WHEREAS, the Company entered into an Agreement and Plan of Merger, dated as of January 4, 2021, by and among the Company, Parent Guarantor, Firework Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent Guarantor (“Merger Sub I”) and Firework Merger Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent Guarantor (“Merger Sub II”), pursuant to which (i) Merger Sub I will be merged with and into the Company, with the Company as the surviving corporation in accordance with the Delaware General Corporation Law (“Merger I”), and immediately thereafter (ii) Parent Guarantor will cause the Company, as the surviving corporation in Merger I, to merge with and into Merger Sub II, with Merger Sub II (to be renamed TDY FLIR), as the surviving company in such merger (“Merger II”) (collectively, the “Transactions”);
WHEREAS, each of the Company and TDY FLIR has duly authorized the execution and delivery of this Second Supplemental Indenture to provide for the Assumption and Succession;
WHEREAS, Section 9.01(k) of the Base Indenture provides that, without the consent of any Holders of the Notes, the Company and the Trustee may enter into one or more supplemental indentures to add one or more guarantors with respect to the Notes as parties to the Indenture;
WHEREAS, the Parent Guarantor is not under any obligation to guarantee any of the Company’s or TDY FLIR’s obligations under the Notes or the Indenture but in connection with the Transactions desires to guarantee unconditionally all of TDY FLIR’s obligations under the Notes and the Indenture pursuant to a guarantee on the terms and conditions set forth herein;
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Parent Guarantor, TDY FLIR and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture have been done;
NOW, THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, TDY FLIR and the Parent Guarantor covenant and agree with the Trustee, for the equal and ratable benefit of the Holders of the Notes, that the Indenture is supplemented and amended, to the extent expressed herein as follows:
1. Generally.
(a) Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed thereto in the Indenture.
(b) The rules of construction set forth in the Indenture shall be applied hereto as if set forth in full herein.
2. Succession to Indenture. As of the effective time of the consummation of Merger II, TDY FLIR hereby assumes the due and punctual payment of the principal of and any premium and interest on the Notes and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed and hereby succeeds to, and is substituted for, and may exercise every right and power of, the Company under the Indenture with the same effect as if TDY FLIR had been named as the Company in the Indenture.
3. Agreement to Guarantee.
(a) The Parent Guarantor hereby fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns (the “Guarantee”) on an unsecured, unsubordinated basis and equal in right of payment to all existing and future unsecured, unsubordinated indebtedness of the Parent Guarantor, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of TDY FLIR hereunder or thereunder, the punctual payment when due of all monetary obligations of TDY FLIR under the Indenture and the Notes, whether for principal of or interest on the Notes.
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