Exhibit 10.57
SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
November 4, 2003, among L-3 Communications Aeromet, Inc., an Oregon corporation,
AMI Instruments, Inc., an Oklahoma corporation, Apcom, Inc., a Maryland
corporation, Broadcast Sports Inc., a Delaware corporation, Celerity Systems
Incorporated, a California corporation, Electrodynamics, Inc., an Arizona
corporation, L-3 Communications Avionics Component Overhaul and Repair, Inc., a
Delaware corporation, L-3 Communications Avionics Systems, Inc., a Delaware
corporation, L-3 Communications FlightSystems Corporation, an Ohio corporation,
Xxxxxxxx Inc., a Delaware corporation, Hygienetics Environmental Services, Inc.,
a Delaware corporation, Interstate Electronics Corporation, a California
corporation, KDI Precision Products, Inc., a Delaware corporation, L-3
Communications AIS GP Corporation, a Delaware corporation, L-3 Communications
Atlantic Science and Technology Corporation, a New Jersey corporation, L-3
Communications Aydin Corporation, a Delaware corporation, L-3 Communications
Corporation, a Delaware corporation, L-3 Communications ESSCO, Inc., a Delaware
corporation, L-3 Communications Government Services, Inc., a Virginia
corporation, L-3 Communications ILEX Systems, Inc., a Delaware corporation, X-0
Xxxxxxxxxxxxxx XXX Corporation, a Connecticut corporation, L-3 Communications
Integrated Systems L.P., a Delaware limited partnership, L-3 Communications
Investments, Inc., a Delaware corporation, L-3 Communications Xxxxx Associates,
Inc., a Delaware corporation, L-3 Communications Security and Detection Systems
Corporation Delaware, a Delaware corporation, L-3 Communications Security and
Detection Systems Corporation California, a California corporation, L-3
Communications SPD Technologies, Inc., a Delaware corporation, L-3
Communications Storm Control Systems, Inc., a California corporation, L-3
Communications TMA Corporation, a Virginia corporation, L-3 Communications
Westwood Corporation, a Nevada corporation, MCTI Acquisition Corporation, a
Maryland Corporation, Microdyne Communications Technologies Incorporated, a
Maryland corporation, Microdyne Corporation, a Maryland corporation, Microdyne
Outsourcing Incorporated, a Maryland corporation, MPRI, Inc., a Delaware
corporation, Pac Ord Inc., a Delaware corporation, Power Paragon, Inc., a
Delaware corporation, Ship Analytics, Inc., a Connecticut corporation, Ship
Analytics International, Inc., a Delaware corporation, Ship Analytics USA, Inc.,
a Connecticut corporation, Southern California Microwave, Inc., a California
corporation, SPD Electrical Systems, Inc., a Delaware corporation, SPD Holdings,
Inc., a Delaware corporation, SPD Switchgear Inc., a Delaware corporation,
SYColeman Corporation, a Florida corporation, Troll Technology Corporation, a
California corporation, Wescam Air Ops Inc., a Delaware corporation, Wescam Air
Ops LLC, a Delaware limited liability, Wescam Holdings (US) Inc., a Delaware
corporation, Wescam Incorporated, a Florida corporation, Wescam LLC, a Delaware
limited liability company, Wescam Sonoma Inc., a California corporation and Wolf
Coach, Inc., a Massachusetts corporation (each, a "Guarantor", and collectively,
the "Guarantors"), each an indirect subsidiary of L-3 Communications Holdings,
Inc. (or its permitted successor), a Delaware corporation (the "Company"), the
Company and The Bank of New York, as trustee under the indenture referred to
below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of November 21, 2000 providing for the
issuance of an aggregate principal amount of up to $300,000,000 of 5 1/4%
Convertible Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guarantors shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guarantors shall unconditionally guarantee all of the
Company's Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section 14.7 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guarantor hereby agrees as follows:
(a) Each Guarantor, jointly and severally with all other current and
future guarantors of the Notes (collectively, the "Guaranteeing
Subsidiaries" and each, a "Guaranteeing Subsidiary"),
unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its
successors and assigns, regardless of the validity and
enforceability of the Indenture, the Notes or the Obligations of
the Company under the Indenture or the Notes, that:
(i) the principal of, premium, interest and additional amounts,
if any, on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of,
premium, interest and Liquidated Damages, if any, on the
Notes, to the extent lawful, and all other Obligations of
the Company to the Holders or the Trustee thereunder or
under the Indenture will be promptly paid in full, all in
accordance with the terms thereof; and
(ii) in case of any extension of time for payment or renewal of
any Notes or any of such other Obligations, that the same
will be promptly paid in full when due in accordance with
the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
(b) Notwithstanding the foregoing, in the event that this Guarantee
would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of each Guarantor under this
Supplemental Indenture and its Guarantee shall be reduced to the
maximum amount permissible under such fraudulent conveyance or
similar law.
3. EXECUTION AND DELIVERY OF GUARANTEES.
(a) To evidence its Guarantee set forth in this Supplemental
Indenture, each Guarantor hereby agrees that a notation of such
Guarantee, the form of which is included in the Form of Security
attached as Exhibit A to the Indenture, shall be endorsed by an
officer of such Guarantor on each Note authenticated and
delivered by the Trustee after the date hereof.
(b) Notwithstanding the foregoing, each Guarantor hereby agrees that
its Guarantee set forth herein shall remain in full force and
effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
(c) If an Officer whose signature is on this Supplemental Indenture
or on the Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Guarantee is endorsed,
the Guarantee shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the
Guarantee set forth in this Supplemental Indenture on behalf of
each Guarantor.
(e) Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, regardless of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions of the Notes or the
Indenture, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(f) Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first
against the Company, protest, notice and all demands whatsoever
and covenants that its Guarantee made pursuant to this
Supplemental Indenture will not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(g) If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Guarantor, or any
Custodian, Trustee, liquidator or other similar official acting
in relation to either the Company or such Guarantor, any amount
paid by either to the Trustee or such Holder, the Guarantee made
pursuant to this Supplemental Indenture, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(h) Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees
that, as between such Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand:
(i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 4 of the Indenture for
the purposes of the Guarantee made pursuant to this
Supplemental Indenture, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby;
(ii) in the event of any declaration of acceleration of such
obligations as provided in Article 4 of the Indenture, such
obligations (whether or not due and payable) shall forthwith
become due and payable by such Guarantor for the purpose of
the Guarantee made pursuant to this Supplemental Indenture;
and
(iii) each Guarantor shall have the right to seek contribution
from any other non-paying Guarantor so long as the exercise
of such right does not impair the rights of the Holders or
the Trustee under the Guarantee made pursuant to this
Supplemental Indenture.
4. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 6 and 9 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the
Notes shall prevent (a) any consolidation or merger of any
Guarantor with or into the Company or any other Guaranteeing
Subsidiary, (b) any transfer, sale or conveyance of the property
of any Guarantor as an entirety or substantially as an entirety,
to the Company or any other Guaranteeing Subsidiary or (c) any
merger of a Guarantor with or into an Affiliate of that Guarantor
in another State of the United States so long as the amount of
Indebtedness of the Company and the domestic non-Guarantor
subsidiaries is not increased thereby.
(b) Except as set forth in Article 9 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the
Notes shall prevent any consolidation or merger of any Guarantor
with or into a corporation or corporations other than the Company
or any other Guaranteeing Subsidiary (in each case, whether or
not affiliated with the Guarantor), or successive consolidations
or mergers in which a Guarantor or its successor or successors
shall be a party or parties, or shall prevent any sale or
conveyance of the property of any Guarantor as an entirety or
substantially as an entirety, to a corporation other than the
Company or any other Guaranteeing Subsidiary (in each case,
whether or not affiliated with the Guarantor) authorized to
acquire and operate the same; provided, however, that each
Guarantor hereby covenants and agrees that (i) subject to the
Indenture, upon any such consolidation, merger, sale or
conveyance, the due and punctual performance and observance of
all of the covenants and conditions of the Indenture and this
Supplemental Indenture to be performed by such Guarantor, shall
be expressly assumed (in the event that such Guarantor is not the
surviving corporation in the merger), by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to
the Trustee, by the corporation formed by such consolidation, or
into which such Guarantor shall have been merged, or by the
corporation which shall have acquired such property, (ii)
immediately after giving effect to such consolidation, merger,
sale or conveyance no Default or Event of Default exists, and
(iii) such transaction will only be permitted under the Indenture
and this Supplemental Indenture if it would be permitted under
the terms of all of the indentures governing the Outstanding
Senior Subordinated Notes as the same are in effect on the date
hereof (whether or not those indentures are subsequently amended,
waived, modified or terminated or expire and whether or not any
of these notes continue to be outstanding).
(c) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Guarantee made pursuant to this
Supplemental Indenture and the due and punctual performance of
all of the covenants and conditions of the Indenture
and this Supplemental Indenture to be performed by each
Guarantor, such successor corporation shall succeed to and be
substituted for such Guarantor with the same effect as if it had
been named herein as one of the Guarantors. Such successor
corporation thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon the Notes issuable under the
Indenture which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Guarantees so
issued shall in all respects have the same legal rank and benefit
under the Indenture and this Supplemental Indenture as the
Guarantees theretofore and thereafter issued in accordance with
the terms of the Indenture and this Supplemental Indenture as
though all of such Guarantees had been issued at the date of the
execution hereof.
6. RELEASES.
(a) Concurrently with any sale of assets (including, if applicable,
all of the Capital Stock of a Guarantor), all Liens, if any, in
favor of the Trustee in the assets sold thereby shall be
released. If the assets sold in such sale or other disposition
include all or substantially all of the assets of a Guarantor or
all of the Capital Stock of a Guarantor, then the Guarantor (in
the event of a sale or other disposition of all of the Capital
Stock of such Guarantor) or the Person acquiring the property (in
the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) shall be released from and
relieved of its obligations under this Supplemental Indenture and
its Guarantee made pursuant hereto. Upon delivery by the Company
to the Trustee of an Officers' Certificate to the effect that
such sale or other disposition was made by the Company or the
Guarantor, as the case may be, in accordance with the provisions
of the Indenture and this Supplemental Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of the Guarantor from its obligations under
this Supplemental Indenture and its Guarantee made pursuant
hereto. If the Guarantor is not released from its obligations
under its Guarantee, it shall remain liable for the full amount
of principal of and interest on the Notes and for the other
obligations of such Guarantor under the Indenture as provided in
this Supplemental Indenture.
(b) Upon the designation of a Guarantor as an Excluded Subsidiary in
accordance with the terms of the Indenture and the indentures
governing the Outstanding Senior Subordinated Notes as the same
are in effect on the date hereof (whether or not those indentures
are subsequently amended, waived, modified or terminated or
expire and whether or not any of those notes continue to be
outstanding),
such Guarantor shall be released and relieved of its obligations
under the Indenture and this Supplemental Indenture. Upon
delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such
designation of such Guarantor as an Excluded Subsidiary was made
by the Company in accordance with the provisions of the Indenture
and the indentures governing the Outstanding Senior Subordinated
Notes as the same are in effect on the date hereof (whether or
not those indentures are subsequently amended, waived, modified,
terminated or expired and whether or not any of those notes
continue to be outstanding), the Trustee shall execute any
documents reasonably required in order to evidence the release of
such Guarantor from its obligations under its Guarantee. Any
Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any
Guarantor under the Indenture as provided herein.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of any Guarantor, as such,
shall have any liability for any obligations of the Company or any Guarantor
under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such
a waiver is against public policy.
7. SUBORDINATION OF GUARANTEES; ANTI-LAYERING. No Guarantor shall incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
that is subordinate or junior in right of payment to any Senior Debt of a
Guarantor and senior in any respect in right of payment to any of the
Guarantees. Notwithstanding the foregoing sentence, the Guarantee of each
Guarantor shall be subordinated to the prior payment in full of all Senior Debt
of that Guarantor, which shall include all guarantees of Senior Debt.
8. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guarantors and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: November 4, 2003 L-3 COMMUNICATIONS HOLDINGS, INC.
By: ______________________________________
Name:
Title:
Dated: November 4, 2003 L-3 COMMUNICATIONS AEROMET, INC.
AMI INSTRUMENTS, INC.
APCOM, INC.
BROADCAST SPORTS INC.
CELERITY SYSTEMS INCORPORATED
ELECTRODYNAMICS, INC.
L-3 COMMUNICATIONS AVIONICS COMPONENT
OVERHAUL AND REPAIR, INC.
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS FLIGHTSYSTEMS
CORPORATION
XXXXXXXX INC.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
INTERSTATE ELECTRONICS CORPORATION
KDI PRECISION PRODUCTS, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS ATLANTIC SCIENCE AND
TECHNOLOGY CORPORATION
L-3 COMMUNICATIONS AYDIN CORPORATION
L-3 COMMUNICATIONS CORPORATION
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS GOVERNMENT SERVICES, INC.
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
X-0 XXXXXXXXXXXXXX XXX CORPORATION
L-3 COMMUNICATIONS INTEGRATED
SYSTEMS L.P.
L-3 COMMUNICATIONS INVESTMENTS, INC.
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC.
L-3 COMMUNICATIONS SECURITY AND
DETECTION SYSTEMS CORPORATION
DELAWARE
L-3 COMMUNICATIONS SECURITY AND
DETECTION SYSTEMS CORPORATION
CALIFORNIA
L-3 COMMUNICATIONS SPD TECHNOLOGIES, INC.
L-3 COMMUNICATIONS STORM CONTROL
SYSTEMS, INC.
L-3 COMMUNICATIONS TMA CORPORATION
L-3 COMMUNICATIONS WESTWOOD CORPORATION
MCTI ACQUISITION CORPORATION
INCORPORATED
MICRODYNE CORPORATION
MICRODYNE OUTSOURCING INCORPORATED
MPRI, INC.
PAC ORD INC.
POWER PARAGON, INC.
SHIP ANALYTICS, INC.
SHIP ANALYTICS INTERNATIONAL, INC.
SHIP ANALYTICS USA, INC.
SOUTHERN CALIFORNIA MICROWAVE, INC.
SPD ELECTRICAL SYSTEMS, INC.
SPD HOLDINGS, INC.
SPD SWITCHGEAR INC.
SYCOLEMAN CORPORATION
TROLL TECHNOLOGY CORPORATION
WESCAM AIR OPS INC.
WESCAM AIR OPS LLC
WESCAM INCORPORATED
WESCAM LLC
WESCAM SONOMA INC.
WESCAM HOLDINGS (US) INC.
WOLF COACH, INC.
As Guaranteeing Subsidiaries
By: ______________________________________
Name:
Title:
Dated: November 4, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By: ________________________________
Name:
Title:
