" means all "general intangibles" as such term
is defined in Section 9-106 of the NY UCC and, in any event, including, without
limitation, with respect to the Debtor, all contracts, agreements, instruments
and indentures in any form, and portions thereof, to which the Debtor is a party
or under which the Debtor has any right, title or interest or to which the
Debtor or any property of the Debtor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of the Debtor to receive moneys due and to become due
to it thereunder or in connection therewith, (ii) all rights of the Debtor to
damages arising thereunder and (iii) all rights of the Debtor to perform and to
exercise all remedies thereunder, in each case to the extent the grant by the
Debtor of a security interest in its right, title and interest in such contract,
agreement, instrument or indenture is not prohibited by such contract,
agreement, instrument or indenture without the consent of any other party
thereto, would not give any other party to such contract, agreement, instrument
or indenture the right to terminate its obligations thereunder, or is permitted
with consent if all necessary consents to such grant of a security interest have
been obtained from the other parties thereto (it being understood that the
foregoing shall not be deemed to obligate the Debtor to obtain such consents);
provided, that the foregoing limitation shall not affect, limit, restrict or
impair the grant by the Debtor of a security interest to the Secured Party in
any Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
"Government Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Government Contract" means a Contract with a Government Authority.
2
"Intellectual Property" means the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made
by the Debtor to any of its subsidiaries.
"Investment Property" has the meaning ascribed thereto in the
Uniform Commercial Code as in effect on April 30, 1997 in the State of
California.
"Patents" means (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, (ii) all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Debtor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Pledged Notes" means all promissory notes, all Intercompany Notes
at any time issued to the Debtor and all other promissory notes issued to or
held by the Debtor (other than promissory notes issued in connection with
extensions of trade credit by the Debtor in the ordinary course of business).
"Pledged Securities" means the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock" means all shares of Capital Stock, together with any
other shares, stock certificates, options or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may from time to time be issued
or granted to, or held by, the Debtor.
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the NY UCC and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
3
"Receivable" means any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Restricted Government Contract" means Government Contracts which,
by their terms, prohibit the assignment or Receivables thereunder.
"Trademarks" means (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (ii) the right to obtain all renewals thereof.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to the Debtor of any right to use any Trademark.
The Secured Party acts as "Administrative Agent" for the various "Lenders" from
time to time party to that certain Credit Agreement dated as of April 30, 1997
by and among L-3 Communications Corporation, a Delaware corporation, the
Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication agent and
documentation agent and Bank of America NT & SA, as administrative agent for the
Lenders, as the same be amended, restated and/or otherwise modified from time to
time.
Debtor: L-3 COMMUNICATIONS HOLDINGS
By: /s/ [Illegible]
---------------------------------
Name:
Title:
4
EXHIBIT A
TO UNIFORM COMMERCIAL CODE FINANCING STATEMENT NAMING
L-3 COMMUNICATIONS HOLDINGS, INC. AS DEBTOR
AND
BANK OF AMERICA NT AND SA, AS ADMINISTRATIVE AGENT,
AS SECURED PARTY
================================================================================
DEBTOR: SECURED PARTY:
L-3 Communications Holdings, Inc. Bank of America NT & SA, as
000 Xxxxx Xxxxxx, 00xx Xxxxx Administrative Agent
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fed. Taxpayer I.D. # 00-0000000
================================================================================
The Collateral covered by this financing statement includes all of the
above-named Debtor's right, title and interest in, all of the following property
now owned or at any time hereafter acquired by the Debtor or in which the Debtor
now has or at any time in the future may acquire any right (collectively, the
"Collateral"): all Accounts; all Chattel Paper; Contracts; Documents; Deposit
Accounts; Equipment; Fixtures; General Intangibles; Instruments; Intellectual
Property; Inventory; Investment Property; Pledged Securities; books and records
pertaining to the Collateral; and to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing; provided, however, except as permitted by Section 9-318(4) of the NY
UCC (hereinafter defined), the Collateral shall not include any Contract,
General Intangible, Patent License or Trademark License to the extent that such
Contract, General Intangible, Patent License or Trademark License, or the
instruments giving the same, would prohibit such assignment.
As used herein:
(a) The following terms which are defined in the Uniform Commercial
Code as in effect in the State of New York on April 30, 1997 (the "NY UCC") are
used herein as so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Fixtures, Instruments and Inventory,
(b) The following terms shall have the following meanings:
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
1
"Contracts" means all contracts and agreements to which the Debtor
is or becomes a party, including, without limitation, (i) all rights of the
Debtor to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of the Debtor to damages arising thereunder and (iii)
all rights of the Debtor to perform and to exercise all remedies thereunder.
"Credit Agreement" means that certain Credit Agreement dated as of
April 30, 1997 by and among L-3 Communications Corporation, a Delaware
corporation, the Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication
agent and documentation agent and Bank of America NT & SA, as administrative
agent for the Lenders, as the same be amended, restated and/or otherwise
modified from time to time.
"Copyrights" means (i) all copyrights arising under the laws of
the United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to obtain
all renewals thereof.
"Copyright Licenses" means any written agreement naming the Debtor
as licensor or licensee, granting any right under any Copyright, including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles" means all "general intangibles" as such term
is defined in Section 9-106 of the NY UCC and, in any event, including, without
limitation, with respect to the Debtor, all contracts, agreements, instrument,
and indentures in any form, and portions thereof, to which the Debtor is a party
or under which the Debtor has any right, title or interest or to which the
Debtor or any property of the Debtor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of the Debtor to receive moneys due and to become due
to it thereunder or in connection therewith, (ii) all rights of the Debtor to
damages arising thereunder and (iii) all rights of the Debtor to perform and to
exercise all remedies thereunder, in each case to the extent the grant by the
Debtor of a security interest in its right, title and interest in such contract,
agreement, instrument or indenture is not prohibited by such contract,
agreement, instrument or indenture without the consent of any other party
thereto, would not give any other party to such contract, agreement, instrument
or indenture the right to terminate its obligations thereunder, or is permitted
with consent if all necessary consents to such grant of a security interest have
been obtained from the other parties thereto (it being understood that the
foregoing shall not be deemed to obligate the Debtor to obtain such consents);
provided, that the foregoing limitation shall not affect, limit, restrict or
impair the grant by the Debtor of a security interest to the Secured Party in
any Receivable or any money or other amounts due or to become due under any such
contract, agreement, instrument or indenture.
2
"Government Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Government Contract" means a Contract with a Government Authority.
"Intellectual Property" means the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercompany Note" means any promissory note evidencing loans made
by the Debtor to any of its subsidiaries.
"Investment Property" has the meaning ascribed thereto in the
Uniform Commercial Code as in effect on April 30, 1997 in the State of
California.
"Patents" means (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, (ii) all applications for letters
patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Debtor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Pledged Notes" means all promissory notes, all Intercompany Notes
at any time issued to the Debtor and all other promissory notes issued to or
held by the Debtor (other than promissory notes issued in connection with
extensions of trade credit by the Debtor in the ordinary course of business).
"Pledged Securities" means the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock" means all shares of Capital Stock, together with any
other shares, stock certificates, options or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may from time to time be issued
or granted to, or held by, the Debtor.
3
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the NY UCC and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Real Property-Related Collateral" means (i) all buildings,
improvements and fixtures (the "Improvements") now or hereafter located or
erected on the real property described in Exhibit A to each of the Mortgages (as
such term is defined in the Credit Agreement (as defined above)) (the
"Premises"), (ii) any and all leases, underlettings and licenses of the Premises
or Improvements, or any part thereof, now existing or hereafter entered into by
the mortgagors and/or grantors, as applicable, under the Mortgages
(collectively, the "Grantor"), including, without limitation, upon the happening
and during the continuance of an Event of Default (as defined in the Credit
Agreement), the right to receive and collect the rents, issues and profits
derived or to be derived by the Grantor therefrom, and (iv) all right, title and
interest of Grantor in and to (a) all and singular, the tenements,
hereditaments, rights of way, easements, waters, water courses, riparian rights,
appendages and appurtenances and property rights belonging or in any way
pertaining to the Premises or the Improvements and (b) all estate, right, title,
claim or demand whatsoever, either in law or in equity, in possession or
expectancy, of, in and to the Premises and the Improvements.
"Receivable" means any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Restricted Government Contract" means Government Contracts which,
by their terms, prohibit the assignment or Receivables thereunder.
"Trademarks" means (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (ii) the right to obtain all renewals thereof.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to the Debtor of any right to use any Trademark.
The Secured Party acts as "Administrative Agent" for the various "Lenders" from
time to time party to that certain Credit Agreement dated as of April 30, 1997
by and among L-3 Communications Corporation, a Delaware corporation, the
Lenders, Xxxxxx Commercial Paper Inc., as arranger, syndication agent and
documentation agent
and Bank of America NT & SA, as administrative agent for the Lenders, as the
same be amended, restated and/or otherwise modified from time to time.
Debtor: L-3 COMMUNICATIONS CORPORATION
By: /s/ [Illegible]
---------------------------------
Name:
Title:
4
EXHIBIT D-2
[Letterhead of FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX]
WRITER'S DIRECT LINE
202/639-7130
Xxxxxx Commercial Paper Inc., as Arranger,
Syndication Agent and Documentation Agent
3 World Financial Center, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America NT & SA.
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders Listed on Schedule I hereto
Ladies and Gentlemen:
We are acting as special counsel to L-3 Communications Corporation, a
Delaware corporation (the "Company"), regarding Federal Government contract
matters, in connection with the Credit Agreement dated April 30, 1997. We are
delivering this opinion pursuant to Section 5.1(p)(i) of the Credit Agreement.
Capitalized terms used herein have the meaning given them in the Credit
Agreement unless such terms are otherwise defined herein.
Since we have acted only as special counsel to the Company, we have
limited knowledge of the affairs of the Company. This opinion is therefore based
on such knowledge of the affairs of the Company as we may have acquired in the
course of the instant representation. We convened our review on February 20,
1997 and, as instructed by the client, completed the review by February 25,
1997. In connection with our engagement, we visited Communications Systems,
Camden, NJ; Wideband, Salt Lake City, Utah; Advanced Recorders, Sarasota,
Florida; Conic, San Diego, California; and Display Systems, Atlanta, Georgia;
Telemetry & Instrumentation, San Diego, California and Randtron, Menlow Park,
California. We did not visit Hycor, Microcom and Xxxxx East and West. In
connection with this review, we reviewed only those contracts specified on
Exhibit A. Accordingly, the opinions set forth below are limited only to those
contracts.
To the extent that it may be relevant to the opinions expressed herein, we
have assumed that the parties to the agreements described herein (other than the
parties whose actions are the
NEW YORK WASHINGTON LOS ANGELES LONDON
FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA
April 30, 1997
Page 2
subject of our opinions) have the power to enter into and perform such
agreements and that such agreements have been duly authorized, executed and
delivered by, and constitute legal, valid and binding obligations of, such
parties.
We have examined and relied upon the originals, or certified, conformed or
reproduced copies of all records, documents, certificates or other instruments
as in our judgment are necessary or appropriate to enable us to render the
opinions expressed below. In all such examinations we have assumed the
genuineness of all signatures on original or certified, conformed or
reproduction copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to such opinions, we have relied upon, and assumed
the accuracy of, certificates of public officials and oral or written statements
or certificates of officers or representatives of the Company and others.
Based upon and subject to the foregoing, and further subject to the
limitations and qualifications below, we are of the opinion that as of the date
hereof:
(i) None of the execution, delivery or performance by the Loan
Parties of the Credit Agreement or the transactions contemplated
thereby, compliance by the Loan Parties with the provisions of the
Credit Agreement nor consummation by the Loan Parties of the
transactions contemplated thereby: (i) with respect to U.S.
Government procurement matters (limited to our review of the
contracts set forth on Exhibit A hereto) requires any consent,
approval, authorization or other order of, or registration or filing
with any federal court, federal regulatory body, U.S.
administrative agency or other federal governmental body, agency or
official having authority over government procurement matters
(except for those governmental consents, approvals, authorizations
or other orders of, or registrations or filings with, any federal
court, federal regulatory body, U.S. administrative agency or other
federal governmental body, agency or official having authority over
federal government procurement matters contemplated in the
Transaction Agreement, the Shareholders Agreement and the Credit
Agreement, and except where the failure to obtain governmental
consents, approvals, authorizations or other orders of, or
registrations or filings with, any federal court, federal regulatory
body, U.S. administrative agency or other federal governmental body,
agency or official having authority over
FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA
April 30, 1997
Page 3
federal government procurement matters would not have material
adverse effect on the consummation by the Company of the
transactions contemplated by the Purchase Agreement, the Credit
Agreement, and the Transaction Agreement) or (ii) conflicts or will
conflict with or constitutes or will constitute a material breach
of, or material default under any material government procurement
contract (limited to our review of the contracts set forth on
Exhibit A hereto and with the exception of those governmental
consents, approvals, authorizations or other orders of, or
registrations or filings with, any federal court, federal regulatory
body, U.S. administrative agency or other federal governmental body,
agency or official having authority over government procurement
matters contemplated in the Transaction Agreement, the Shareholders
Agreement and the Credit Agreement) or will violate, in any material
respect, any law, statute, ordinance, governmental rule, regulation,
regarding U.S. Government procurement contracts to which it or its
property or assets may be subject or will result in the creation or
imposition of any material lien, charge or encumbrance upon any
property or assets of the Company pursuant to the terms of any
agreement or instrument (limited to our review of the contracts set
forth on Exhibit A hereto) to which it is a party or by which it may
be bound or to which any of its property or assets is subject
pursuant to any government procurement contract (limited to our
review of the contracts set forth on Exhibit A hereto).
Our opinions also are subject to the effect of, and we express no opinion
therein as to the application of notifications regarding any outstanding advance
payments, disposition of pension plans or other post-retirement benefits. Our
opinions are also subject to the effect of, and we express no opinion therein as
to the environmental, intellectual property, labor or tax laws relating to the
U.S. government contracts.
The opinions expressed herein are limited to the federal laws of the
United States.
FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX
Xxxxxx Commercial Paper Inc.
Bank of America NT & SA
April 30, 1997
Page 4
The opinions expressed herein are solely for your benefit and may not be
relied upon in any manner or for any purpose by any other person and may not be
quoted in whole or in part without our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, XXXXXXX & XXXXXXXX
By: /s/ Xxxxx X. XxXxxxxxxx
--------------------------------------
Xxxxx X. XxXxxxxxxx
EXHIBIT A
Telemetry & Instrumentation
Purchase Order No. 1288468 (Sales Order 14921)
Intra Lockheed Xxxxxx Work Transfer Agreement ("IWTA") No. AY-12-30001 (Sales
Order 15705)
Purchase Order No. 000-0-00000 (Sales Order 14923)
IWTA No. BY-12-00001 & 2 (Sales Order 15605)
Purchase Order No. 0277-6003601 (Sales Order 15361)
Contract No. F04611-93-D-0010 (Sales Order 16125 & 5008)
Contract No. NASIO 96013(B) (Sales Order 15538)
Purchase Order No. RQ33367, (Sales Order 15151 & 15686)
Purchase Order No. 229, (Sales Order 15251)
Purchase Order No. X10/45070814, (Sales Order 15684)
XXXX Xxx. XX 00000 & XX 0000, (Xxxxx Order 15537 & 15698)
Contract No. GS03F-5087 (Sales Order 15643)
Conic/TerraCom
Purchase Order No. 633EW (Sales Order 5512)
Purchase Order No. M6J3BSA-587 408D (Sales Order 5434)
Purchase Order No. S-612418-EKW (Sales Order 5283)
Purchase Order No. DP5-020005 (Sales Order 5264)
Purchase Order No. 1-3199675 (Sales Order 5218)
Purchase Order No. HE 36722159 (Sales Order 5189)
Purchase Order Nos. I-3199674 & I-3199675 (Sales Orders 5117 & 5218)
Purchase Order No. Z50791 (Sales Order 5105)
Purchase Order No. 51340015 (Sales Order 5087)
Purchase Order No. GGM57112 (Sales Order 5078)
Purchase Order No. Z50809 (Sales Order 5058)
Purchase Order No. PP5-535015 (Sales Order 4964)
Purchase Order No. Various (Sales Order 4962)
Purchase Order No. 100662000 (Sales Order 4956 & 5126)
Prime Contract Order No. F 00000-00-0000 (Sales Order 4955)
Purchase Order No. KS-612039R (Sales Order 4909)
Purchase Order No. 109177455/459 (Sales Order 4614)
Purchase Order No. C0041/93 (Sales Order 4536)
Purchase Order No. RL1-1200 44 (Sales Order 4283)
Inter Company Work Transfer Agreement ("IWTA") with Lockheed Xxxxxx Integrated
Systems (not yet listed on the Computer Sale Order listing):
TerraCom Purchase Order 1/200-96 (Sales Order 8058)
-2-
Communications Systems
P.O. 940S9011 - A - International Space Station Alpha
MDA904-94-C-B091 - A - LMD/KP 2.0 LRIP
N00024-92-C-4164 - A - AN/STC-2 FY 92-94
N00024-91-C-4122 - A - AN/STC-2 FY 90/91
MDA904-94-C-8028 - A - Nervetrunk HW/SW Supp
N00024-95-C-4079 - A - IVCS FY95/96 Prod
MDA904-94-C-8075 - A - FIRESTAR T&M
MDA904-95-C-4051 - A - STE
NAS 5-32542 - A - NOAA N & N1
P.O. CSD-IMSE-97-003 - A - IMSE Program (FMS)
MDA904-93-G-0055 - 5002 - A - ANSWERER LRIP
N00039-90-C-0011 I - A - IRR Training Support
N00019-95-C-0199 - A - AMODSM
P.O. 0000000000 - A - Common Tier 1
MDA904-96-C-1641 - A - ANSWERER Production
N00039-96-C-0039 - A - Baseband (SBCS) Switch
MDA904-96-D-0025-0005 - A - STE 1st Prod
CLASS 95-C-6880 - A - Centerboard Support
N66001-97-C-0130 - A - XXX Xxxxx Xxxxxxx
X00000-00-X-0000 - A - XXX XXXX XX00-00
X.X. XXX0X0000X - A - D-5 Trans/Preamplifier Inc XII
CLASS 317069 - A - Refurbishment #7
CLASS 97-C-6462 - A - CROSSHAIR
N00383-89-G-K214 - 7004-A - P3C Repairs
DABT63-95-C-0052 - A - IUGS Data Fusion
P.O. CO-7382-SAT - A - NATO PTS
MDA904-95-C-3189 - A - FIREONE
X.X. 0000/0 - X - XXXXXXXX Xxx Xxxxxxx
MDA904-95-C-5554 - A - Microbic Software Support
P.O. 470506 - A - DCR-500 Spares
N00104-96-C-AA33 - A - Depot Repairs
MDA904-94-C-B031 - A - HGPCLSI Study
MDA904-96-C-P018 - A - NUTSEDGE
MDA904-96-C-0291 - A - Maroon Xxxxxx OM&E
Wideband Systems
TACAWS (No. DAAH0l94CR250) - Internal No.: _______
IWTA supporting the Raptor Program - Internal No.: 41812
EIS Support Contract - Internal No.: 400164
IWTA LDS-A2 ENG SU - Internal No.: 400167
IWTA GPS-OCS Support - Internal No.: 400138
BGPHES Production - Internal No.: 41785
-3-
ABIT (Airborne Information Transmission) Phase IV (No. F33657-95-C-5404) -
Internal No. 41786
Ridex (No. F33615-94-C-1566) - Internal No.: 41736
TEUAV Predator (No. N0001994C0069) - Internal No.: 41725
HSS Systems (P.O. #6451) - Internal No.: 41751
IWTA ULTRA-High Resolution Digital Framing Electro-Optical Camera - Internal
No.: 41802
CHBDL (Common High Band Width Data Link) Stage III Production
(N00039-91-C-0027) - Internal Nos. 41800 and 41801
HSS System (P.O. #65586 - Internal No.: 41787
Depot Support Contract (No. SC-96-773043) - Internal No.: 400092
LAMPS Flir (SC No. 608793) - Internal No.: 41724
Predator Support (No. N00019-95-G-0135) - Internal No.: OCB28
National Tests Facility Operations and Maintenance - Internal No.: 400018
IWTA between LMFSC and LMTCS - Internal No.: _______
ISISS Contract - Internal No.: OS4417
GFY 97 Fielded Systems Technology (No. F09604-97-C-0011) - Internal No.: 41797
Tactical Interoperable Ground Data Link Phase I (TIGDL) (No. F0960496-C-0104) -
Internal No. 41788
GFY 96 SR YEA - Internal No.: 41764
Direct Air-Satellite Relay ("DASR") - Internal No.: 41734
Guardrail A/B - Internal No.: 41682
GFY 93 DATALINK (No. F0900493-C-0011) - Internal No.: 41692
GFY 94 Data Link (No. F09604-94-C-0011) - Internal No.: 41717
GFY 95 SR.Y (No. F09604-95-C-0011) - Internal No.: 41735
Advanced Recorders
NOO163-96-D-0007
N00383-96-G-017J
N00383-93-D-033U
Randtron
Purchase Order No. IG0069922
Purchase Order No. SG006881
Purchase Order No. WT26342
Intra Lockheed Work Transfer ("IWT") Purchase Order No. 4325851
Purchase Order 4334545
Purchase Order No. 4325851
Purchase Order Amendment B2C452-95 regarding Job 1500000
Purchase Order No. 21-19577 regarding prime contract number N00019-94-C-0020
Purchase Order No. 21-19577. Amendment 17
Purchase Order No. 22-06002. Amendment 2 referencing Contract N00019-94-C-0020
Purchase Order No. E60119L
-4-
Purchase Order No. 22-12213
Purchase Order Xx. X0000
Xxxxxxxx Xxxxx Xx. 000000X. Chance Order No. 002
Change Order 5 to LSC Work Order S-95-102
Subcontract No. H-1565118
Subcontract 92-7807-G-00l
Master Purchase Order from Lockheed. Ft. Worth
Purchase Order Xx. X0000
Xxxxxx Xxxxxxxx Xxxxx Xx. X0000 for Job Nos. 1880400, 1880500 and 1880600
Contract F42620-93-D-01999
Subcontract S612187RSC
Purchase Order under Contract No. DAAB07-94-DM758
Purchase Order under Contract No. N00019-94-C-0020
Purchase Order to Remec Components dated August 5, 1996
Purchase Order under Contract No. DAAB07-94-D-M758
Display Systems
E-2C Programs. P.O. Nos. 22-12200
2209601
21-75010
4010382
22-09505
590697W
F-14. Development. P.O. No. 19-84457
F-14. Lot 1. P.O. No. 21-39015
V -22. Development. P.O. Nos. AEF960
AEF961
AEF962
AEF963
ADA855
ADA849
V-22. LRIP. X.X. Xxx. XXX000
XXX000
Xxxxxxxx Xx. X00000-00-X-0000
Xxxxxxxx Xx. X00000-00-X-000X
P.O. No. 96054-0519
95342-0844
96068-0563
Doc. =71245
Exhibit E
to Credit Agreement
FORM OF BORROWING CERTIFICATE
Pursuant to subsection 5.1(j) of the Credit Agreement, dated as of
April 30, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among L-3 Communications Corporation, a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties thereto (the "Lenders"), Xxxxxx Commercial Paper Inc.
("LCPI") as Arranger, Syndication Agent, and Documentation Agent, and Bank of
America NT & SA ("BOA"), as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), the undersigned hereby delivers this
Certificate.
The Borrower hereby requests that a [Eurodollar] [Base Rate] Loan be
made in the aggregate principal amount of ________________ on _____________,
[with an Interest Period of __ months].
The undersigned hereby certifies as follows:
(a)The representations and warranties made by the Borrower and each
of its Subsidiaries and each of the other Credit Parties in the Credit
Documents are true and correct in all material respects on and as of the
date hereof with the same effect as if made on the date hereof (except to
the extent they relate to a particular date, in which case they shall
remain true and correct as of such date); and
(b) No Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to the Loans and other extensions
of credit requested to be made on such date.
Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Credit Agreement.
The Borrower agrees that if prior to the time of the borrowing
requested hereby any matter certified to herein by it will not be true and
correct in all material respects at such time as if then made, it will
immediately so notify the Administrative Agent. Except to the extent, if any,
that prior to the time of the borrowing requested hereby the Administrative
Agent shall receive written notice to the contrary from the Borrower, each
matter certified to herein shall be deemed once again to be certified as true
and correct in all material respects at the date of such borrowing as if then
made.
Please wire transfer the proceeds of the borrowing to the account of
the Borrower at ________________ Routing No.: _____________ (Account
No.__________), or as otherwise directed by the Borrower on the attached
Schedule I.
2
The Borrower has caused this Borrowing Certificate to be executed
and delivered, and the certification and warranties contained herein to be made,
by its Responsible Officer this ___ day of ______________________, _____.
L-3 COMMUNICATION CORPORATION
By: ________________________
Name:
Title:
Exhibit F
to Credit Agreement
FORM OF EXEMPTION CERTIFICATE
Referenceis made to the Credit Agreement, dated as of April 30, 1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among L-3 Communications Corporation, a Delaware Corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), Xxxxxx Commercial Paper Inc, ("LCPI") as
Arranger, Syndication Agent and Documentation Agent, and Bank of America NT & SA
("BOA"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Credit Agreement.
_______________________ (the "Non-U.S. Lender") is providing this certificate
pursuant to subsection 2.15(b) of the Credit Agreement. Under penalties of
perjury, the Non-U.S. Lender hereby represents and warrants that:
1.The Non-U.S. Lender is the sole record and beneficial owner of the
Note(s) in respect of which it is providing this certificate and it shall remain
the sole beneficial owner of such Note(s) at all times during which it is the
record holder of such Note(s).
2.The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a)the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other
legal requirements;
(c) the Non-U.S. Lender is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code;
(d) the Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code;
2
3. The Non-U.S. Lender meets all of the requirements under Code
Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of U.S. Taxes on interest payments made to it under the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By: _________________________________
Name:
Title:
Date:___________________
Exhibit G
to Credit Agreement
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of April 30,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among L-3 Communication Corporation, a Delaware
corporation, (the "Borrower"), the Lenders named therein, Xxxxxx Commercial
Paper Inc, ("LCPI"), as Arranger, Syndication Agent and Documentation Agent, and
Bank of America NT & SA ("BOA"), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Assignor identified on Schedule I hereto (the "Assignor") and
the Assignee identified on Schedule I hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule I hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to the credit facility contained in the Credit
Agreement as set forth on Schedule I hereto (the "Assigned Facility"), in a
principal amount for the Assigned Facility as set forth on Schedule I hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Credit Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Credit Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Facility, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 4.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it will, independently and without reliance upon
2
the Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will
be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to subsection 2.15(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule I hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule I hereto.
Schedule I
to Assignment and Acceptance
Name of Assignor: __________________________________
Name of Assignee: __________________________________
Effective Date of Assignment: _________________________
Credit Principal Commitment Percentage Assigned(1)
Facility Assigned Amount Assigned ---------------------------------
----------------- ---------------
$ _______ _______________%
[Name of Assignee] [Name of Assignor]
By: __________________________________ By: __________________________________
Title: Title:
Accepted: Consented To:
BANK XX XXXXXXX XX & XX, X-0 COMMUNICATION CORPORATION(2)
as Administrative Agent
By: __________________________________ By: __________________________________
Title: Title:
----------
(1) Calculate the Commitment Percentage that is assigned to at least 9 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
(2) The Credit Agreement provides that the consent of the Borrower is required
unless the assignee already is a Lender under the Credit Agreement.
Schedule I
To Credit Agreement
Commitments and Addresses
Tranche A Term Tranche B Term Tranche C Term
Revolving Credit Loan Loan Loan
Lenders/Address for Notices Commitment Commitment Commitment Commitment
XXXXXX COMMERCIAL PAPER INC. 4,400,000.00 9,050,000.00 10,000,000.00 6,900,000.00
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
BANK OF AMERICA NT & SA 4,400,000.00 3,300,000.00 0.00 0.00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
CITIBANK, N.A. 4,400,000.00 3,300,000.00 0.00 0.00
CREDIT LYONNAIS, NEW YORK 4,400,000.00 3,300,000.00 0.00 0.00
BRANCH
FLEET NATIONAL BANK 4,400,000.00 3,300,000.00 0.00 0.00
MARINE MIDLAND BANK 4,400,000.00 3,300,000.00 0.00 0.00
BANK OF NOVA SCOTIA 4,400,000.00 3,300,000.00 0.00 0.00
BANKBOSTON, N.A. 4,400,000.00 3,300,000.00 0.00 0.00
THE FIRST NATIONAL BANK OF 4,400,000.00 3,300,000.00 0.00 0.00
CHICAGO
THE FUJI BANK LIMITED NEW 4,400,000.00 3,300,000.00 0.00 0.00
YORK BRANCH
CANADIAN IMPERIAL BANK OF 0.00 1,375,000.00 2,500,000.00 1,650,000.00
COMMERCE
CITIBANK, N.A. 0.00 1,375,000.00 2,500,000.00 1,650,000.00
THE ING CAPITAL SENIOR 0.00 687,500.00 1,250,000.00 825,000.00
SECURED HIGH INCOME FUND, L.P.
KZH HOLDING CORPORATION II 0.00 687,500.00 1,250,000.00 825,000.00
KZH HOLDING CORPORATION 0.00 1,375,000.00 2,500,000.00 1,650,000.00
XXXXXXX XXXXX SENIOR 0.00 1,375,000.00 2,500,000.00 1,650,000.00
FLOATING RATE FUND, INC.
METROPOLITAN LIFE INSURANCE 0.00 1,375,000.00 2,500,000.00 1,650,000.00
COMPANY
OAK HILL SECURITIES FUND, L.P. 0.00 1,375,000.00 2,500,000.00 1,650,000.00
OCTAGON CREDIT INVESTORS 0.00 1,375,000.00 2,500,000.00 1,650,000.00
LOAN PORTFOLIO (a unit of the Chase
Manhattan Bank)
PARIBAS CAPITAL FUNDING LLC 0.00 1,375,000.00 2,500,000.00 1,650,000.00
PILGRIM AMERICA PRIME RATE 0.00 1,375,000.00 2,500,000.00 1,650,000.00
TRUST
PRIME INCOME TRUST 0.00 1,375,000.00 2,500,000.00 1,650,000.00
ROYALTON COMPANY 0.00 1,375,000.00 2,500,000.00 1,650,000.00
CRESCENT / MACH I PARTNERS L.P. 0.00 687,500.00 2,075,000.00 0.00
UNITED COMPANIES LIFE 0.00 687,500.00 425,000.00 1,650,000.00
INSURANCE COMPANY
XXX XXXXXX AMERICAN CAPITAL 0.00 1,375,000.00 2,500,000.00 1,650,000.00
PRIME RATE INCOME TRUST
BANK OF MONTREAL 4,000,000.00 3,000,000.00 0.00 0.00
BANK OF TOKYO - MITSUBISHI 4,000,000.00 3,000,000.00 0.00 0.00
TRUST COMPANY
BANQUE FRANCAISE DU 4,000,000.00 3,000,000.00 0.00 0.00
COMMERCE EXTERIEUR
BHF - BANK 4,000,000.00 3,000,000.00 0.00 0.00
AKTIENGESELLSCHAFT GRAND
CAYMAN BRANCH
CORESTATES BANK, N.A. 4,000,000.00 3,000,000.00 0.00 0.00
XXXXXXX SACHS CREDIT 4,000,000.00 3,000,000.00 0.00 0.00
PARTNERS L.P.
PNC BANK, NATIONAL 4,000,000.00 3,000,000.00 0.00 0.00
ASSOCIATION
SKANDINAVISKA ENSKILDA 4,000,000.00 3,000,000.00 0.00 0.00
BANKEN CORPORATION
SOCIETE GENERALE, NEW YORK 4,000,000.00 3,000,000.00 0.00 0.00
BRANCH
THE SUMITOMO BANK, LIMITED, 4,000,000.00 3,000,000.00 0.00 0.00
XXX XXXX XXXXXX
XXX XXXX XX XXX XXXX 4,000,000.00 3,000,000.00 0.00 0.00
THE MITSUBISHI TRUST AND 4,000,000.00 3,000,000.00 0.00 0.00
BANKING CORPORATION
TRANSAMERICA BUSINESS CREDIT 4,000,000.00 3,000,000.00 0.00 0.00
CORPORATION
U.S. BANK 4,000,000.00 3,000,000.00 0.00 0.00
Schedule II
to Credit Agreement
PRICING GRID
Debt Tranche A Term Tranche A Term Tranche B Tranche B Tranche C Tranche C Commitment
Ratio Loss and Loss and Term Loan Term Loan Term Loan Term Loan Fee*
Revolving Credit Revolving Credit Applicable Applicable Applicable Applicable
Facility Facility Margin- Margin- Margin- Margin-
Applicable Applicable Eurodollar Base Rate Eurodollar Base Rate
Margin-Eurodollar Margin-Base Rate Rate
Rate* Rate*
-------------------------------------------------------------------------------------------------------------------------------
24.75x 225 125 250 150 275 175 50
24.25x 200 100 250 150 275 175 50
23.75x 175 75 250 150 275 175 37.5
23.75x 150 5O 250 150 275 175 37.5
----------
* Notwithstanding the foregoing grid: (a) the Applicable Margin for the
Tranche A Term Loan and the Revolving Credit Facility for the 5 months
following the Closing Date will be 1.25% for Base Rate Loans and 2.25% for
Eurodollar Loans, and (b) the Commitment Fee rate Revolving Credit
Facility for the 5 months following the Closing Date will be 0.50%.
Schedule III
to the Credit Agreement
REAL PROPERTY TO BE MORTGAGED
Property Location
1. 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxx, XX
2. 6755, 6761, 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX
3. 0000 Xxxxxxxxx Xxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx
4. 00 Xxxx Xxxxxx,
Xxxxxx, XX
5. 000 Xxxx Xxxx
Xxxxxxxxx, XX
6. 000 Xxxxxx Xxxxx.
Xxxxxxxxxx, XX
7. 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, XX
8. 0000 Xxxxxx Xxxxxx,
Xxx Xxxxx, XX
Schedule IV
to the Credit Agreement
TRANSACTION DOCUMENTS
1. Transaction Agreement, dated as of March 28, 1997, by and among Lockheed
Xxxxxx Corporation, Xxxxxx Brothers Capital Partners III, L.P., Xxxxx X.
Xxxxx, Xxxxxx X. Xxxxxxx and L-3 Communications Holdings, Inc., as the
same may be amended from time to time.
2. Transfer Agreement, dated as of March 28, 1997, by and between Lockheed
Xxxxxx and L-3 Communications, as the same may be amended from time to
time.
3. Exchange Agreement, dated as of the Closing Date, by and between Lockheed
Xxxxxx Corporation and L-3 Communications Holdings, Inc., as the same may
be amended from time to time.
4. Common Stock Subscription Agreements, dated as of the Closing Date and
entered into by each of Lockheed Xxxxxx and Xxxxxx Brothers Capital
Partners III, L.P., Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, as the same may
be amended from time to time.
5. Stockholders Agreement, dated as of the Closing Date by and among L-3
Communications Holdings, Inc., Lockheed Martin, Lehman Brothers Capital
Partners III, L.P., Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, as the same may
be amended from time to time.
6. L-3 Communications Holdings, Inc., Certificate of Incorporation, as the
same may be amended from time to time.
7. L-3 Communications Holdings, Inc., By-Laws, as the same may be amended
from time to time.
8. Any exhibits or attachments to any of the foregoing.
Schedule 4.4
to the Credit Agreement
REQUIRED CONSENTS
1. Compliance with any applicable requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended.
2. Compliance with any applicable requirements of the New Jersey Industrial
Site Recovery Act.
3. The facilities clearance requirements of the Defense Investigative Service
of the United States Department of Defense ("DIS"), as set forth in the
DIS Industrial Security Regulation and the DIS Industrial Security Manual,
as each may be amended from time to time.
4. The novation of the government contracts as contemplated by Section 7.08
of the Transaction Agreement.
5. Compliance with any applicable requirements of the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, or any state
securities or "Blue Sky" law, in connection with the issuance of the
Subordinated Debt.
6. The Consents and Approvals Required Prior to Closing attached hereto.
7. Such other consents, approvals, authorizations, permits and filings the
failure to obtain or make would not have, in the aggregate, a Material
Adverse Effect on the business conducted by the Borrower.
CONSENTS AND APPROVALS REQUIRED
PRIOR TO CLOSING
Conic Business Unit
1. Permit to Operate Wave Solder Machine - Permit No. 910189.
2. Permit to Operate Paint Spray Xxxxx - Xxxxxx Xx. 000000.
3. Permit to Operate Paint Spray Xxxxx - Xxxxxx Xx. 000000.
4. Permit to Operate Paint Spray Xxxxx - Xxxxxx Xx. 000000.
5. Letter from California Water Resources Control Board dated May 16, 1996
re: acknowledgement of Lockheed as general Permittee.
6. Food Establishment Wastewater Discharge Permit issued on 2/15/96 -
Fac. No. 123-00014, expiration date 11/1/97.
Wideband Systems Business Unit
1. State of Utah, Department of Environmental Quality, Division of Water
Quality, Storm Water Permit No. UTR000412, issued August 13, 1996.
2. Salt Lake City Fire Department Hazardous Material Permit dated January 28,
1997.
3. State of Utah, Department of Environmental Quality, Division of Solid and
Hazardous Waste, EPA Identification No. UTR 000000307, Dated: May 6, 1996.
4. State of Utah, Department of Environmental Quality, Division of Air
Quality, Approval Order No. DAQE-1017-96, Dated: October 30, 1996.
5. Salt Lake City Corporation, Waste Water Division, Department of Public
Utilities, Industrial Wastewater Discharge Permit #8-95-01. Issue Date:
September 24, 1996.
6. Lease: Xxxxxxxxxx Peak, Salt Lake City, Utah (prior landlord consent).
7. Lease: 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX (prior landlord consent).
2
8. Lease dated May 4, 1995 with Xxxxxx Trust & Savings Bank, as amended
(prior landlord consent).
9. Lease dated May 5, 1995 with Xxxxxx Xxxxxxxxxxx, as amended (prior
landlord consent).
10. Lease dated November 1, 1995 with KSL, as amended (prior landlord
consent).
11. Lease dated February 1, 1992 with The Mutual Life Insurance Company of
New York, as amended (prior landlord consent).
12. Lease dated November 15, 1984 with Airport Business Park Limited
Partnership, as amended (prior landlord consent).
13. Lease dated May 31, 1996 between The Prudential Insurance Company of
America, a New Jersey corporation, as landlord, and Lockheed Xxxxxx IMS,
as tenant, a portion of the premises of which are sublet to the business
unit (prior landlord consent).
14. Software license with Mentor Graphics dated July 1, 1995 (consent of third
party).
Randtron Business Unit
1. Three 1997 Fire Protection Permits issued by the Menlo Park Fire
Protection District.
2. Notice of Intent Forms for permitted facilities showing the change of name
and transmittal letter to the State Water Resources Control Board dated
4/30/96.
3. Mandatory Wastewater Discharge Permit WB 960401-4 issued by South Bayside
System Authority and transmittal letter dated 10/30 - 11/8/96.
4. Mandatory Wastewater Discharge Permit WB 960401-1 issued by South Bayside
System Authority and transmittal letter dated 10/30 - 11/8/96.
5. Permit to Operate for Plant No. 2877 issued by the Bay Area Air Quality
Management District with expiration date of 12/1/97.
6. Permits to Operate Liquified Petroleum Gas Tank Nos.: 20501-86, 1598-72,
3181-87, 3182-87, 3188-87, 865-83, 3302-91, 21025-88, 3182-91, all issued
by the Division of Occupational Safety and Health.
3
7. Renewal of Radiation Machines Tubes Registration sent by the Department of
Health Services Radiological Health Branch dated 3/8/96.
8. Lease: 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX (prior landlord consent).
9. Lease: 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX (prior landlord consent).
10. Lease: 0000 Xxxxxx Xxx, Xxxxxxx, XX (prior landlord consent).
11. Lease: Ox Mountain, San Mateo County, CA (prior landlord consent).
12. Lease: Skylawn, 00000 Xxxxxxx Xxxx., Xxxxxxx, XX (prior landlord consent).
13. Lease Agreement dated December 19, 1971 with Prime Ventures, Ltd., as
amended (prior landlord consent).
14. Standard Industrial Lease dated September 1, 1981 with Menlo Associates,
as amended (prior landlord consent).
15. Lease Agreement dated February 4, 1985 with C&M Investments, as amended
(prior landlord consent).
16. Standard Industrial Lease Agreement with Xxxxx X. and Xxxxxx X. Xxxx dated
November 21, 1984, as amended (prior landlord consent).
17. Lease Agreement dated May 1, 1994 with Xxxxxxxx X. Xxxxxx, Trustee for
Xxxx Eberstand Xxxxx Trust and Xxxxxxxx Xxxxxxxx Xxxxx Trust, as amended
(prior landlord consent).
18. Lease Agreement dated as of February 15, 1972 with Skylawn, a California
corporation (prior landlord consent).
19. Lease Agreement dated November 19, 1995 with Xxxxx X. Xxxxxxx, as amended
(prior landlord consent).
Xxxxx Microwave West Business Unit
1. Permit Tracking Report dated 2/24/97. (To the extent this tracking report
lists environmental permits not otherwise listed in Schedule B.03 to the
Transaction Agreement, we would like those permits as well.)
4
2. Sacramento Metropolitan Air Quality Agreement District Permit No. 10043 to
operate Vapor Degreaser, expires 7/1/93.
3. Renewal Invoice No. 950016 due 3/21/96 for Permit No. 10043.
4. Renewal of Radiation Machine (Tubes) Registration No. C0049556 dated
10/11/95.
5. Air Quality Permit No. 10043 issued by the Sacramento Metropolitan Air
Quality Management District to operate a vapor degreaser.
6. Lease dated August 15, 1996 with Lincoln-Whitehall Pacific, L.L.C. (prior
landlord consent).
7. Lease dated February 15, 1991 with 11,000 White Rock Limited Partnership,
as amended (prior landlord consent).
8. Lease dated May 31, 1996 between The Prudential Insurance Company of
America, a New Jersey corporation, as landlord, and Lockheed Xxxxxx IMS,
as tenant, a portion of the premises of which are sublet to the business
unit (prior landlord consent).
Xxxxx East Business Unit (Includes FSI - Semiconductor)
1. EPA Notification of Hazardous Waste Activity dated: 5/20/96 (no expiration
date) (authorizes hazardous waste activities)
2. Suffolk County Sewer District #18 Discharge Certification permit number:
018-001-0028 expires: 8/2/98
(authorizes industrial wastewater pretreatment and discharge limitations)
3. N.Y.S.D.E.C. Air Emissions Permit(s), permit number: 0-0000-00000/00001-0
and 00003 through 00026
expires: 11/18/97
(authorizes 24 process air emission plants)
4. N.Y.S.D.E.C. Air Emissions Permits, permit number: 0-0000-00000/00002-0
expires: 11/19/97
(authorizes operation of one stationary combustion unit)
5. Suffolk County Storage Facility for Toxic and Hazardous Materials
expires: 5/31/97
(authorizes storage and handling of toxic and hazardous materials)
5
6. D.O.T. Hazardous Materials Certificate of Registration Reg. No.: 052196
011 003E, expires: 6/30/97
(authorizes shipments of hazardous materials)
7. Town of Smithtown Fire Prevention
permit number: 96-5175 (flammable hazardous materials)
permit number: 96-0621 (cutting and welding)
permit number: 96-0622 (Spray booth)
permit number: 96-0620 (compressed gases)
expire: 9/97 (for all)
8. Lowell, MA Wastewater Permit--Industrial user Permit No. 031.
9. Net Leases dated April 1, 1985 with Xxxxx X. Xxxxxxxx et al., as amended
(prior landlord consent).
Hycor Business Unit
1. Massachusetts permit for Class C Explosives dated November 15, 1996.
2. Massachusetts permit for various fluids dated June 9, 1996.
3. U.S. Hazardous Materials registration dated May 21, 1996.
4. U.S. Department of Transportation Explosives shipment authorization dated
August 17, 1988.
5. Massachusetts permit for Class B and Class C Explosives dated October
23, 1996.
6. Massachusetts License for Class B Explosives dated December 19, 1984.
7. Massachusetts License for Class A Explosives dated October 4, 1988.
8. Massachusetts Regulation for Flamables/Explosives dated March 11, 1996.
9. Lease of explosive test site commencing January 31, 1983 with Bene Vento
Sand and Gravel, Inc., as amended (prior landlord consent).
Display Systems Business Unit
1. Radioactive Materials License - issued by Georgia Department of Natural
Resources
(one in line air deionizer)
6
2. LMDS Environmental Radioactive Materials License by GADNR referenced in
3.26.96 memo to X. Xxxxx from X. Xxxxxxxx.
3. Lease: 0000 Xxxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxx, XX (prior landlord
consent)
4. Lease, dated August 11, 1992 with D&B No.3, a Georgia partnership, as
amended (prior landlord consent).
Advanced Recorders Business Unit
1. Air Agency Certificate No. LD7R612J dated May 24, 1994.
2. Air Agency Certificate No. MMF321-14 dated June 7, 1996.
3. Storm Water General Permit Coverage Notice - Permit No. FLR00B068 issued
by the U.S. Environmental Protection Agency.
4. Matters referred to in letter dated 9/12/96 from Florida Department of
Environmental Protection accepting transfer of Post Closure Permit No.
HF58-271405 and to the extent not already incorporated by reference, the
facility's water use and HSWA permits.
Communications Systems Business Unit
1. U.S. Nuclear Regulatory Commission Materials License No. 00-00000-00.
2. New Jersey Radioactive Materials Registration, Department of Environmental
Protection, Bureau of Environmental Radiation, NRC License No.
00-00000-00.
3. Registration of x-ray machine source equipment with the State of New
Jersey, Department of Environmental Protection, Bureau of Radiological
Health, NJDEP Registration Numbers 101424, 102952, 103062, 103071, 103454
and 103503, "Registration of a Radiation Producing Machine."
4. The Camden County Municipal Utilities Authority, Industrial Discharge
Final Permit Numbers 3669-CA-1 and 3669-CA-2.
5. New Jersey Department of Environmental Protection, Bureau of New Source
Review, Form VEM-040, Report on Amendment to Permits to Construct, Install
or Alter Control Apparatus or Equipment and Certificates to Operate
Control Apparatus or Equipment. NJ Stack ID
7
Nos. 001, 002, 003, 005, 006, 007, 008, 009 and 010 at NJ Xxxxx XX 00000.
6. State of New Jersey, Department of Community Affairs, Division of Fire
Safety, Life Hazard Use Certificate of Registration.
7. Approval pursuant to the New Jersey Industrial Site Recovery Act of the
Transaction.
Telemetry & Instrumentation Business Unit
1. Lease: 00000 Xxxxxx xx Xxxxxxx, Xxx Xxxxx, XX (prior landlord consent).
2. 0000 Xxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, XX (prior landlord
consent).
3. Lease dated April 13, 1988 between Scripps Del Norte Center, Ltd. and
Xxxxx, Inc., as amended (prior landlord consent).
4. Lease Agreement dated July 20, 1989 between Xxxxxx Xxxxxxx and Loral, as
amended (prior landlord consent).
5. Commercial Lease dated February 22, 1996 with Westcourt Center Partnership
(prior landlord consent).
Chief Executive Office
1. Lease Agreement with 000 Xxxxx Xxxxxx Associates (prior landlord consent).
Schedule 4.5
to the Credit Agreement
NO LEGAL BAR
o Novations referred to in Section 6.13 of the Credit Agreement.
o Consents of the lessors of the real property referred to in
subsection 6.15(b).
Schedule 4.6
to the Credit Agreement
MATERIAL LITIGATION
o Universal Navigation Corp., et al. v. Loral Corporation, et al.: the
Borrower's Aviation Recorders operation ("Aviation Recorders") is
subject to a suit by Universal Avionics Systems Corporation
("Universal"). Universal is seeking to recover at least $15 million
in damages it alleges it incurred as a result of certain actions by
Aviation Recorders in the cockpit voice recorder ("CVR") business.
If this matter were determined adversely to the Borrower in a
non-appealable final judgment, the Borrower could also be subject to
treble damages. Universal's complaint contains the following claims:
(i) antitrust claims alleging that Aviation Recorders has attempted
to monopolize the CVR business by, among other things, its
institution and maintenance of a bid protest, "petitioning" of the
Federal Aviation Administration and foreign aviation authorities
regarding CVR certification requirements and its marketing
activities, and (ii) Xxxxxx Act and common law claims arising out of
alleged false statements regarding Universal's or Aviation
Recorders' CVRs. Management believes that there are substantial
defenses to Universal's claims and intends to defend itself
vigorously.
Schedule 4.8 to the
Credit Agreement
ADVANCED RECORDERS BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
1. Professional Office Lease between Loral and Sarasota County dated
October 24, 1995.
(i) 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
(ii) Loral Data Systems, Inc.
Encumbrances:
a. Professional office lease between Loral and Sarasota County
dated October 24, 1995.
b. Professional office lease between Lockheed Xxxxxx Advanced
Recorders and Medical Education Technologies, Inc. dated March
10, 1997.
COMMUNICATIONS SYSTEMS BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
NONE
CONIC BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
1. (i) 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
(ii) LMADO
DISPLAY SYSTEMS BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
1. Peachtree Facility
(i) Address - Building 1: 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.,
Xxxxxxx, XX 00000
Address - Building 2: 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.,
Xxxxxxx, XX 00000
Address - Building 3: 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.,
Xxxxxxx, XX 00000
(ii) Owner - Lockheed Xxxxxx Tactical Systems, Inc.
2. Alpharetta Facility
(i) 0000 Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000
(ii) Owner - LMC Properties, Inc.
Warranty Deed dated 7/1/96 between AEL Industries, Inc. and
LMC Properties, Inc.
Note: Owned subject to the following encumbrances:
BlueGrass, Ltd.: Declaration of Easements
BlueGrass, Ltd.: Access and Utilities Easement
BlueGrass, Ltd.: Temporary Construction Access Easement
BlueGrass, Ltd.: Water Retention and Detention Easements
HYCOR BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
1. (i) Address: 000 Xxxx Xxxx, Xxxxxxxxx, Xxxx. 00000
(ii) Owner: Lockheed XXxxxx Tactical Systems, Inc.
2. (i) Address: 00 Xxxx Xxxxxx, Xxxxxx, Mass. 01801
(ii) Owner: Lockheed Xxxxxx Tactical Systems. Inc.
MICROCOM BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
1. (i) Address: 000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx, XX
00000
(ii) Owner: Microcom Corporation
XXXXX EAST BUSINESS UNIT
(INCLUDES FSI - SEMICONDUCTOR)
REAL PROPERTY
I. Owned Real Property
1. New York
(i) Address: 000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
(ii) Owner: The Xxxxx Microwave Corporation
XXXXX MICROWAVE WEST BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
NONE
RANDTRON BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
NONE
TELEMETRY & INSTRUMENTATION BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
NONE
WIDEBAND SYSTEMS BUSINESS UNIT
REAL PROPERTY
I. Owned Real Property
1. Offer to Purchase the following real property [ST-H-6(a)]:
Building B
(i) Address: 000 Xxxxx 0000 Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
(ii) Owner: Unisys Master Pension Trust Corporation;
2. Offer to Purchase the following leased property:
Building E
(i) Address: 000 Xxxxx 0000 Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
(ii) Owner: Unisys Master Pension Trust Corporation;
Building F
(i) Address: 000 Xxxxx 0000 Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
(ii) Owner: Unisys Master Pension Trust Corporation.
Schedule 4.9 to the
Credit Agreement
ADVANCED RECORDERS BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
1. CPS-100 Non-Exclusive Licensing Agreement between Loral and
Xxxxxxx/Xxxx dated October 11, 1995.
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
II. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
NONE
COMNILNICATIONS SYSTEMS BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances where Lockheed Xxxxxx does not own, free and
clear of all Liens all right, title and interest in Intellectual Property
used primarily in the Business:
NONE
II. The following are instances where the use of such Intellectual Property in
connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of any other Persons:
NONE
III. The following are instances where Lockheed Xxxxxx does not have the right
to use all Intellectual Property used by the Business and necessary for
the continued operation of the Business in substantially the same manner
as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) which Lockheed Xxxxxx does not have the
right to transfer or license to the Business and which are necessary for
the continued operation of the Business as a whole in substantially the
same manner as its operations have heretofore been conducted:
NONE
CONIC BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
NONE
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
II. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
NONE
DISPLAY SYSTEMS BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
NONE
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
II. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
NONE
HYCOR BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
NONE
MICROCOM BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
NONE
I.
II.
II.
IV.
XXXXX EAST BUSINESS UNIT
(INCLUDES FSI - SEMICONDUCTOR)
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
NONE
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
II. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
1. Letter dated 8/29/89 from The Xxxxx Microwave Corporation to
Xx. Xx X. Xxxxxx (letter agreement granting Xxxxx exclusive
rights to certain inventions of Xx. Xxxxxx, including the
right to patent)
XXXXX MICROWAVE WEST BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
1. License for very small aperture transceiver with Titan Corporation
dated 2/9/95.
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
III. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
1. License for very small aperture transceiver with Titan
Corporation dated 2/9/95.
RANDTRON BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
The items and matters listed on Schedule B.10.III are incorporated
herein by reference
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
II. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
NONE
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
1. License Agreement between Loral and DataViews Corporation executed
on 1/26/95 and 1/20/95, together with Letter Amendment dated
8/28/96.
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
NONE
II. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
NONE
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
NONE
WIDEBAND SYSTEMS BUSINESS UNIT
INTELLECTUAL PROPERTY
CLAIMS
I. The following are instances in which Lockheed Xxxxxx does not own, free
and clear of all Liens all right, title and interest in Intellectual
Property used primarily in the Business:
1. Unisys has not yet provided Assignment documents for a number of
patents and patent applications developed at Wideband Systems.
2. Allegation by Purdue that Unisys/Loral (Wideband Systems) has
infringed two Purdue patents (4,191,031 and 4,222,115); Loral sent
a response on 3/1/96 denying any infringement; no further
correspondence has been received from Purdue.
3. Unisys claims that it should have retained ownership to two patent
applications which Loral claimed ownership to; these are on the
Transferred Asset List (08/606,285 and 08/606,378); Lockheed Xxxxxx
has taken the position that they are owned by Lockheed Xxxxxx.
4. Additional payments and royalties are due to Unisys in connection
with the license of Fixed Wireless Corp. technology.
II. The following are instances in which the use of such Intellectual Property
in connection with the operation of the Business as heretofore conducted
conflicts with, infringes upon or violates the intellectual property
rights of other Persons:
1. None
III. The following are instances in which Lockheed Xxxxxx does not have the
right to use all Intellectual Property used by the Business and necessary
for the continued operation of the Business in substantially the same
manner as its operations have heretofore been conducted:
1. Software license with Mentor Graphics dated July 1, 1995, permits
assignment to a successor in interest with 60 days advance notice
and subject to Mentor Graphics' then current transfer policy and
associated transfer fees.
WIDEBAND SYSTEMS BUSINESS UNIT
IV. The following is a list of any Intellectual Property, (patents,
copyrights, trademarks, etc.) that Lockheed Xxxxxx does not have the right
to transfer or license to the Business and which are necessary for the
continued operation of the Business as a whole in substantially the same
manner as its operations have heretofore been conducted:
None
DRAFT
Schedule 4.10
to the Credit Agreement
TAXES
NONE
Schedule 4.14
to the Credit Agreement
SUBSIDIARIES
NONE
Schedule 4.17 to the
Credit Agreement
FILING JURISDICTIONS
UCC-1 Financing Statements
I. ALABAMA
a. Alabama (Secretary of State)
x. Xxxxxxx County, Alabama
II. ARIZONA
a. Arizona (Secretary of State)
b. Maricopa County, Arizona
III. CALIFORNIA
a. California (Secretary of State)
b. Los Angeles County, California
c. Sacramento County, California
d. San Diego County, California
e. San Mateo County, California
f. Santa Xxxxx County, California
g. Santa Xxxxx County, California
x. Xxxxxxx County, California
IV. COLORADO
a. Colorado (Secretary of State)
b. El Paso County, Colorado
V. XXXXXXX
x. Georgia (Secretary of State)
x. Xxxxxx County, Xxxxxxx
x. Gwinnett County, Georgia
VI. FLORIDA
a. Florida (Secretary of State)
b. Brevard County, Florida
c. Sarasota County, Florida
VII. MASSACHUSETTS
a. Massachusetts (Secretary of State)
b. Haverhill, Massachusetts
c. Lowell, Massachusetts
d. Wilmington, Massachusetts
e. Woburn, Massachusetts
VIII. NEW JERSEY
a. New Jersey (Secretary of State)
b. Camden County, New Jersey
IX. NEW YORK
a. New York (Secretary of State)
b. Suffolk County, New York
c. New York County, New York
X. PENNSLYVANIA
a. Pennsylvania (Secretary of State)
b. Bucks County, Pennslyvania
x. Xxxxxxxxxx County, Pennslyvania
XI. UTAH
a. Utah (Secretary of State)
b. Salt Lake County, Utah
c. Tooele County, Utah
Patent and Trademarks
I. U.S. Patent and Trademark Office
Mortgages
I. CALIFORNIA
a. San Diego County, California
II. FLORIDA
a. Sarasota County, Florida
III. XXXXXXX
x. Xxxxxx County, Atlanta
IV. MASSACHUSETTES
a. Essex County, Massachusettes
b. Middlesex County, Massachusettes
V. NEW YORK
a. Suffolk County, New York
VI. PENNSYLVANIA
a. Bucks County, Pennsylvania
Schedule 6.5
to the Credit Agreement
INSURANCE
During the term of this contract, L3 Communications will maintain insurance
coverage for amounts not less than those shown below, and with deductibles
and/or self-insurance amounts not greater than those shown below:
Insurance Amounts to be Insured/ Deductibles
--------- Limits of Liability Retentions (Self Insurance)
------------------- ---------------------------
"All Risks" Property $100,000,000 Loss Limit $1,500,000 per occurrence
including Transit, Business with various sub-limits except 10% of Total
Interruption and Boiler for flood, earthquake, Insured value per location
& Machinery including windstorm and with respect to Flood &
Flood & Earthquake miscellaneous coverages. Earthquake.
Replacement Cost
Valuation.
Marine Cargo & Transit $1,000,000 $5,000
Workers Compensation Statutory $1,000,000
and Employers Liability $1,000,000 combined
Automobile Liability $1,000,000 $250,000
General Liability including $1,000,000 $250,000
Non-Aviation Products
Liability
Excess (Umbrella) Liability $10,000,000 Excess of above primary
Liability policies
Aviation Products Liability $100,000,000 $5,000,000
Schedule 6.10
to the Credit Agreement
CERTAIN REAL PROPERTY
Part I
1. 00 Xxxx Xxxxxx
Xxxxxx, XX
2. 000 Xxxx Xxxx
Xxxxxxxxx, XX
Part II
1. 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxx, XX
2. 6755, 6761, 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX
3. 0000 Xxxxxxxxx Xxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx
4. 00 Xxxx Xxxxxx,
Xxxxxx, XX
5. 000 Xxxx Xxxx
Xxxxxxxxx, XX
6. 000 Xxxxxx Xxxxx,
Xxxxxxxxxx, XX
7. 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, XX
8. 0000 Xxxxxx Xxxxxx,
Xxx Xxxxx, XX
Part III
1. 6755, 6761, 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxx, XX
Schedule 7.2(f)
to thc Credit Agreement
EXISTING INDEBTEDNESS
Division Amount Description
-------- ------ -----------
Microcom Business $280,439 Two capitalized leases for
Unit equipment
Schedule 7.3(f)
to the Credit Agreement
EXISTING LIENS
As of April 30, 1997, the following lien search results have not yet been
received:
(i) Microcom Inc. - Xxxxxxxxxx County PA
(ii) Lockheed Xxxxxx Corporation - Wilmington, MA and Lowell, MA
(iii) Loral Corporation - Wilmington, MA and Lowell, MA
(iv) Lockheed Xxxxxx Tactical Systems - Wilmington, MA and Lowell, MA
(v) Hycor Inc. - Wilmington, MA and Lowell, MA
(vi) Lockheed Xxxxxx FSI - Secretary of State, MA, Middlesex County, MA and
Woburn, MA
(vii) L-3 Communications Holdings, Inc. - New York County, NY
(viii) X-0 Xxxxxxxxxxxxxx Xxxxxxxxxxx - Xxx Xxxx Xxxxxx, XX
(ix) Xxxxx Microwave Corporation - Sacramento County, CA
(x) Wideband Systems - Tooele County, UT
Liens may be in existence that would be reflected in search results not yet
received. This chart may be updated to reflect such liens.
Jurisdiction Secured Party File No. Collateral
(Date)
-------------------------------------------------------------------------------------------------------------
Bucks Co., Meridian Leasing Inc. 92-61739 Used Machining
PA P0 Box 15204 (5/21/92) Center
Xxxxxxx, XX 00000-0000
(Lessor)
-------------------------------------------------------------------------------------------------------------
Bucks Co., Meridian Leasing Inc. 92-61740 Various Computer
PA P0 Box 15204 (5/27/92) Equipment, Computer
Xxxxxxx, XX 00000-0000 Peripherals
(Lessor)
-------------------------------------------------------------------------------------------------------------
Bucks Co. Meridian Leasing Inc. 10746 Telemetry System
PA P0 Box 15204 (10/12/93) Xxxxxx
Xxxxxxx, XX 00000-0000
(Lessor)
-------------------------------------------------------------------------------------------------------------
CA General Electric Capital Computer Leasing 94007615 All Equipment Leased
Corporation (1/14/94) Under Master
0000 Xxxxxx Xxxxxx, Xxxxx 000 Equipment Lease
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
CA JLA Credit Corporation 9613560590 Rolm Phone System
000 X. 000xx Xxxxxx, Xxxxx 000 (5/13/96)
Xxxxxxxx, XX 00000
(Lessor)
-------------------------------------------------------------------------------------------------------------
CA Konica Business Machines 9702260022 Photocopier Machine
500 Day Hill Road (1/21/97)
Xxxxxxx, XX 00000
Sanwa Leasing Corporation
X.X. Xxx 0000
Xxxx. XX 00000
-------------------------------------------------------------------------------------------------------------
CA LPI Software Funding Group, Inc. 9705160201 Various Computer
One Glenhardie Corp. Center (2/13/97) Software, Software
0000 Xxxxxxxx Xxxx Licenses and Software
Xxxxx, XX 00000 Agreements
-------------------------------------------------------------------------------------------------------------
CA MetLife Capital Credit Corporation 88089181 Various Computer
Ten Stamford Forum (4/15/88) Equipment, Material
Xxxxxxxx, XX 00000 Handling Equipment
and Laboratory Testing
Continuation: 5716188-007 Equipment
- new name: MetLife Capital Corporation (3/01/93)
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
CA NationsBanc Leasing Corporation of 9435160029 Airframe, Engines,
North Carolina (12/15/94) Equipment
NationsBank Corporate Center
000 X. Xxxxx Xxxxxx, XX 1-007-12-01
Xxxxxxxxx, XX 00000-0000
(Lessor)
Xxxxx Xxxx, as Trustee UTC MCLP Aircraft
Leasing Trust Agreement Dated as of
November 16, 1993
10900 XX 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
CA Security Leasing Services, Inc. 93191792 Various Alarm System
0000-X X.X. Xxxxxx Xxxx (9/20/93) Equipment
Xxxxxx Xxxx, XX 00000
Avco Leasing Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
Camden EUA Cogenex Corp. 0457-96 Various Energy
Co., NJ Boott Xxxxx South (2/27/96) Efficient Lighting
100 Foot of Xxxx Xxxxxx Xxxxxxxx
Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Camden EUA Cogenex Corp. 0458-96 Various Energy
Co., NJ Boott Xxxxx South (2/27/96) Efficient Lighting
100 Foot of Xxxx Xxxxxx Xxxxxxxx
Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
FL Data & Electronic Services, Inc. 960000153545 Key Service Unit.
X.X. Xxx 0000 (7/24/96) LCD Display Kit,
Xxxxxx, XX 00000 Telephone Line
Protector, Battery
Backup Kit
-------------------------------------------------------------------------------------------------------------
FL El Camino Resources, Ltd. 970000077136 Equipment Leased
00000 Xxxxxx Xxxxxx Xxxx (4/11/97) Under Master Lease
Xxxxxxxx Xxxxx, XX 00000
(Lessor)
Republic National Bank of New York
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
FL IBM Federal Government Systems 950000246073 Model 9672 R21 and
0000 Xxxxxxxxx Xxxxx (12/08/95) Software Licenses
Xxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
FL Orbotech, Inc. 960000051936 Automated Optical
00 Xxxxxxx Xxxx (3/14/96) Inspection System
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Xxxxxx Co., Canon Financial Services Inc. 000000000 Fax Machine
GA 000 Xxxxxxxx Xxxxxx Xxxx. (6/14/93)
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Xxxxxx Co., Canon Financial Services Inc. 000000000 Fax Machine
GA 000 Xxxxxxxx Xxxxxx Xxxx. (7/21/93)
Xxxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Xxxxxx Co., Cencor Capital Inc. 000820250 Leased Computer
GA 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000 (11/8/94) Software
Xxxxxxxxxxx, Xxxxxxxx 00000
Winona National and Savings Bank
X.X. Xxx 000, 000 Xxxx Xxxxxx
Xxxxxx XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
Xxxxxx Co., Cencor Capital Inc. 000820976 Leased Computer
GA 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000 (11/28/94) Software
Schaumburge, Ill. 60173-5129
Pioneer Bank and Trust Company
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
Xxxxxx Co., Memorandum of lease between Xxxxx X. Deed Book Memorandum of lease
GA Rowan and Xxxxx Xxxxxx of 5.70 acres of 2631 Pg. 261
property leased at (3/25/71)
0000-0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.
Xxxxxxx, XX 00000. Lease expires July 2031.
-------------------------------------------------------------------------------------------------------------
GA BancBoston Leasing Inc. 000-00-000000
Statewide 000 Xxxxxxx Xxxxxx (4/09/97)
Authority Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
GA The Commonwealth of Australia 000-00-000000
Statewide Resident Project Team (RAAF) (9/20/96)
Authority Bldg. B95, 00 Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000-0000
-------------------------------------------------------------------------------------------------------------
GA Fleet National Bank 000-00-000000 Equipment and
Statewide 000 Xxxx Xxxxxx (4/01/97) Fixtures
Authority Xxxxxxxx, XX 00000
Meridian Trust Company (as Security Trustee)
X.X. Xxx 00000, 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
GA Fleet National Rank 00520-0838 Equipment and
Statewide 000 Xxxx Xxxxxx (8/21/95) Fixtures
Authority Xxxxxxxx, XX 00000
Meridian Trust Company
00 Xxxxx Xxxxx Xxxxxx 000-00-000000
Xxxxxxx, XX 00000 (9/17/96)
(Assignee)
-------------------------------------------------------------------------------------------------------------
GA Fleet National Bank 000-00-000000 Equipment and
Statewide 000 Xxxx Xxxxxx (7/13/95) Fixtures
Authority Xxxxxxxx, XX 00000
Meridian Trust Company, (as Security 000-00-000000
Trustee) (9/17/96)
X.X. Xxx 00000
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
GA IBM Credit Corporation 033-97-00l377 Equipment
Statewide 0000 Xxxxxxxxxxx Xxxxxx (1/27/97)
Authority Xxxxx Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
GA Leasing Solutions, Inc. 007-96-[ILLEGIBLE] ?
Statewide 00 Xxxxxxx Xxxx., Xxxxx 0000 (11/06/96)
Authority Xxx Xxxx, XX 00000
The First National Bank of Boston, as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
GA Leasing Solutions, Inc. 000-00-000000 ?
Statewide 00 Xxxxxxx Xxxx., Xxxxx 0000 (7/12/96)
Authority Xxx Xxxx, XX 00000
The First National Bank of Boston, as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
GA Leasing Solutions, Inc. 007-96-006686 ?
Statewide 00 Xxxxxxx Xxxx., Xxxxx 0000 (12/24/96)
Authority Xxx Xxxx, XX 00000
The First National Bank of Boston, as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
GA Pitney Xxxxx Credit Corporation 000-00-000000 ?
Statewide 201 Xxxxxxx Seven (4/08/97)
Authority Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
[ILLEGIBLE] Shawmut Bank Connecticut, National ? ?
Statewide Association
Authority 000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Meridian Trust Company (As Secured
Trustee)
X.X. Xxx 00000
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
GA Xxxxxx Xxxxxxxxxxx 000-00-000000 Goods/Inventory
Statewide 0000 Xxxxxxx Xxxxxxxx Xxxx (9/09/96)
Authority Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Los Angeles NationsBanc Leasing Corporation of 9519260254 Airframe, Engines,
CA North Carolina Equipment
NationsBank Corporate Center
000 X. Xxxxx Xxxxxx, XX 1-007-12-01
Xxxxxxxxx, XX 00000-0000
(Lessor)
Xxxxx Xxxx, as Trustee UTC MCLP Aircraft
Leasing Trust Agreement Dated as of
November 16, 1993
10900 XX 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
[ILLEGIBLE] VMX Credit Corporation 099181 Port Line Card and
0000 Xxxxxx Xxxx, Xxxxx 000 (6/23/92) Names Directories
Xxx Xxxx, XX 00000
Hewlett-Packard Company 1563652 All Equipment leased
Finance & Remarketing Division (4/08/94) pursuant to Financing
0000 Xxxxx Xxxx Agreement No. 4126-
Sunnyvale, CA 94086 99911
-------------------------------------------------------------------------------------------------------------
[ILLEGIBLE] ICX Corporation 1701385 Various Computer
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 5/30/95 Equipment, Electrical
Xxxxxxxxx, XX 00000 Equipment, Machine
Tools
Hitachi Credit America Corp.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
[ILLEGIBLE] ICX Corporation 1717811 Various Computer
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (8/19/95) Equipment, Computer
Xxxxxxxxx, XX 00000 Software
Hitachi Credit America Corp.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1720128 Various Computer
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (9/4/96) Equipment, Computer
Xxxxxxxxx, XX 00000 Peripherals
Hitachi Credit America Corp.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1747596 Various Engineering
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (2/03/97) Devices, Electrical
Xxxxxxxxx, XX 00000 Equipment
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1744893 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (0/00/00)
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1744896 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (0/00/00)
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1744898 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (0/00/00)
Xxxxxxxxx, XX 0000x
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1744901 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (0/00/00)
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1751955 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (0/00/00)
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1744966 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000 (0/00/00)
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NJ ICX Corporation 1749533 Various Equipment
0 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NJ National Micrographics Systems Inc 1750326 Various Equipment,
00000 Xxxxxxxxxxx Xxx (2/10/97) Printer
Xxxxxx Xxxxxx, XX 00000
Norwest Financial LSG
X.X. Xxx 00000
Xxxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
NJ Pitney Xxxxx Credit Corporation 1672723 All Equipment subject
000 Xxxxxxx Xxxxx (12/21/95) to Lease #0196741-
Xxxxxxx, XX 00000 001
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
NJ Telecom Financial Services 1717308 Leased Equipment
000 Xxxxxx Xxx (0/00/00)
Xxxxxxxxx, XX 00000
(Lessor)
-------------------------------------------------------------------------------------------------------------
NY BancBoston Leasing Inc. 071460 Various Computer
000 Xxxxxxx Xxxxxx (4/10/97) Equipment, Computer
Xxxxxx, XX 00000 Peripherals, Computer
Software
-------------------------------------------------------------------------------------------------------------
NY Canon Financial Services, Inc. 067688 Graphics
000 Xxxxxxxx Xxxxxx Xxxx. (4/04/97)
Xxxxxxxxxx, XX 00000
(Lessor)
-------------------------------------------------------------------------------------------------------------
NY Digital Financial Services, a division of GE 091925 All Equipment
Capital Corp. (5/07/96) Pursuant to DFS
0000 Xxxxxxxx Xxxxx Lease Agreement No.
Xxxxxxxxxxx, XX 00000 6608812-001
-------------------------------------------------------------------------------------------------------------
NY El Camino Resources, Ltd. 073271 Various Computer
00000 Xxxxxx Xxxxxx Xxxx (4/11/97) Equipment, Computer
Xxxxxxxx Xxxxx, XX 00000 Peripherals,
Computer Software
Republic National Bank of New York
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
NY Fleet National Bank 057968 Machine Tools,
000 Xxxx Xxxxxx (3/21/97) Production Equipment
Xxxxxxxx, XX 00000
(Lessor)
Meridian Trust Company
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
NY Fleet National Bank 057971 Machine Tools,
000 Xxxx Xxxxxx (3/21/97) Production Equipment
Xxxxxxxx, XX 00000
Meridian Trust Company
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
NY General Electric Capital Corporation 109401 Universal Turning
0000 Xxx Xxxxxx (5/28/92) Centers, Universal
Xxxxx Xxxx, XX 00000 Chucking Centers
-------------------------------------------------------------------------------------------------------------
NY Liquid Carbonic lndu. Gases 098236 Lease of 6 Ton Vessel
0000 Xxxx Xx. Xxxx (0/00/00)
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
NY Meridian Trust Company 057934 Amendment of
00 Xxxxx Xxxxx Xxxxxx (3/21/97) #177404
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
NY Metlife Capital Credit Corp. 065584 All Equipment Leased
Ten Stamford Forum (3/15/88) Under Master
Xxxxxxxx, XX 00000 Equipment Lease
Agreement Dated
3/02/88
Continuation: 044207
- new name: MetLife Capital Corporation (3/02/93)
-------------------------------------------------------------------------------------------------------------
NY Oce-USA, Inc. 047933 Oce Model 2400 with
0000 Xxxxx Xxxxxxxxxx Xxx. (3/14/94) All Spare Parts,
Xxxxxxx, XX 00000 Accessories,
Attachments,
Replacements
-------------------------------------------------------------------------------------------------------------
NY Oce-USA, Inc. 047934 Oce Model 2500 with
0000 Xxxxx Xxxxxxxxxx Xxx. (3/14/94) All Spare Parts,
Xxxxxxx, XX 00000 Accessories,
Attachments,
Replacements
-------------------------------------------------------------------------------------------------------------
NY Primetec Leasing, Inc. 246493 SPARCStatic and
0 Xxx Xxxx Xxxxxx (11/25/92) Related Accessories
Xxxxxxxxxx, XX 00000
Sanwa Business Credit Corp. 256346
One South Xxxxxx Drive (12/09/93)
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
NY Shawmut Bank, National Association 177404 Machine Tools,
000 Xxxx Xxxxxx (8/30/95) Production Equipment
Xxxxxxxx, XX 00000
(Lessor)
Meridian Trust Company, as Security Trustee
X.X. Xxx 00000
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
PA GE Capital Computer Leasing Corporation 24420563 Com 5/100XL, Com
0000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000 (6/26/95) 148188001
Xxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------
PA GE Capital Computer Leasing Corporation 24921779 Various Computer
0000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000 (11/29/95) Equipment
Xxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
PA GE Capital Computer Leasing Corporation 26441646 Various Computer
0000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000 (3/10/97) Equipment, Computer
Xxxxxxxx, XX 00000 Peripherals
(Lessor)
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
PA General Electric Capital Corporation 20841296 Universal Turning
0000 Xxx Xxxxxx Centers, Chucking
Xxxxx Xxxx, XX 00000 Centers
-------------------------------------------------------------------------------------------------------------
PA General Electric Capital Corporation 21431745 Various Computer
00-0 Xxx Xxxxxxxxx Xxxx (12/07/92) Equipment, Computer
Xxxxxxx, XX 00000 Peripherals and
(Lessor) Computer Software
-------------------------------------------------------------------------------------------------------------
PA Master Lease Div of Tokai Financial 21131620 PBX Phone System
Services, Inc. (8/26/92) Equipment/Lease
0000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
PA Meridian Leasing Inc. 20840828 Computer System
P0 Xxx 00000 (5/27/92)
Xxxxxxx, XX 00000-0000
(Lessor)
-------------------------------------------------------------------------------------------------------------
PA Meridian Leasing Inc. 20840953 Xxxxxxxxx Xxxxxx
X0 Xxx 00000 (5/27/92)
Xxxxxxx, XX 00000-0000
(Lessor)
-------------------------------------------------------------------------------------------------------------
PA Meridian Leasing Inc. 22470322 Telemetry System
P0 Xxx 00000 (10/08/93) Xxxxxx
Xxxxxxx, XX 00000-0000
(Lessor)
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 20860541 LaserJet Printers
000 X. Xxxxxxxx Xxxxxxxx (6/02/92)
Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 21091553 Stand Alone Plain
000 X. Xxxxxxxx Xxxxxxxx (8/14/92) Paper Fax Machine
Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 22760816 Various Computer
000 X. Xxxxxxxx Xxxxxxxx (1/14/94) Equipment, Computer
Xxxxxx, XX 00000 Peripherals and
Computer Software
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 22851575 Stencil Printer,
000 X. Xxxxxxxx Xxxxxxxx Vacuum Fixture,
Xxxxxx, XX 00000 Digital Dual Arm Pick
Place Dispense
System, Top Batch
Reflow Oven
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 22971496 On-line
000 X. Xxxxxxxx Xxxxxxxx (3/30/94) Uninterruptable Power
Xxxxxx, XX 00000 System
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 23261012 Computer Equipment
000 X. Xxxxxxxx Xxxxxxxx (6/27/94)
Xxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 23420772 Various Computer
000 X. Xxxxxxxx Xxxxxxxx (8/15/94) Equipment and
Xxxxxx, XX 00000 Computer Peripherals
-------------------------------------------------------------------------------------------------------------
PA United Financial Funding 21500639 Various Computer
000 X. Xxxxxxxx Xxxxxxxx (12/29/92) Equipment, Computer
Xxxxxx, XX 00000 Peripherals and
Computer Software
-------------------------------------------------------------------------------------------------------------
PA United Financial Corporation 22300930 Various Computer
000 X. Xxxxxxxx Xxxxxxxx (8/13/93) Equipment, Computer
Xxxxxx, XX 00000 Peripherals and
Computer Software
Xxxxxx Financial Corp.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
(Assignee)
-------------------------------------------------------------------------------------------------------------
PA Vision Financial Group, Inc. 24941526 Apple Powerbook with
0000 Xxxxxxx Xxxxxx (12/04/95) Powerpoint, Universal
Xxxxxxxxxx, XX 00000 Notebook Case,
(Lessor) Hardware Installation
-------------------------------------------------------------------------------------------------------------
Suffolk American Classic Spoec Corp 18638 Freezer
Co., NY 0000X Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Schedule 7.4
to the Credit Agreement
EXISTING GUARANTEE OBLIGATIONS
1. Letters of Credit - see attached.
2. Surety Bonds - see attached.
LETTERS OF CREDIT
AMOUNT EXPIRATION
DIVISION BANK PROGRAM BENEFIT OF OUTSTANDING DATE
-------- ---- ------- ---------- ----------- ----------
December 31, 1996
Microcom None
Wideband None
Display Systems None
Xxxxx Xxxx None
Xxxxx East None
Randtron None
Advanced Recorders None
Camden ABN AMRO 1-Renbass NZ New Zealand Ministry of Defense 552,688 1/8/98
Conic Bank of America Katron 59,500 * 8/15/97
Katron 158,034 * 10/15/97
DPA 37,833 6/10/97
KTA 22,990 5/20/97
DPA 22,223 * 6/30/98
Katron 75,305 * 8/1/97
Inisel 27,475 * 7/30/97
Hycor Canadian Imperial Bank of 1264/S ROK Defense Procurement Republic of 17,796 * 12/31/97
Commerce Korea
ARN AMRO 1272/Turkey Howaldtswerft Deutsche Werft, AG 64,005 * 12/31/97
ABN AMRO 1272/Turkey Xxxxx & Xxxx XX 246,645 * 7/31/98
Bayerische Landesbank 1258/Ecuador Xxxxxx del Pacifico 5O0,000 * 10/31/97
Telemetry & Chase Manhattan Bank MOCR#2 PT Industri Pesawat Terbang 40,678 * 1/28/98
Instrumentation Nusantara
Chase Manhattan Bank Komstat X.X.X.X.
Imperial Bank M10724 JHT Electronics 2,000 * 11/30/98
43,450 3/31/97
---------
TOTAL 1,827,172
=========
------------------------
* Letter of credit agrees to listing provided by Lockheed Xxxxxx legal.
AMOUNT EXPIRATION
DIVISION BANK PROGRAM BENEFIT OF OUTSTANDING DATE
-------- ---- ------- ---------- ----------- ----------
March 31, 1997
Microcom None
Wideband None
Display Systems None
Xxxxx Xxxx State Bank of India Filters 5,640 2/18/97
Xxxxx East None
Randtron None
Advanced Recorders None
Camden ABN AMRO I-Renbass NZ New Zealand Ministry of Defense 921,148 1/8/98
Conic Bank of America Katron 40,000
Daeyoung 10,000
KTA 75,000
Katron 95,000
Hycor TBD 1272/Turkey Howaldtswerft Deutsche Werft, AG 48,499 Dec 1991
TBD 1277/Taiwan Defense Procurement, Taipei 292,000 April 1998
TBD F124/Germany German Gov't/Shipyard 300,000 1999
Saudi European Shipyard 600,000 1999
Telemetry & XXX XXXX #0 XX Xxxxxxxx Xxxxxxx Xxxxxxx
Instrumentation TBD Nusantra 50,000
Rooivalk Denel Aviation 220,000
---------
TOTAL 2,657,487
=========
Additional letters of credit as reported by Lockheed Xxxxxx legal:
AMOUNT EXPIRATION
DIVISION BANK OUTSTANDING DATE
-------- ---- ----------- ----------
Conic Bank of America 5,343 6/15/97
Conic Bank of America 27,155 4/30/97
Conic Bank of America 181,169 4/30/97
Telemetry & Instrum. Bank of America 29,054 11/28/97
Telemetry & Instrum. Chase Manhattan 162,712 3/31/97
Telemetry & Instrum. Bank of America 18,092 3/1/98
-------
TOTAL 423,525
=======
SURETY BONDS
Principal Bond No. Description Obligee Eff/Exp Bond Amount
--------- -------- ----------- ------- ------- -----------
Conic Corporation 5234628 Seller State of CA 1/6/96-97 $10,000
Randtron Systems 960711003 Customs U.S. Customs 9/16/96 $100,000
Xxxxx Microwave Corp. 960711005 Customs U.S. Customs 9/16/96 $100,000
Lockheed Xxxxxx Hycor 960711006 Customs U.S. Customs 9/16/96 $100,000
Conic Corporation 960711007 Customs U.S. Customs 9/16/96 $100,000
LM Communications 5857244 Turnpike Toll PA Turnpike Commission 4/18/96-97 $3,000
Schedule 7.9(c)
to the Credit Agreement
OFFICERS
Division Amount Explanation
-------- ------ -----------
Display Systems $35,409 23 Employee loans
Conic $10,000 1 Employee loan
Xxxxx East $14,030 28 Employee loans
Schedule 7.9(g)
to the Credit Agreement
EXISTING INVESTMENTS
Division Amount Explanation
-------- ------ -----------
Randtron $650 LM Securities and LM Tactical
Systems
Hycor $2,600 Hycor International; LM Tactical
Systems
Advanced Recorders $288,590 Medical Education Technologies,
Inc.
Xxxxx Xxxx $1,060 Dynamics of America
Xxxxx East -------- Dynamics of America
Attachment I
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
COMBINED FINANCIAL STATEMENTS
As of December 31, 1996 and 1995 and
for the three years ended
December 31, 1996, 1995 and 1994
[LETTERHEAD OF COOPERS & XXXXXXX]
REPORT OF INDEPENDENT AUDITORS
To the Board of Directors of
Lockheed Xxxxxx Corporation:
We have audited the accompanying combined balance sheet of the Lockheed
Xxxxxx Predecessor Businesses, as defined in Note 1 to the financial statements,
(the "Businesses") as of December 31, 1996 and the related combined statements
of operations and changes in invested equity and cash flows for the year then
ended. These financial statements are the responsibility of the Businesses,
management. Our responsibility is to express an opinion on these financial
statements based on our audit. We did not audit the financial statements of the
Communications Systems Division, which statements represent total assets and
sales constituting 35 percent and 30 percent of the related combined totals.
These statements were audited by other auditors whose report has been furnished
to us, and our opinion, insofar as it relates to the amounts included for the
Communication Systems Division, is based solely on the report of the other
auditors.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a tax basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit and the report of other auditors provide a reasonable
basis for our opinion.
In our opinion, based on our audit and the report of the other auditors,
the financial statements referred to above present fairly, in all material
respects, the combined financial position of the Lockheed Xxxxxx Predecessor
Businesses as of December 31, 1996 and their combined results of operations and
cash flows for the year then ended, in conformity with generally accepted
accounting principles.
/s/ Coopers & Xxxxxxx L.L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
March 20, 1997
1
[LETTERHEAD OF ERNST & YOUNG LLP]
REPORT OF INDEPENDENT AUDITORS
Board of Directors
Lockheed Xxxxxx Corporation
We have audited the combined balance sheets of Lockheed Xxxxxx Communications
Systems Division, as defined in Note 1 to the financial statements, as of
December 31, 1996 and 1995, and the related combined statements of operations
and changes in invested equity, and cash flows for each of the three years in
the period ended December 31, 1996. These financial statements are the
responsibility of the Division's and Lockheed Xxxxxx Corporation's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a tax basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined financial position of Lockheed
Xxxxxx Communications Systems Division at December 31, 1996 (not presented
separately herein) and 1995, and the combined results of its operations and its
cash flows for the year ended December 31, 1996 (not presented separately
herein), and the results of its operations and its cash flows for each of the
two years in the period ended December 31, 1995, in conformity with generally
accepted accounting principles.
/s/ Ernst & Young LLP
March 7, 1997
2
Ernst & Young LLP is a member of Ernst & Young International Ltd.
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
COMBINED BALANCE SHEETS
(in thousands)
December 31,
-------------------
1996 1995
-------- --------
ASSETS
Current assets:
Contracts in process $185,320 $ 42,457
Other current assets 16,414 3,100
-------- --------
Total current assets 201,734 45,557
-------- --------
Property, plant and equipment 116,566 31,657
Less, accumulated depreciation and
amortization 24,983 15,018
-------- --------
91,683 16,539
-------- --------
Intangibles, primarily cost in excess of net assets
acquired, net of amortization 282,674 157,560
Other assets 17,307 8,753
-------- --------
$593,298 $228,509
======== ========
LIABILITIES AND INVESTED EQUITY
Current liabilities:
Accounts payable, trade $ 24,153 $ 9,583
Accrued employment costs 27,313 6,534
Customer advances and amounts in excess of
costs incurred 14,299 1,363
Other current liabilities 27,113 6,983
-------- --------
Total current Liabilities 102,888 24,463
-------- --------
Other liabilities 18,801 9,383
Commitments and contingencies (Note 8) 473,609 154,683
-------- --------
Invested equity $593,298 $228,509
======== ========
See notes to combined financial statements.
3
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
COMBINED STATEMENTS OF OPERATIONS AND CHANGES IN INVESTED EQUITY
(In thousands)
For the years ended December 31,
---------------------------------------
1996 1995 1994
---- ---- ----
Sales $543,081 $186,781 $218,845
Cost of sales 499,380 162,132 210,466
-------- -------- --------
Operating income 43,681 4,549 8,379
Allocated interest expense 24,197 4,475 5,450
-------- -------- --------
Earnings before income taxes 19,494 174 2,929
Income tax expense 7,798 1,186 2,293
-------- -------- --------
Net earnings (loss) 11,696 (1,012) 636
Invested equity - beginning of year 194,883 199,505 218,943
Advances from (repayments to)
Lockheed Xxxxxx 267,250 (3,831) (18,073)
-------- -------- --------
Invested equity - end of year $473,609 $194,663 $199,506
======== ======== ========
See notes to combined financial statements.
4
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
COMBINED STATEMENTS OF CASH FLOWS
(In thousands)
For the years ended December 31,
---------------------------------------
1996 1995 1994
---- ---- ----
Operating activities:
Net income $ 11,696 ($1,012) $ 636
Depreciation and amortization 25,039 11,578 11,487
Loss (gain) an disposition of property, plants
and equipment 265 25 (1,078)
Changes in operating assets and liabilities
Contracts in process 26,103 (3,257) 14,002
Other current assets 489 788 1,502
Other assets (5,248) 1,245 2,044
Accounts payable 3,198 (643) (3,099)
Accrued employment costs 2,282 (611) (528)
Customer advances and amounts in excess
of costs incurred (11,586) (2,041) 917
Other current liabilities 4,086 4,004 (3,304)
Other liabilities (25,327) (699) (751)
--------- ------- -------
Net cash from operating activities 30,999 9,383 21,808
--------- ------- -------
Investing activities:
Acquisition of business (287,803) - -
Capital expenditures (13,528) (5,532) (3,735)
Disposition of property, plant and equipment 3,082 - -
--------- ------- -------
Net cash used in investing activities (298,249) (5,532) (3,735)
--------- ------- -------
Financial activities:
Advances from (repayments to) Lockheed Xxxxxx 267,250 (3,831) (18,073)
--------- ------- -------
Net change in cash - - -
========= ======= =======
See notes to combined financial statements.
5
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS
December 31, 1996
(Dollars in thousands)
1. Background and Description of Businesses
On January 31, 1997, Lockheed Xxxxxx Corporation ("Lockheed Xxxxxx"),
Xxxxxx Brothers Holdings Inc. ("Xxxxxx"), Xxxxx X. Xxxxx ("Xxxxx") and Xxxxxx X.
XxXxxxx ("XxXxxxx") entered into a Memorandum of Understanding regarding the
transfer of certain businesses of Lockheed Xxxxxx to a newly formed corporation
"Newco" owned by Lockheed Martin, Lehman, Xxxxx and XxXxxxx. The businesses
proposed to be transferred include Lockheed Xxxxxx'x Wideband Systems, Division,
Communications Systems Division and Products Group, comprising eleven autonomous
operations (collectively the "Lockheed Xxxxxx Predecessor Businesses" or the
"Businesses"). Also included in the transaction is the acquisition of a
semiconductor product line of another business and certain leasehold
improvements in New York City.
Effective April 1, 1996, Lockheed Xxxxxx acquired substantially all the
assets and liabilities of the defense businesses of Loral Corporation (Loral),
including the Wideband Systems Division and the Products Group. The acquisition
of the Wideband Systems Division and Products Group businesses (the "Acquired
Businesses") has been accounted for as a purchase by Lockheed Xxxxxx
Communications Systems Division ("Division"). The acquisition has been reflected
in these financial statements based on the purchase price allocated to those
acquired businesses by Lockheed Xxxxxx. As such, the accompanying combined
financial statements reflect the results of operations of the Division and the
acquired businesses from the effective date of acquisition including the effects
of an allocated portion of cost in excess of net assets acquired resulting from
the acquisition. The assets and liabilities recorded in connection with the
purchase price allocation were $400,993 and $113,190, respectively.
Had the acquisition of Wideband Systems Division and the Products Group
occurred on January 1, 1995, the unaudited pro forma sales and net income for
the years ending December 31, 1996 and 1995 would have been $675,596 and
$14,351, and $691,136 and $4,790, respectively. The pro forma results, which are
based on various assumptions, are not necessarily indicative of what would have
occurred had the acquisition been consummated on January 1, 1995.
The Businesses are suppliers of sophisticated secure communication systems
and specialized communication products including secure, high data rate
communication systems, commercial fixed wireless communication products,
microwave components, avionic displays and recorders and instrument products.
The Company's consumers included the Department of Defense, selected U.S.
government intelligence agencies, major aerospace/defense prime contractors and
commercial customers. The Businesses operate primarily in one industry segment,
electronic components and systems.
Substantially all the Businesses' products are sold to agencies of the
U.S. Government, primarily the Department of Defense, to foreign government
agencies or to prime contractors or subcontractors thereof. All domestic
government contracts and subcontracts of the Businesses are subject to audit and
various cost controls, and include standard provisions for permission for the
convenience of the U.S. Government. Multi-year U.S. Government contracts and
related orders are subject to cancellation if funds for contract performance for
any subsequent year become unavailable. Foreign government contracts generally
include comparable provisions relating to termination for the convenience of the
government.
The decline in the U.S. defense budget since the mid 1980s has resulted in
program delays, cancellations and scope reduction for defense contracts in
general. These events may or may not have an effect on the Businesses' programs;
however, in the event that U.S. Government expenditures for products of the type
manufactured by the Businesses are reduced, and not offset by greater commercial
sales or other new programs or products, or acquisitions, there may be a
reduction in the volume of contracts or subcontracts awarded to the Businesses.
6
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS--(continued)
(Dollars in thousands)
2. Summary of Significant Accounting Policies
Basis of Presentation and Use of Estimates
The accompanying combined financial statements reflect the Businesses'
assets, liabilities and operations included in Lockheed Xxxxxx'x historical
financial statements that will be transferred to Newco. Intercompany accounts
between Lockheed Xxxxxx and the Businesses have been included in invested
equity. Significant inter-business transactions and balances have been
eliminated. The assets and operations of the semiconductor product line and
certain other facilities, which are not material to the combined financial
statements, have been excluded from the combined financial statements.
The preparation of financial statements in conformity with generally
accepted accounting principles requires the Businesses' management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenue and expenses during
the reporting period. The most significant of these estimates and assumptions
relate to contract estimates of sales and costs, allocations from Lockheed
Xxxxxx, recoverability of recorded amounts of fixed assets and cost in excess of
net assets acquired, litigation and environmental obligations. Actual results
could differ from these estimates.
Sales and Earnings
Sales and profits on cost reimbursable contracts are recognized as costs
are incurred. Sales and estimated profits under long-term contracts are
recognized under the percentage of completion method of accounting using the
cost-to-cost method. Amounts representing contract change orders or claims are
included in sales only when they can be reliably estimated and realization is
probable. Sales under short-term production-type contracts are recorded as units
are shipped; profits applicable to such shipments are recorded pro rata, based
upon estimated total profit at completion of the contract. Amounts representing
contract change orders or claims are included in sales only when they can be
reliably estimated and realization is probable. Losses on contracts are
recognized when determined. Revisions in profit estimates are reflected in the
period in which the facts which require the revision become known.
Contracts in Process
Costs accumulated under long-term contracts include direct costs, as well
as manufacturing overhead, and for government contracts, general and
administrative costs, independent research and development costs and bid and
proposal costs. Contracts in process contain ILLEGIBLE relating to contracts and
programs for which the related operating cycles are longer that one year. In
accordance with industry practice, these amounts are included in current assets.
Property, Plant and Equipment
Property, plant and equipment are stated at cost. Depreciation is provided
primarily using an accelerated method over the estimated useful lives (5 to 20
years) of the related assets. Leasehold improvements are amortized over the
shorter of the lease term or the estimated useful life of the improvements.
Intangibles
Intangibles, primarily the excess of the cost of purchased businesses over
the fair value of the net assets acquired, is being amortized using a
straight-line method primarily over a 40-year period. Other intangibles are
7
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS--(continued)
(Dollars in thousands)
amortized over their estimated useful lives which range from 11-15 years.
Amortization expense was $10,115, $6,086 and $6,086 for 1996, 1995, and 1994,
respectively. Accumulated amortization was $26,524 and $16,738 at December 31,
1996 and 1995, respectively.
Intangibles include costs allocated to the Businesses relating to the
Request for Funding Authorization ("RFA"), consisting of over 20 restructuring
projects to reduce operating costs, initiated by General Electric ("GE")
Aerospace in 1990 and to the REC Advance Agreement ("RAA"), a restructuring plan
initiated after Lockheed Xxxxxx'x acquisition of GE Aerospace. The RAA was
initiated to close two regional electronic manufacturing centers. Restructure
costs are reimbursable from the U.S. Government, if savings can be demonstrated
to exceed costs. The total cost of restructuring under the RFA and the RAA
represented approximately 15% of the estimated savings to the U.S. Government
and, therefore, a deferred asset has been recorded by Lockheed Xxxxxx. The
deferred asset is being allocated to all the former GE Aerospace sites including
the Communications Systems Division, on a basis that includes manufacturing
labor, overhead, and direct material less non-hardware subcontracts. As of
December 31, 1996 and 1995, approximately $4,400 and $7,500, respectively of
unamortized RFA and RAA costs were recorded on the Businesses' combined balance
sheet in other current assets and other assets.
The carrying values of intangible assets are reviewed if the facts and
circumstances indicate potential impairment of their carrying value. If this
review indicates that intangible assets are not recoverable, as determined based
on the undiscounted cash flows of the entity required over the remaining
amortization period, the Division's carrying values related to the intangible
assets are reduced by the estimated shortfall of cash flows.
Research and Development and Similar Costs
Research and development costs sponsored by the Businesses include
research and development and bid and proposal effort related to government
products and services. These costs are generally are allocated among all
contracts and programs in progress under U.S. Government contractual
arrangements. Customer-sponsored research and development costs incurred
pursuant to contracts are accounted for as contract costs.
Financial Instruments
At December 31, 1996, the carrying value of the Businesses' financial
instrument, such as receivables, accounts payable and accrued liabilities,
approximate fair value, based on the short-term maturities of these instruments.
New Accounting Pronouncements
Effective January 1, 1996, the Businesses adopted Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and Long-Lived Assets to Be Disposed Of" ("SFAS 121"). SFAS 121
establishes the accounting standards for the impairment of long-lived assets,
certain intangible assets and cost in excess of net assets required to be held
and used for long-lived assets and certain intangible assets to be disposed of.
The impact of adopting SFAS 121 was not material.
Effective January 1, 1994, the Businesses adopted Statement of Financial
Accounting Standards No. 112, "Employers' Accounting for Postretirement
Benefits" ("SFAS 112"). SFAS 112 requires that the cost of benefits provided to
employees after employment but before retirement be recognized on an accrual
basis. The adoption of SFAS 112 did not have a material impact on the combined
results of operations of the Businesses.
8
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS--(continued)
(Dollars in thousands)
3. Transactions with Lockheed Xxxxxx
The Business rely on Lockheed Xxxxxx for certain services, including
treasury, cash management, employee benefits, taxes, risk management, internal
audit, financial reporting, contract administration and general corporate
services. Although certain assets, liabilities and expenses related to these
services have been allocated to Businesses, the combined financial position,
results of operations and cash flows presented in the accompanying combined
financial statements would not be the same as would have occurred had the
Businesses been independent entities. The following describes the related party
transactions.
Sales of Products
The Businesses sell products to Lockheed Xxxxxx and its affiliates, not
sales for which were $70,658, $25,874, and $9,983 in 1996, 1995 and 1994,
respectively, included in Contracts in Process are receivables from Lockheed
Xxxxxx and its affiliates of $10,924 and $30 at December 31, 1996 and 1995,
respectively.
Allocation of Corporate Expenses
The amount of allocated corporate expenses reflected in these combined
financial statements has been estimated primarily on an allocation methodology
prescribed by government regulations pertaining to government contractors.
Allocated costs to the Businesses were $10,057, $2,964 and $4,141 in 1996, 1995
and 1994, respectively.
Pensions
Certain of the Businesses participate in various Lockheed Xxxxxx-sponsored
pension plans covering certain employees. Eligibility for participation in these
plans varies, and benefits are generally based on members' compensation and
years of service. Lockheed Xxxxxx'x funding policy is generally to contribute in
accordance with cost accounting standards that affect government contractors,
subject to the Internal Revenue code and regulations. Since the aforementioned
pension arrangements are part of certain Lockheed Xxxxxx defined benefit plans,
no separate actuarial data is available for the portion allocable to the
Businesses. Therefore, no liability or asset is reflected in the accompanying
combined financial statements. The Businesses have been allocated pension costs
based upon participant employee headcount. Net pension expense included in the
accompanying financial statements was $7,027, $4,134, and $3,675 in 1996, 1995
and 1994, respectively.
Postretirement Health Care and Life Insurance Benefits
In addition to participating in Lockheed Xxxxxx-sponsored pension plans,
certain of the Businesses provide varying levels of health care and life
insurance benefits for retired employees and dependents. Participants are
eligible for these benefits when they retire from service and meet the pension
plan eligibility requirements. These benefits are funded primarily on a
pay-as-you-go basis with the retiree generally paying a portion of the cost
through contributions, deductibles and [ILLEGIBLE] provisions.
Since the aforementioned postretirement benefits are part of certain
Lockheed Xxxxxx postretirement arrangements, no separate actuarial data is
available for the portion allocable to the Businesses. Accordingly, no liability
is reflected in the accompanying financial statements. The Businesses have been
allocated postretirement benefits cost based on participant employee headcount.
Postretirement benefits costs included in the accompanying financial statements
was $2,787, $2,124 and $1,694 in 1996, 1995 and 1994, respectively.
9
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS--(continued)
(Dollars in thousands)
Employee Savings Plans
Under the various employee savings plans sponsored by Lockheed Xxxxxx, the
Businesses match the contributions of participating employees up to a designated
level. The extent of the match, vesting terms and the form of the matching
contributions vary among the plans. Under the plans, the matching contributions,
in cash, common stock or both, for 1996, 1995 and 1994 were $3,940, $1,478, and
$1,842, respectively.
Interest Expenses
Interest expense has been allocated to the Businesses by applying Lockheed
Xxxxxx'x weighted average consolidated interest rate to the portion of the
beginning of the period invested equity account deemed to be financed by
consolidated debt, which has been determined based on Lockheed Xxxxxx'x debt to
equity ratio on such date, except that the acquisition of the defense business
of Loral Corporation ("Loral") has been assumed to be fully financed by debt.
Interest expense was calculated using the following balances and interest
rates:
For the years ended December 31,
-----------------------------------
1996 1995 1994
-------- -------- -----------
Invested Equity:
Communications Systems Division $194,663 $199,506 $ 216,943
Wideband Systems Division and
Products Group $287,803
Interest Rate 7.20% 7.40% 7.23%
Income Taxes
The Businesses are included in the consolidated Federal income tax return
and certain combined and separate state and local income tax returns of Lockheed
Xxxxxx. However, for purposes of these financial statements, the provision for
income taxes is computed as if the Businesses were a separate taxpayer;
accordingly, the provision for income taxes is based upon reported combined
income before income taxes. Income taxes, current and deferred, are considered
to have been paid or charged to Lockheed Xxxxxx and are recognized through the
invested equity account with Lockheed Xxxxxx. The principal components of the
deferred taxes are contract accounting methods, property, plant and equipment,
goodwill amortization and timing of accruals.
Statement of Cash Flows
The Businesses participate in Lockheed Xxxxxx'x cash management system,
under which all cash is received and payments are made by Lockheed Xxxxxx. All
transactions between the Businesses and Lockheed Xxxxxx have been accounted for
as settled in cash at the time such transactions were recorded by the
Businesses.
10
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS--(continued)
(Dollars in thousands)
4. Contracts in Process
Xxxxxxxx and accumulated costs and profits on contracts, principally with
the U.S. Government, comprise the following:
December 31,
------------------------------
1996 1995
---- ----
Billed contract receivables $ 40,299 $10,237
Other billed receivables, principally
commercial 28,401 -
Unbilled contract receivables 91,053 23,643
Inventoried costs 61,380 10,830
-------- -------
221,133 44,710
Less, unliquidated progress payments (35,813) (2,253)
-------- -------
$185,320 $42,457
======== =======
The U.S. Government has title to, or a security interest in, inventories
to which program payments are applied. Unbilled contract receivables represent
accumulated costs and profits earned but not yet billed to customers at
year-end. The Businesses believe that substantially all such amounts will be
billed and collected within one year.
The following data has been used in the determination of cost of sales:
1996 1995 1994
---- ---- ----
General and administrative costs included in inventoried costs $14,700 $1,156 $ 193
General and administrative costs charged to inventory $25,400 $3,967 $3,640
Independent research and development and bid and proposal costs
charged to inventory $35,300 $2,558 $2,134
5. Property, Plant and Equipment
December 31,
------------------------------
1996 1995
---- ----
Land $ 9,200
Buildings and Improvements 27,000
Machinery, equipment, furniture and fixtures 73,137 $29,216
Leasehold improvements 7,229 2,441
-------- -------
$116,566 $31,657
======== =======
Depreciation and amortization expense in 1996, 1995 and 1994 was $14,824,
$5,492, and $5,381, respectively.
11
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS-(continued)
(Dollars in thousands)
6. Income Taxes
The provision for income taxes was calculated by applying statutory tax
rates to the reported pretax income after considering items that do not enter
into the determination of taxable income and tax credits reflected in the
consolidated provision of Lockheed Xxxxxx, which are related to the Businesses.
For the years ended December 31, 1996, 1995 and 1994, it is estimated that the
provision for deferred taxes represent ($2,143), $3,994 and $1,252,
respectively. Substantially all the income of the Businesses are from domestic
operations.
The effective income tax rate differs from the statutory Federal income
tax rate for the following reasons:
1996 1995 1994
---- ---- ----
Statutory Federal income tax rate 35% 34% 34%
Amortization of cost in excess of net assets acquired 2 529 31
Research and development and other tax credits (2)
State and local income taxes, net of Federal
income tax benefits and state and local income tax credits 6 101 12
Foreign sales corporation tax benefit (1)
Other, net 17 1
--- --- ---
Effective income tax rates 40% 681% 78%
=== === ===
The difference between the statutory Federal income tax rate and the
effective income tax rate in 1995 and 1994 is primarily due to the amortization
of cost in excess of net assets acquired which is not deductible for income tax
purposes.
7. Sales to Principal Customers
The Businesses operate primarily in one industry segment, electronic
components and systems. Sales to principal customers are as follows:
December 31,
------------------------------
1996 1995 1994
-------- -------- --------
U.S. Government Agencies $425,033 $161,617 $216,034
Foreign (principally foreign government) 33,475 4,945 1,623
Other (principally U.S. Government agencies) 84,573 219 1,138
-------- -------- --------
$543,081 $166,781 $218,845
======== ======== ========
8. Commitments and Contingencies
The Businesses lease certain facilities and equipment under agreements
expiring at various dates through 2011. At December 31, 1996, future minimum
payments for noncancellable operating leases with initial or remaining terms in
excess of one year are $11,400 for each of the years 1992 through 2001, and
$12,300 in total thereafter.
Leases covering major items of real estate and equipment contain renewal
and or purchase options which may be exercised by the Businesses. Rent expense,
net of sublease income from other Lockheed Xxxxxx entities, was $8,495, $4,772,
and $5,597 in 1996, 1995 and 1994, respectively.
12
LOCKHEED XXXXXX PREDECESSOR BUSINESSES
NOTES TO COMBINED FINANCIAL STATEMENTS-(continued)
(Dollars in thousands)
Management is continually assessing the Businesses' obligations with
respect to applicable environmental protection laws. While it is difficult to
determine the timing and ultimate cost to be incurred by the Businesses in order
to comply with these laws, based upon available internal and external
assessments, with respect to those environmental loss contingencies of which
management of the Businesses is aware, the Businesses believe that even without
considering potential insurance recoveries, if any, there are no environmental
loss contingencies that, individually or in the aggregate, would be material to
the Businesses' results of operations. The Businesses accrue for these
contingencies when it is probable that a liability has been incurred and the
amount of the loss can be reasonably estimated.
The Businesses are engaged in providing products and services under
contracts with the U.S. Government and to a lesser degree, under foreign
government contracts, some of which are funded by the U.S. Government. All such
contracts are subject to extensive legal and regulatory requirements, and, from
time to time, agencies of the U.S. Government investigate whether such contracts
were and are being conducted in accordance with these requirements. Under
government procurement regulations, an indictment of the Businesses by a federal
grand jury could result in the Businesses being suspended for a period of time
from eligibility for awards of new government contracts. A conviction could
result in debarment from contracting with the federal government for a specified
term.
The Businesses are periodically subject to litigation, claims or
assessments and various contingent liabilities (including environmental matters)
incidental to its business. With respect to those investigative actions, items
of litigation, claims or assessments of which they are aware, management of the
Businesses is of the opinion that the probability is remote that, after taking
into account certain provisions that have been made with respect to these
matters, the ultimate resolution of any such investigative actions, terms of
litigation, claims or assessments will have a material adverse effect on the
financial position of results of the Businesses.
13
Attachment II
L-3 Communications Holdings, Inc. Acquired-Entities
Combined Statement of Net Tangible Assets
December 31, 1996
With Report of Independent Auditors
L-3 Communications Holdings, Inc. Acquired-Entities
Combined Statement of Net Tangible Assets
December 31, 1996
Contents
Report of Independent Auditors.............................................1
Combined Statement of Net Tangible Assets..................................2
Notes to Combined Statement of Net Tangible Assets......................3-12
[LETTERHEAD OF ERNST & YOUNG LLP]
Report of Independent Auditors
Board of Directors
Lockheed Xxxxxx Corporation
We have audited the accompanying combined statement of net tangible assets of
the L-3 Communications Holdings, Inc. Acquired-Entities (as defined in Note 1)
as of December 31, 1996. This combined statement of net tangible assets is the
responsibility of Lockheed Xxxxxx Corporation's and the L-3 Communications
Holdings, Inc. Acquired-Entities' management. Our responsibility is to express
an opinion on the combined statement of net tangible assets based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the combined statement of net tangible assets is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the combined statement of net tangible
assets. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
combined statement of net tangible assets presentation. We believe that our
audit provides a reasonable basis for our opinion.
As described in Note 1, the accompanying combined statement of net tangible
assets as of December 31, 1996 has been prepared for the purpose of complying
with, and on the basis of, accounting practices specified in the Transaction
Agreement (as defined in Note 1). The combined statement of net tangible assets
is not intended to be a presentation in conformity with generally accepted
accounting principles, nor is the statement intended to be a compete
presentation of the L-3 Communications Holdings, Inc. Acquired-Entities'
combined assets, liabilities and net tangible assets.
In our opinion, the combined statement of net tangible assets referred to above
presents fairly, in all material respects, the net tangible assets of the L-3
Communications Holdings, Inc. Acquired-Entities at December 31, 1996, on the
basis of accounting described in Notes 1 and 2. The accompanying combined
statement of net tangible assets has been prepared assuming that the L-3
Communications Holdings, Inc. Acquired-Entities will continue as a going
concern.
This report is intended solely for the information and use of the parties
associated with the Transaction Agreement and should not be used for any other
purpose.
/s/ Ernst & Young LLP
February 28, 1997, except for Note 1,
as to which the date is March 31, 1997
1
Ernst & Young LLP is a member of Ernst & Young International, Ltd.
L-3 Communications Holdings, Inc. Acquired-Entities
Combined Statement of Net Tangible Assets
December 31,
1996
--------------
(In thousands)
Assets
Receivables, net $ 69,884
Intercompany accounts receivables, net 10,724
Contracts in process 131,038
Property, plant and equipment, net 95,583
FSI Semiconductor Business net tangible assets 4,800
LMEAP assets 900
Other assets 16,568
--------
329,497
Liabilities
Accounts payable 34,194
Salaries, benefits and payroll taxes 23,113
Other liabilities 35,272
--------
Net tangible assets before Corporate pushdowns 236,918
Corporate pushdowns, net 600
--------
Net tangible assets $237,518
========
See accompanying notes.
2
L-3 Communications Holdings, Inc. Acquired-Entities
Combined Statement of Net Tangible Assets
December 31, 1996
1. Description of Business and Basis of Presentation
Description of Business
On January 31, 1997, Lockheed Xxxxxx Corporation ("Lockheed Xxxxxx"), Xxxxxx
Brothers Holdings Inc. ("Xxxxxx Holdings"), Xxxxx X. Xxxxx and Xxxxx X. XxXxxxx
("Individual Purchasers") entered into a Memorandum of Understanding regarding
the transfer of the Products Group, Tactical Communication Systems ("Wideband
Systems") and Communications Systems ("Camden") businesses of Lockheed Xxxxxx to
a newly-formed corporation, L-3 Communications Holdings, Inc. ("L-3
Communications"), to be jointly owned by Lockheed Martin, Lehman Holdings and
its affiliates, and the Individual Purchasers.
The L-3 Communications Acquired-Entities are engaged in the design, engineering,
manufacturing, integration, operation and support of a broad array of products
and services for the electronics, command and control and communications
industries. The L-3 Communications Acquired-Entities serve customers in both
domestic and international defense, civilian, and commercial markets.
The accompanying combined statement of net tangible assets of the L-3
Communications Acquired-Entities include the accounts of the following business
units, which are combined for financial reporting purposes:
o Wideband Systems headquartered in Salt Lake City, Utah,
o Communications Systems headquartered in Camden, New Jersey,
o Display Systems headquartered in Atlanta, Georgia,
o Advanced Recorders headquartered in Sarasota, Florida,
o Conic headquartered in San Diego, California,
o Telemetry & Instrumentation headquartered in San Diego, California,
o Microcom headquartered in Warminster, Pennsylvania,
o Randtron headquartered in Menlo Park, California,
o Microwave--Xxxxx East headquartered in Hauppauge, New York,
o Microwave--Xxxxx Xxxx headquartered in Rancho Cordova, California,
o Hycor headquartered in Woburn, Massachusetts,
o FSI Semiconductor Business headquartered in Lowell, Massachusetts, and
o Airport Explosive Detection Business ("EDS") headquartered in Pinellas,
Florida.
3
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
1. Description of Business and Basis of Presentation (continued)
Basis of Presentation
The accompanying combined statement of net tangible assets as of December 31,
1996 has been prepared for the purpose of complying with, and on the basis of
accounting practices specified in, the Transaction Agreement and related
attachments by and among L-3 Communications, Lockheed Martin, Lehman Brothers
Capital Partners III, L.P. ("Xxxxxx"), and the Individual Purchasers dated March
28, 1997 ("Transaction Agreement"). This combined statement is not intended to
be a presentation in conformity with generally accepted accounting principles,
nor is this combined statement intended to be a complete presentation of the L-3
Communications Acquired-Entities' combined assets, liabilities and net tangible
assets.
The following intangible amounts are excluded from the accompanying combined
statement of net tangible assets, (1) goodwill, and (2) intangible assets
related to contracts and programs acquired. All other recorded assets are
considered tangible for purposes of this financial statement.
The accompanying combined statement of net tangible assets has been prepared
after giving effect to the conditions or adjustments specifically referenced in
the Transaction Agreement. Certain items were agreed to by and among Lockheed
Martin, Lehman, the Individual Purchasers and L-3 Communications including, but
not limited to:
The combined statement of net tangible assets specifically excludes the
following assets and liabilities: cash and cash equivalents; accounts or
notes receivable or payable from or to Lockheed Xxxxxx except for
receivables and payables relating to materials sold or services rendered;
all obligations and liabilities of Lockheed Xxxxxx not arising out of the
conduct of the business of the L-3 Communications Acquired-Entities; any
reserve, liability or asset resulting from pension benefits, retirement
benefits or other post-employment benefits; all accrued liabilities or
benefits for current or deferred federal or state income taxes.
All components of equity, including corporate intercompany advances, have
been excluded from the accompanying combined statement of net tangible
assets.
4
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
1. Description of Business and Basis of Presentation (continued)
Basis of Presentation (continued)
Pursuant to the Transaction Agreement, any reserves or liabilities for the
following matters shall not be considered in the combined statement of net
tangible assets:
o Camden's CAS 410 Issue,
o Management Incentive Compensation Plan (NYHQ), and
o Advanced Recorders' Sarasota Asset Step Up Issue.
The following items specifically were assigned net tangible asset
(liability) values in the Transaction Agreement and are included in the
combined statement of net tangible assets before Corporate pushdowns at
the stated amount (in thousands):
FSI (Lowell, MA) Net Tangible Assets $4,800
LMEAP Assets 900
Microcom Earn Out 0
EDS Net Assets 0
EDS M&DS Subcontract Reserve 0
------
$5,700
======
The following net tangible asset increases (decreases) to the historical books
and records of the L-3 Communications Acquired-Entities were specifically agreed
upon and valued in the Transaction Agreement and are included in the combined
statement of net tangible assets before Corporate pushdowns (in thousands):
All L-3 Communications Acquired-Entities' Duplicate Pension/Benefit Liabilities $ 6,000
Display Systems' Alpharetta building 4,000
Conic's LMEAP Reserve Reversal 500
Advanced Recorders' ADC Settlement (300)
Wideband Systems' TSS Options (1,000)
Telemetry & Instrumentation G&A Costs in Inventory (1,000)
Camden's Aegis Power Supply Contract and Option (1,000)
All L-3 Communications Acquired-Entities' Cash/Negative Cash (1,600)
-------
$5,600
=======
5
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
1. Description of Business and Basis of Presentation (continued)
Basis of Presentation (continued)
The following pushdown assets (liabilities) were specifically agreed upon
and valued in the Transaction Agreement and are included in the combined
statement of net tangible assets as Corporate pushdowns, net (in
thousands):
Incurred but not reported Reserve $(4,100)
Environmental Reserve (3,200)
Workers Compensation (1,200)
Deferred Management Incentive Compensation Plan (300)
Vacation Accrual (300)
NY Overlays 1,800
NY Leasehold Improvements 3,500
RFA and RAA 4,400
-------
$ 600
=======
Net tangible asset changes from the historical books and records of the
L-3 Communications Acquired-Entities for the following matters were
specifically prohibited in the Transaction Agreement and therefore the
historical amounts are carried forward:
o All L-3 Communications Acquired-Entities' Building Writedown or Writeup,
o Advanced Recorders' Universal Litigation,
o Advanced Recorders' G&A in Inventory,
o Advanced Recorders' Reversal of Capitalized Certification Costs,
o Advanced Recorders' CPS-100 Audit Labor Mischarging Allegations,
o Advanced Recorders' Instrumentation Recorder Product Line,
o Camden's Unreasonable Indirect Labor Allegations,
o Camden's Old Receivables,
o Camden's DCAA Rate Close-Out Issues,
o Camden's NOAA Contract Defective Pricing Allegations,
o Camden's Reversal of Division Reserve,
o Camden's Truck Depot Severance Reserve,
o Wideband Systems' Fixed Wiereless Loop License Agreement, Deferred Cost,
and Reserve,
o Wideband Systems' Severance, and
o Conic's Xxxxxxxxx Litigation Reserve.
The above items are not intended to completely represent the terms and
conditions of the Transaction Agreement.
6
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
2. Summary of Significant Accounting Policies
Assumption Regarding Going Concern
The accompanying combined statement of net tangible assets has been prepared
assuming that the L-3 Communications Acquired-Entities will continue as a going
concern.
Use of Estimates
The preparation of the combined statement of net tangible assets requires
management to make estimates and assumptions that affect reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at
December 31, 1996. The most significant of these estimates and assumptions
relate to contract estimates of total costs at completion and revenues in the
earnings recognition process, and commitments and contingencies. Actual results
could differ from those estimates.
As discussed in Note 1, the Transaction Agreement establishes the amount
reported for certain assets and liabilities. These amounts have been agreed to
by and among Lockheed Martin, Lehman, the Individual Purchasers and L-3
Communications and are not necessarily management's estimate of their value in
accordance with generally accepted accounting principles.
Revenue Recognition
The following L-3 Communications Acquired-Entities generally record revenues and
anticipated profits under long-term contracts on a percentage of completion
cost-to-cost basis of accounting where revenues and profits are recorded based
on the ration of costs incurred to estimated total costs at completion:
o Wideband Systems,
o Communications Systems,
o Display Systems,
o Microcom, and
o Hycor.
7
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
2. Summary of Significant Accounting Polices (continued)
Revenue Recognition (continued)
The following L-3 Communications Acquired-Entities generally record revenues and
profits on products and services essentially under commercial terms and
conditions as units are shipped or specified tasks are completed; or on a
percentage of completion basis, using units of delivery as to measurement basis
for effort expended:
o Advanced Recorders,
o Conic,
o Telemetry & Instrumentation
o Randtron,
o Microwave-Xxxxx East, end
o Microwave-Xxxxx Xxxx.
For all L-3 Communications Acquired-Entities, revenues under
cost-reimbursement-type contracts are recorded as costs are incurred. Applicable
estimated profits are included in earnings in the proportion that incurred costs
bear to total estimated costs.
Revenues and earnings on contracts are based, in part, on estimates. These
estimates are revised periodically and adjustments to revenues and earnings
resulting from such revisions are recorded on a cumulative basis in the period
of revision. Incentives or penalties and awards applicable to performance on
contracts are considered in estimating revenues and profit rates and are
recorded when there is sufficient information to assess anticipated contract
performance. Amounts representing contract change orders, claims or other items
are included in revenues only when they can be reliably estimated and
realization is probable.
Any anticipated losses on contracts or programs are charged to earnings when
identified. Such losses encompass all costs, including general and
administrative expenses for L-3 Communications Acquired-Entities that include
general and administrative expenses in inventory, allocable to the contracts.
The L-3 Communications Acquired-Entities that expense general and administrative
expenses as incurred exclude such costs in determining anticipated losses.
Revenue arising from change orders or the claims process is not recognized
either as income or as an offset against a potential loss until it can be
reliably estimated and its realization is probable.
8
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
2. Summary of Significant Accounting Polices (continued)
General and Administrative Expenses
The following L-3 Communications Acquired-Entities allocate general and
administrative expenses to contracts in process and therefor are included in
operating costs and expenses at the time of revenue recognition:
o Wideband Systems,
o Communications Systems,
o Display Systems,
o Conic, and
o Randtron.
The following L-3 Communications Acquired-Entities charge general and
administrative expenses to operations as incurred:
o Advanced Recorders,
o Telemetry & Instrumentation
o Microcom,
o Hycor,
o Microwave-Xxxxx East, end
o Microwave-Xxxxx Xxxx.
Lockheed Xxxxxx'x corporate general and administrative costs attributed to the
L-3 Communications Acquired-Entities are charged to the individual entity in
accordance with allocation methodologies determined by Lockheed Xxxxxx and
applied to Lockheed Xxxxxx'x various business units. Such expenses could vary
significantly if the L-3 Communications Acquired-Entities are operating as an
unaffiliated entity.
Research and Development Costs
Customer-sponsored research and development costs are accounted for as direct
costs. Reimbursable company-sponsored research and development costs are
accounted for in accordance with the Acquired-Entities' policy for general and
administrative expenses.
9
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
2. Summary of Significant Accounting Policies (continued)
Contracts in Process
Contracts in process are stated at the lower of cost or estimated net realizable
value, except for those items specifically addressed in the Transaction
Agreement. Costs on contracts in process represent recoverable costs incurred
for production; allocable operating overhead; and, based on entity policy,
research and development and general and administrative expanses, less amounts
attributed to cost of sales. Pursuant to contract provisions, agencies of the
U.S. Government and other customers have title to, or a security interest in,
certain inventories as a result of progress payments and advances. In accordance
with industry practice, contracts in process contain amounts relating to
contracts with long production cycles, a portion of which may not be realized
within one year.
Property, Plant and Equipment
Property, plant and equipment are stated at historical book value. Depreciation
is provided primarily using the straight-line method over the estimated useful
lives of the related assets. Leasehold improvements are amortized over the
shorter of the lease term or the estimated useful life of the improvement.
Certification Costs
As part of the normal course of doing business, the Advanced Recorders entity is
required to incur certification costs prior to the production of new products.
Advanced Recorders' policy is to capitalize these costs and amortize them on a
straight-line basis over a 10 year period. As of December 31, 1996,
approximately $3.4 million of unamortized certification costs are included in
the combined statement of net tangible assets.
Financial Instruments
At December 31, 1996, the carrying value of the L-3 Communications financial
instruments such as receivables, accounts payable and accrued liabilities
approximate fair vale, based on the short-term maturities of these instruments.
10
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
2. Summary of Significant Accounting Policies (continued)
Concentration of Credit Risk
The L-3 Communications Acquired-Entities conduct business with the U.S.
Government and commercial enterprises. Financial instruments which potentially
expose the L-3 Communications Acquired-Entities to concentrations of credit risk
consist primarily of commercial receivables. To minimize this risk, ongoing
credit evaluations of commercial customers' financial condition are performed.
In addition, the L-3 Communications Acquired-Entities maintain allowances for
potential credit losses and such losses, in the aggregate, have not exceeded
management expectations. None of the L-3 Communications Acquired-Entities'
commercial receivables are individually significant.
Intercompany Accounts Receivable, Net
All accounts receivable from and accounts payable to Lockheed Xxxxxx entities
are deemed to be valid and realizable from and payable to the appropriate
Lockheed Xxxxxx entities.
3. Contracts in Process
Contracts in process reflected in the combined statement of net tangible assets
consist of the following as of December 31, 1996 (in thousands):
Work in process $ 169,667
Progress billing receivable 4,631
Less--Advances and progress payments (43,260)
---------
$ 131,038
=========
Work in process includes finished goods and raw materials held in inventory. In
addition, work in process includes unbilled costs incurred plus estimated
earnings that will be billed to the customer upon the completion of certain
milestones. Revenue which has not yet been billed is included in unbilled
receivables, some of which will not be billed within one year.
Under the contractual arrangements by which progress payments are received, the
U.S. Government asserts that it has a security interest in the contracts process
identified by the related contracts.
11
L-3 Communications Holdings, Inc. Acquired-Entities
Notes to Combined Statement of Net Tangible Assets (continued)
4. Property, Plant and Equipment, net
Property, plant and equipment consists of the following as of December 31, 1996
(in thousands):
Land and improvements $ 10,800
Building and improvements 36,666
Machinery, equipment, furniture and fixtures 73,137
--------
120,603
Less--Accumulated depreciation
and amortization (25,020)
--------
$ 95,583
========
5. Income Taxes
The accompanying combined statement of net tangible assets excludes the L-3
Communications Acquired-Entities' assets and liabilities relating to federal and
state income taxes, as discussed in Note 1.
6. Commitments and Contingencies
The L-3 Communications Acquired-Entities are engaged in providing products and
services under contracts with the U.S. Government and, to a lesser degree, under
foreign government contracts, some of which are funded by the U.S. Government.
All such contracts are subject to extensive legal and regulatory requirements,
and, from time to time, agencies of the U.S. Government investigate whether the
L-3 Communications Acquired-Entities were and are being conducted in accordance
with these requirements. Under government regulations, an indictment of an L-3
Communications Acquired-Entity could result in the L3 Communications
Acquired-Entity being suspended for a period of time from eligibility for awards
of new government contracts. A conviction could result in debarment from
contracting with the federal government for a specified term.
The L-3 Communications Acquired-Entities are periodically subject to litigation,
claims or assessments and various contingent liabilities (including
environmental matters) incidental to their business. With respect to those
investigative actions, items of litigation, claims or assessments of which they
are aware, management of the L-3 Communications Acquired-Entities are of the
opinion that, after taking into account certain provisions that have been made
with respect to these matters, pushdowns and matters addressed specifically in
the Transaction Agreement, the probability is remote that the ultimate
resolution of any such investigative actions, items of litigation, claims or
assessments will have a material adverse effect on the combined net tangible
assets of the L-3 Communications Acquired-Entities.
12
Attachment III
ATTACHMENT III
TRANSFER AGREEMENT
This Agreement is made as of the 28th day of March 1997, by and between
Lockheed Xxxxxx Corporation, a Maryland corporation ("Lockheed Xxxxxx"), and L-3
Communications Holdings, Inc., Delaware corporation ("Newco").
W I T N E S S E T H :
WHEREAS, the parties hereto, together with Xxxxxx Brothers Capital
Partners III, L.P., Xxxxx X. Xxxxx and Xxxxxx X. XxXxxxx, have entered into a
Transaction Agreement (the "Transaction Agreement"); and
WHEREAS, in connection with the execution of the Transaction Agreement the
parties hereto wish to enter into this Transfer Agreement to effect certain
transactions referred to in the Transaction Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Defined terms used in this Transfer Agreement
shall have the meanings specified in the Transaction Agreement (including all
Exhibits, Schedules and Attachments thereto).
ARTICLE II
TRANSFER OF ASSETS
Section 2.01. Transfer of Assets. Upon the terms and subject to the
conditions set forth in this Transfer Agreement and the Transaction Agreement,
Newco agrees to receive, acquire and accept from Lockheed Xxxxxx (and from each
Affiliated Transferor) and Lockheed Xxxxxx agrees to transfer, convey, assign
and deliver, or cause to be transferred, conveyed, assigned and delivered, to
Newco effective at 12:01 a.m. (Eastern Standard Time) on the Closing Date, free
and clear of all Liens, other than permitted Liens, the Transferred Assets.
Section 2.02. Assumption of Liabilities. Upon the terms and subject to the
conditions of this Transfer Agreement, Newco agrees,
II-1
effective at 12:01 am. (Eastern Standard Time) on the Closing Date, to assume
the Assumed Liabilities.
Section 2.03. Assignment of Contracts and Rights.
(a) Anything in this Transfer Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any
Transferred Asset (other than with respect to the Owned Real Property) or any
claim or right or any benefit arising thereunder or resulting therefrom if an
attempted assignment thereof, without the consent of a third party thereto,
would constitute a breach or other contravention thereof, be ineffective with
respect to any party thereto or in any way adversely affect the rights of Newco
or Lockheed Xxxxxx (or any Affiliated Transferor) thereunder.
(b) With respect to any Government Contract or any claim, right or
benefit arising thereunder or resulting therefrom, Lockheed Xxxxxx and Newco
will use their best efforts to obtain the written consent of the other parties
to such Government Contract for the assignment or novation thereof to Newco or
written confirmation from such parties reasonably satisfactory in form and
substance to Lockheed Xxxxxx and Newco that such consent is not required. As
soon as practicable following the date hereof, (i) with respect to each Prime
Government Contract to which Lockheed Xxxxxx (or any Affiliated Transferor) is a
party, Lockheed Xxxxxx (or the appropriate Affiliated Transferor) shall either
obtain written confirmation reasonably satisfactory in form and substance to
Lockheed Xxxxxx and Newco that novation of such Prime Government Contract is not
required or submit to the relevant Responsible Contracting Officer a written
request in compliance with the applicable Federal Acquisition Regulation that
the U.S. Government enter into a Government Contract Novation with Lockheed
Xxxxxx and Newco with respect to such Prime Government Contract; and (ii) with
respect to each Government Contract that is not a Prime Government Contract,
Lockheed Xxxxxx (or the appropriate Affiliated Transferor) shall submit to the
parties thereto documentation reasonably satisfactory in form and substance to
Lockheed Xxxxxx and Newco seeking the written waiver or approval of the other
contracting party or parties thereto to the transfer and assignment of all of
Lockheed Xxxxxx (or the applicable Affiliated Transferor) claims, rights,
benefits and obligations thereunder to Newco at the Closing. In this regard,
Lockheed Xxxxxx (or the applicable Affiliated Transferor) shall take all actions
required under the applicable Federal Acquisition Regulation including, without
limitation, the guarantee by Lockheed Xxxxxx of Newco's obligations under any
novated Government Contracts, as may be required by Federal Acquisition
Regulation Section 42.104(d). Except as provided in this immediately preceding
sentence, in no event shall Lockheed Xxxxxx or Newco or any of their respective
Affiliates be obligated to pay any money to the U.S. Government or any other
Person or to offer or grant other financial or other accommodations to the U.S.
Government or any other Person in
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connection with obtaining any novation of a Government Contract or any such
consent or waiver.
(c) With respect to any Contract that is not a Government Contract
or any claim, right or benefit arising thereunder or resulting therefrom,
promptly after the date hereof, to the extent reasonably requested by Newco,
Lockheed Xxxxxx and Newco will use their best efforts to obtain the written
consent of the other parties to any such Contract for the assignment thereof to
Newco, or written confirmation from such parties reasonably satisfactory in form
and substance to Lockheed Xxxxxx and Newco confirming that such consent is not
required.
(d) If such consent, waiver or confirmation is not obtained with
respect to any such Government Contract or other Contract, as among the parties
hereto, Newco will obtain through a subcontracting arrangement or otherwise, and
subject to Applicable Law and the terms of such Government Contract or Contract,
the claims, rights and benefits of Lockheed Xxxxxx (or the applicable Affiliated
Transferor) and, to the extent possible, assume the. obligations under such
Contracts and Government Contracts in accordance with this Transfer Agreement,
and Lockheed Xxxxxx (or the applicable Affiliated Transferor) will enforce at
the request of and for the benefit of Newco, with Newco, to the extent set forth
in the Transaction Agreement, assuming Lockheed Xxxxxx'x (or the applicable
Affiliated Transferor's) obligations, any and all claims, rights and benefits of
Lockheed Xxxxxx (or the applicable Affiliated Transferor) against a third party
thereto arising from any such Government Contract or Contract (including the
right to elect to terminate such Government Contract or Contract in accordance
with the terms thereof upon the request of Newco). Lockheed Xxxxxx (or the
applicable Affiliated Transferor) will promptly pay to Newco when received all
monies received by Lockheed Xxxxxx (or the applicable Affiliated Transferor)
under any Transferred Asset or any claim, right or benefit arising thereunder
not transferred pursuant to this Section 2.03.
Section 2.04. Exchange Consideration; Closing.
(a) The Exchange Consideration shall be as set forth in Section 2.02
of the Transaction Agreement, and the closing of the Transfer of the Transferred
Assets and the assumption of the Assumed Liabilities hereunder shall take place
as set forth in the Transaction Agreement.
(b) At the Closing, Lockheed Xxxxxx and Newco shall enter into an
Exchange Agreement substantially in the form of Attachment A, and Lockheed
Xxxxxx (or the applicable Affiliated Transferor) shall execute, acknowledge (if
appropriate) and deliver to Newco with respect to the Real Property, assignments
of all of Lockheed Xxxxxx'x and the Affiliated Transferors' rights and interests
in the Leased Real Property and deeds with respect to all of Lockheed Xxxxxx'x
and the Affiliated Transferors' rights and interests in the Owned Real Property
in recordable form sufficient
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to convey to Newco all of Lockheed Xxxxxx'x and the Affiliated Transferors'
rights and interests in the Owned Real Property, and bills of sale,
endorsements, consents, assignments and other good and sufficient instruments of
conveyance and assignment as the Purchasers and their respective counsel may
reasonably request (but including, without limitation, affidavits of non-foreign
status as required by Section 1445(b)(2) of the Foreign Investment and Real
Property Tax Act, as amended and such other documents, affidavits and
instruments to facilitate and consummate the transfer of the Owned Real Property
to Newco and Newco's obtaining title insurance of the Owned Real Property to
Newco and Newco's obtaining title insurance as Purchasers may reasonably
request) so as to vest in Newco all of Lockheed Xxxxxx'x (or the applicable
Affiliated Transferor's) right, title and interest in, to and under the
Transferred Assets.
ARTICLE III
EXCLUDED LIABILITIES
Section 3.01. Satisfaction of Excluded Liabilities. Lockheed Xxxxxx agrees, on
behalf of itself and its Affiliates, to pay, discharge and satisfy the Excluded
Liabilities.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.01. Conditions to the Obligations of Each Party. The obligations of
Lockheed Xxxxxx and Newco to consummate the closing of the Transfer Agreement
are as set forth in the Transaction Agreement.
ARTICLE V
SURVIVAL; INDEMNIFICATION
Section 5.01. Survival Indemnification. The parties agree as to matters of
survival and indemnification as set forth in Article XIII of the Transaction
Agreement.
ARTICLE VI
TERMINATION
Section 6.01. Grounds for Termination. This Agreement may be terminated as set
forth in Article XIV of the Transaction Agreement.
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Miscellaneous. The provisions of Article XV of the Transaction
Agreement are incorporated hereby by reference.
IN WITNESS WHEREOF the parties hereto here caused this Transfer Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
WITNESS: LOCKHEED XXXXXX CORPORATION
By:
----------------------------------- -----------------------------------
Name:
Title:
L-3 COMMUNICATIONS HOLDINGS, INC.
By:
----------------------------------- -----------------------------------
Name:
Title:
II-5
Attachment A
Attachment A to Transfer Agreement
FORM OF EXCHANGE AGREEMENT
This Exchange Agreement is made as of the _______ day of __________ 1997,
by and between Lockheed Xxxxxx Corporation, a Maryland corporation ("Lockheed
Xxxxxx"), and L-3 Communications Holdings, Inc., a Delaware corporation
("Newco").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Transfer Agreement dated March 28, 1997,
by and between the undersigned (the "Transfer Agreement"), Lockheed Xxxxxx (or
the applicable Affiliated Transferor) has agreed to transfer to Newco, Lockheed
Xxxxxx'x (and the Affiliated Transferors') interests in the Transferred Assets
(as defined in the Transfer Agreement); and
WHEREAS, pursuant to the Transfer Agreement, Newco has agreed, among other
things, to assume certain liabilities of Lockheed Xxxxxx and its Affiliates with
respect to the Transferred Assets and the Business;
NOW, THEREFORE, in consideration of the transfer of the Transferred
Assets, the assumption of such liabilities, the payment of the Exchange
Consideration and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lockheed Xxxxxx and Newco agree as
follows:
1. (a) Effective as of 12:01 a.m. (Eastern Standard Time) on the date
hereof, Lockheed Xxxxxx and the Affiliated Transferors, on and subject to all of
the terms and conditions of the Transaction Agreement, do hereby transfer,
assign and deliver to Newco all of the right, title and interest of such Persons
in, to and under the Transferred Assets.
(b) Effective as of 12:01 a.m. (Eastern Standard Time) on the date
hereof, Newco, on and subject to all of the terms and conditions of the
Transaction Agreement, does hereby accept all of the right, title and interest
of Lockheed Xxxxxx and the Affiliated Transferors in, to and under, and, on and
subject to all of the terms and conditions of the Transaction Agreement, accepts
all risk of loss with respect to, all of the Transferred Assets, and Newco, on
and subject to all of the terms and conditions of the Transaction Agreement,
assumes and agrees to pay, perform and discharge promptly and in full when due
all of the Assumed Liabilities.
(c) The parties hereto agree that Newco does not hereby and shall
not otherwise receive or assume, as the case may be, any of the Excluded Assets
or any of the Excluded Liabilities.
2. This Agreement shall be construed in accordance with and governed by
the law of the State of New York without references to choice or conflict of law
principles.
3. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
4. All capitalized terms not otherwise defined herein shall have the
meanings given to them in the Transfer Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WITNESS: LOCKHEED XXXXXX CORPORATION
By:
----------------------------------- -----------------------------------
Name:
Title:
L-3 COMMUNICATIONS HOLDINGS, INC.
By:
----------------------------------- -----------------------------------
Name:
Title:
- 2 -
Attachment IV
See Amendment No. 2 to the Transaction Agreement
Attachment V
See Amendment No. 2 to the Transaction Agreement
Attachment VI
Attachment VI
ADDITIONAL MATTERS RELATING TO THE CALCULATION OF
NET TANGIBLE ASSETS
The Net Tangible Assets on the December Statement and the determination of
the Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset
Amount shall be in accordance with the terms and conditions of the Agreement and
in accordance with GAAP, except as provided in the December Statement and this
Attachment VI. The Proposed Final Net Tangible Asset Amount and the Final Net
Tangible Asset Amount will be determined on a basis consistent with the manner
in which the December Statement was prepared as disclosed in the notes to the
December Statement or as otherwise set forth in this Attachment VI. Therefore,
the Net Tangible Assets on the December Statement and the determination of the
Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset Amount
may differ from the closing balances of Lockheed Xxxxxx and the Business Units
on December 31, 1996 and at the close of business on the Effective Date or the
Closing Date, and the opening balances of Newco on the Closing Date for tax and
financial reporting purposes.
Except as otherwise set forth in this Attachment VI, all principles,
classifications, methods, practices, assumptions and policies used in the
preparation of the December Statement (regardless of whether such principles,
classifications, methods, practices, assumptions and policies are in accordance
with GAAP) will be used or applied in the determination of the Proposed Final
Net Tangible Asset Amount and the Final Net Tangible Asset Amount. Accounting
pronouncements (as defined in Statement of Auditing Standards No. 69) not used
in the preparation of the December Statement will not be used in the
determination of the Proposed Final Net Tangible Asset Amount or the Final Net
Tangible Asset Amount. Except as otherwise set forth in this Attachment VI, the
estimates used in the determination of the Proposed Final Net Tangible Asset
Amount and the Final Net Tangible Asset Amount will be made on a basis
consistent with the principles, policies, methods, practices, factors and
underlying data used in making estimates in the preparation of the December
Statement.
Following are additional agreements and clarifications with respect to the
determination of the Net Tangible Assets on the December Statement and the
determination of the Proposed Final Net Tangible Asset Amount and the Final Net
Tangible Asset Amount:
Adjustment of Reserves and Valuation Accounts. In the determination of the
Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset
Amount, except as otherwise set forth in this Attachment VI, the amount of any
reserves or valuation accounts shall be determined by applying methods,
practices, assumptions, policies, factors and underlying data consistent with
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VI-1
those used in determining the reserves or valuation accounts included in the
December Statement, and there shall be no changes made to any reserves or
valuation accounts (including, without limitation, contract reserves, purchase
accounting reserves, allowances for bad debts, inventory reserves of any kind,
warranty reserves and other reserves), except to the extent that such changes
are required by changes in facts and events occurring after December 31, 1996
and before the Effective Date, it being further understood that there shall be
no increase in the Proposed Final Net Tangible Asset Amount or the Final Net
Tangible Asset Amount as a result of any reversal or other usage of reserves
unless such reversal or usage arises out of facts or events that occur after
December 31, 1996; provided, however, that notwithstanding the foregoing any
reversal or other usage of the Advanced Recorders IR & VLDS Inventory Reserve of
$1,100,000 million, the Advanced Recorders IR & VLDS Capitalized G&A reserve of
$800,000 or the Advanced Recorders IR & VLDS fixed asset reserve of $1,030,000
in connection with any sale of all or a portion of such business to a third
party prior to the Effective Date will result in a corresponding increase in the
Proposed Final Net Tangible Asset Amount or the Final Net Tangible Asset Amount.
Inventory. For purposes of determining the Proposed Final Net Tangible
Asset Amount and the Final Net Tangible Asset Amount, the parties have agreed
contractually that an inventory observation, by the independent auditors as of
the Effective Date, will not be conducted. Furthermore, in the determination of
the Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset
Amount, the raw materials and finished goods inventory relating to the Business
shall be recorded at an amount equal to their book value as included in the
December Statement, except to the extent that changes are required by normal
business activities (purchases, transfers to/from work in process or cost of
sales relief resulting from shipment of products) occurring after December 31,
1996 but before the close of business on the Effective Date, in each case
calculated in accordance with the policies and practices reflected in the
December Statement, it being understood, however, that there shall be no changes
relating to the valuation, existence, or lack of existence of raw materials and
finished goods inventory.
Reserves for Environmental Liabilities. The amount of the reserves for
Environmental Liabilities included in the December Statement shall be fixed at
$3.2 million and the amount used in the determination of the Proposed Final Net
Tangible Asset Amount and the Final Net Tangible Asset Amount shall be fixed at
$6.0 million.
Exclusion of Certain Reserves and Liabilities. There shall not be included
in the Net Tangible Assets in the December Statement or in the determination of
the Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset
Amount any reserve or any liability to the extent such reserve or liability (i)
arises out of, results from or relates to an Excluded Asset or Excluded
Liability, (ii) arises out of, results from or relates to any action taken by
Newco or any of the Purchasers, including but
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VI-2
not limited to any actions taken in connection with the Contemplated
Transactions, (iii) arises out of, results from or relates to any actions taken
or contemplated to be taken by Newco, Lockheed Xxxxxx, any of the Purchasers or
any of their Affiliates, contemporaneously with or subsequent to the Closing, or
(iv) is indemnified against by Lockheed Xxxxxx.
Estimates at Completion ("EAC"). In the determination of the Proposed
Final Net Tangible Asset Amount and the Final Net Tangible Asset Amount, there
shall be no changes made to the EACs from those EACs used in the preparation of
the December Statement, except to the extent that such changes are required by
changes in facts and events occurring after December 31, 1996 and before the
Effective Date.
Loss Contracts. In the determination of the Proposed Final Net Tangible
Asset Amount and the Final Net Tangible Asset Amount, there shall be no changes
made to the provisions for loss contracts from those used in the preparation of
the December Statement, except to the extent that such changes are required by
changes in facts and events occurring after December 31, 1996 and before the
Effective Date.
Due Diligence Costs; Organization of Newco. There shall be no amount
accrued or reserved for in connection with the determination of the Proposed
Final Net Tangible Asset Amount and the Final Net Tangible Asset Amount for any
obligations or liabilities incurred in connection with Newco's, Lockheed
Xxxxxx'x or the Purchaser's due diligence efforts in connection with the
Contemplated Transactions, including without limitation any fees and expenses of
the counsel, independent accountants or other agents, advisors or consultants of
Newco, Lockheed Xxxxxx or any of the Purchasers, and there shall not be
considered in the determination of the Proposed Final Net Tangible Asset Amount
and the Final Net Tangible Asset Amount any fees, expenses, reserves (or
valuation accounts) or liabilities associated with the incorporation,
organization, formation, capitalization or financing of Newco or with any
restructuring of the Business or any of the Business Units contemplated or
implemented by Newco.
Certain Expenses. There shall not be considered in the determination of
the Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset
Amount any reserve or any liability to the extent such reserve or liability
relates to fees or expenses that, in accordance with the Transaction Documents,
are to be shared by Lockheed Xxxxxx and Newco including, without limitation, the
fees and expenses contemplated by Section 2.03(f) and Section 15.03 of the
Agreement, or in accordance with Section 15.03 of the Agreement are to be paid
by Newco if the Closing occurs.
Pensions, OPEBs, etc. There shall not be considered in the determination
of the Net Tangible Assets on the December Statement or the determination of the
Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset Amount
any reserve,
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VI-3
liability or asset to the extent such reserve, liability or asset arises out of,
results from or relates to pension benefits, retirement benefits or other
post-employment benefits.
Going Concern. For purposes of determining the Net Tangible Assets in the
December Statement and determining the Proposed Final Net Tangible Asset Amount
and the Final Net Tangible Asset Amount, Newco and the Business Units, and the
businesses conducted and to be conducted by each of them, will be considered a
"going concern" and all of the Transferred Assets shall be deemed to be actively
used in the Business and not held for sale or disposal.
Miscellaneous. The matters referenced below shall be based on the
following principles:
(i) the Net Tangible Assets in the December Statement and the
determination of the Proposed Final Net Tangible Asset Amount and the
Final Net Tangible Asset Amount shall not include a reserve relating to
the Camden CAS 410 Issue;
(ii) there shall not be considered in the Net Tangible Assets in the
December Statement and the determination of the Proposed Final Net
Tangible Asset Amount and the Final Net Tangible Asset Amount any reserve
or liability relating to the Sarasota Asset Step-Up Issue;
(iii) there shall not be considered in the Net Tangible Assets in
the December Statement any reserve or liability relating to the Management
Incentive Compensation Plan with respect to the personnel at the location
covered by the NY Leases;
(iv) the Net Tangible Assets in the December Statement and the
Proposed Final Net Tangible Asset Amount and the Final Net Tangible Asset
Amount shall include assets relating to the LMEAP Assembly Plant in
Goodyear, Arizona which assets shall be recorded at $900,000 prior to the
LMEAP reserve recorded by the Conic Business Unit, which reserve shall be
retained by Lockheed Xxxxxx;
(v) in the determination of the Proposed Final Net Tangible Asset
Amount and the Final Net Tangible Asset Amount, the property, plant and
equipment relating to the Business shall be recorded at an amount equal to
their book value as included in the December Statement, except to the
extent that changes are required by changes in facts and events occurring
after December 31, 1996 (it being understood, however, that there shall be
no such changes relating to the valuation of the property, plant or
equipment), adjusted for additions or disposals and depreciation and
amortization from December 31, 1996 to the close of business on the
Effective Date, in each case calculated in accordance with the policies
and practices reflected in the December Statement;
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VI-4
(vi) the Transferred Assets and Assumed Liabilities relating to the
Airport Explosive Detection Business shall be included in the Net Tangible
Assets in the December Statement at $0 and shall be included in the
determination of the Proposed Final Net Tangible Asset Amount and the
Final Net Tangible Asset Amount at ($600,000);
(vii) the Net Tangible Assets in the December Statement shall
include assets for the Instrumentation Recorder Product Line of the
Advanced Recorders Business Unit, net of any reserves or liabilities
associated with such assets, which net assets shall be recorded at
$700,000;
(viii) the Net Tangible Assets in the December Statement shall
assume that the reserve with respect to the exercise of TSS options at the
Wideband Business Unit shall be $1.0 million and such reserve used in the
determination of the Proposed Final Net Tangible Asset Amount and the
Final Net Tangible Asset Amount shall be assumed to be $2.0 million;
(ix) the Net Tangible Assets in the December Statement and the
determination of the Proposed Final Net Tangible Asset Amount and the
Final Net Tangible Asset Amount shall include in the inventory of the
Advanced Recorders Business Unit general and administrative expenses fixed
at $4.5 million with a related reserve of $1.8 million, and such general
and administrative expenses net of the related reserve shall be recorded
at $0 in the Proposed Final Net Tangible Asset Amount and the Final Net
Tangible Asset Amount;
(x) the Net Tangible Assets in the December Statement and the
determination of the Proposed Net Tangible Asset Amount and the Final Net
Tangible Asset Amount shall assume that the liability, if any, and related
asset, if any, with respect to the Microcom Business' earn out obligation
to its former stockholders net to $0; and
(xi) for purposes of determining the Net Tangible Assets in the
December Statement and determining the Proposed Final Net Tangible Asset
Amount and the Final Net Tangible Asset Amount, the parties have agreed
contractually to the following changes to the books and records of the
Business Units as of the referenced dates:
December 31, 1996 Effective Date(a)
----------------- --------------
(in millions) (in millions)
ALL
Eliminate Cash/Negative Cash $(1.6) (b)
Eliminate Duplicate Pension/Benefit 6.0 (b)
Liabilities(c)
Building Writedown or Writeup(c) 0.0 $ 0.0
EDS Net Assets 0.0 0.0
EDS M&DS Subcontract Reserve 0.0 (0.6)(d)
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VI-5
ADVANCED RECORDERS
Universal Litigation 0.0 0.0
G&A in Inventory Change(c) 0.0 (2.7)
Sarasota Asset Step-Up Issue(c) 0.0 0.0
Reversal of Capitalized Certification Costs 0.0 0.0
CPS-100 Audit Labor Mischarging Allegations 0.0 0.0
ADC Settlement (0.3) (b)
CAMDEN
Aegis Power Supply Contract and Option (1.0) (1.0)
Camden CAS 410 Issue(c) 0.0 0.0
Unreasonable Indirect Labor Allegations 0.0 0.0
Old Receivables 0.0 0.0
DCAA Rate Close-Out Issues 0.0 0.0
NOAA Contract Defective Pricing Allegations 0.0 0.0
Reversal of Division Reserve 0.0 0.0
Truck Depot Severance Reserve 0.0 (0.2)
WIDEBAND
Severance 0.0 0.0
TSS Options (1.0) (3.0)
Reverse Fixed Wireless Loop License Agreement 0.0 0.0
Reverse Fixed Wireless Loop Deferred cost 0.0 0.0
Reverse Fixed Wireless Loop Reserve 0.0 0.0
DISPLAYS
Add Alpharetta Building 4.0 (b)(e)
XXXXX-EAST
Add FSI (Lowell, MA) Net Tangible Assets 4.8 (b)
TELEMETRY & INSTRUMENTATION
G&A Costs in Inventory (1.0) (1.0)
CONIC
Add LMEAP Assets 0.9 0.9
Xxxxxxxxx Litigation Reserve 0.0 0.0
LMEAP Reserve Elimination 0.5 0.5
MICROCOM
Earn Out 0.0 0.0
CORPORATE PUSHDOWNS
NY Leasehold Improvements 3.5 3.5(e)
NY Overlays 1.8 1.8
RFA and RAA 4.4 (b)
Incurred but not reported Reserve (4.1) (4.1)
Environmental Reserve(c) (3.2) (6.0)
Workers Compensation (1.2) (1.2)
Management Incentive Compensation Plan (NYNC) 0.0 (b)
Deferred Management Incentive Compensation (0.3) (1.2)
Plan
Vacation Accrual (0.3) (0.3)
(a) Closing reflects the agreed upon changes as of the close of business on
the Effective Date.
(b) To be recorded based on the actual balance (after giving effect to the
December 31, 1996 adjustments) as of the close of business on the
Effective Date.
(c) As discussed above.
(d) As referenced in clause (vi) under "Miscellaneous" above.
(e) Subject to the specific provisions of clause (v) under "Miscellaneous"
above.
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VI-6
All amounts in parentheses in the foregoing table represent reductions to Net
Tangible Assets; amounts not in parentheses represent increases in Net Tangible
Assets.
The parties also have agreed that, with respect to the items referenced in
the foregoing table, other than as referenced above there will not be any
changes to the books and records of the Business Units from December 31, 1996 to
the Effective Date.
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VI-7
Attachment VII
ATTACHMENT VII
EXCHANGE CONSIDERATION SCHEDULE
Transferor Exchange Consideration
---------- ----------------------
Lockheed Xxxxxx Corporation Stock: ______ shares of
Newco Class A Stock
Cash: $_____
Lockheed Xxxxxx Tactical Stock: _____ shares of
Systems, Inc. Newco Class A Stock
Cash: $______
Randtron Systems, Inc. Stock: ______ shares of
Newco Class A Stock
Cash: $______
Lockheed Xxxxxx Xxxxxxxxx Stock: ______ shares of
Corporation Newco Class A Stock
Cash: $______
Conic Corporation Stock: ______ shares of
Newco Class A Stock
Cash: $______
Lockheed Xxxxxx Microcom Stock: ______ shares of
Corporation Newco Class A Stock
Cash: $______
Lockheed Xxxxxx Hycor, Inc. Stock: ______ shares of
Newco Class A Stock
Cash: $______
The XXXXX Microwave Stock: ______ shares of
Corporation Newco Class A Stock
Cash: $______
[OTHER AFFILIATED TRANSFERORS] Stock: ______ shares of
Newco Class A Stock
Cash: $______
EXECUTION COPY
VII-1
Attachment VIII
See Amendment No. 2 to the Transaction Agreement
Attachment IX
See Amendment No. 2 to the Transaction Agreement
Attachment X
See Amendment No. 2 to the Transaction Agreement
Attachment XI
Attachment XI
EXCEPTIONS TO NON-SOLICITATION OF EMPLOYEES
Exceptions to Non-Solicitation by Newco
Name Division Department
---- -------- ----------
Xxxxx Xxxxxx Xxxxxxxxx Defense Systems Finance
Xxxx Mega TDS - East Finance
Xxxxxx Xxxxxx TDS - East Finance
Xxxxxxx Xxxxxxxxx TDS - East Finance
Xxx Xxxxxxxxx Corporate Tax
Xxxxxxx Xxxxxxx TDS - East Procurement
Xxxxxx Xxxxxxxxx Corporate Risk Management
[ILLEGIBLE] Corporate ES&H
[ILLEGIBLE] TDS - Akron President
Xxxx Xxxxxx Washington Office Export Controls
Exceptions to Non-Solicitation by Lockheed Xxxxxx
Name Division
---- --------
Xxxxxxx Xxxxxxx Wideband Systems
Xxxx Xxxxxxx
EXECUTION COPY
XI-1
Attachment XII
Attachment XII
LOCKHEED XXXXXX LEGAL OPINIONS
1. Each of Lockheed Xxxxxx and each Affiliated Transferor is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of its incorporation and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on the
Business as now conducted, except where the failure to have such licenses,
authorizations, consents and approvals has not had, and could not reasonably be
expected to have, a Material Adverse Effect on the Business. Each of Lockheed
Xxxxxx and each Affiliated Transferor, as the case may be, is duly qualified to
do business as a foreign corporation in each jurisdiction where the character of
the property owned or leased by it or the nature of its activities make such
qualification necessary to carry on the Business as now conducted, except where
the failure to be so qualified has not had, and could not reasonably be expected
to have, a Material Adverse Effect on the Business.
2. The execution, delivery and performance by Lockheed Xxxxxx and each
Affiliated Transferor of each of the Transaction Documents to which it is a
party and the consummation by Lockheed Xxxxxx and each Affiliated Transferor of
the Contemplated Transactions are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. Each of the
Transaction Documents to which it is a party constitutes a legal, valid and
binding obligation of Lockheed Xxxxxx and each Affiliated Transferor enforceable
against it in accordance with its terms (i) except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, (ii) subject to the
limitations imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity, and (iii)
except to the extent that indemnification and contribution for securities law
liabilities may be unenforceable as against public policy.
3. To such counsel's knowledge, the execution, delivery and performance by
Lockheed Xxxxxx and each Affiliated Transferor of the Transaction Documents to
which it is a party require no action by or in respect of, or consent or
approval of, or filing with, any Governmental Authority other than as may have
been obtained and other than as may be referenced in Section B.03 of the
Transaction Agreement or set forth in Section B.03 of the Disclosure Schedules.
4. The execution, delivery and performance by Lockheed Xxxxxx of the
Transaction Documents do not and will not contravene
EXECUTION COPY
XII-1
or conflict with the charter or bylaws of Lockheed Xxxxxx or any Affiliated
Transferor.
XII-2
Attachment XIII
Attachment XIII
NEWCO LEGAL OPINIONS
1. Newco is a corporation duly incorporated, validly existing and in good
standing under the laws of the Stare of Delaware.
2. The execution, delivery and performance by Newco of each of the
Transaction Documents to which it is a party and the consummation by Newco of
the Contemplated Transactions are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. Each of the
Transaction Documents to which it is a party constitutes a legal, valid and
binding obligation of Newco enforceable against it in accordance with its terms
(i) except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally, including the
effect of statutory and other laws regarding fraudulent conveyances and
preferential transfers, (ii) subject to the limitations imposed by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding at law or in equity, and (iii) except to the extent that
indemnification and contribution for securities law liabilities may be
unenforceable as against public policy.
3. To such counsel's knowledge, the execution, delivery and performance by
Newco of the Transaction Documents to which it is a party require no action by
or in respect of, or consent or approval of, or filing with, any Governmental
Authority other than as may have been obtained and other than as may be
referenced in Section B.03 of the Transaction Agreement or set forth in Section
B.03 of the Disclosure Schedules.
4. The execution, delivery and performance by Newco of the Transaction
Documents do not and will not contravene or conflict with the charter or bylaws
of Newco.
EXECUTION COPY
XIII-1
Attachment XIV
See Amendment No. 2 to the Transaction Agreement
Attachment XV
Attachment XV
PATENTS AND PATENT APPLICATIONS
CONSTITUTING TRANSFERRED ASSETS
1. COMMUNICATIONS SYSTEMS
194 Patents (See Attached Listing)
2. WIDEBAND SYSTEMS
34 Patents, 18 Patent Applications (See Attached Listing)
3. DISPLAY SYSTEMS
1 Patent, 2 Patent Applications (See Attached Listing)
4. MICROWAVE XXXXX XXXX
2 Patent Applications (See Attached Listing)
5. RANDTRON
1 Patent (See Attached Listing)
6. ADVANCED RECORDERS
1 Patent, 2 Patent Applications (See Attached Listing)
7. MICROWAVE XXXXX EAST
25 Patents, 5 Patent Applications (See Attached Listing)
8. HYCOR
No Patents or Patent Applications
9. MICROCOM
No Patents or Patent Applications
10. CONIC
No Patents or Patent Applications
11. TELEMETRY & INSTRUMENTATION
No Patents or Patent Applications
12. AIRPORT EXPLOSIVE DETECTION BUSINESS
4 Patent Applications (See Attached Listing)
EXECUTION COPY
XV-1
