EXHIBIT 10.96
SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
Supplemental Indenture (this "Supplemental Indenture"), dated as of
February 25, 2004, among L-3 Communications Corporation (or its permitted
successor), a Delaware corporation (the "Company"), each a direct or indirect
subsidiary of the Company signatory hereto (each, a "Guaranteeing Subsidiary",
and collectively, the "Guaranteeing Subsidiaries"), 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
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WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of December 22, 2003 providing for the
issuance of an unlimited amount of 6 1/8% Senior Subordinated Notes due 2014
(the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company's Obligations (as defined in the
Indenture) under the Notes and the Indenture on the terms and conditions set
forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 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
Guaranteeing Subsidiaries 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 Guaranteeing Subsidiary hereby agrees as
follows:
(a) Such Guaranteeing Subsidiary, jointly and severally with all
other current and future guarantors of the Notes (collectively,
the "Guarantors" and each, a "Guarantor"), 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 Interest,
if any, on the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or
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otherwise, and interest on the overdue principal of,
premium, interest and Additional Amounts, 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 Subsidiary
Guarantee would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of such Guaranteeing Subsidiary under
this Supplemental Indenture and its Subsidiary Guarantee shall be
reduced to the maximum amount permissible under such fraudulent
conveyance or similar law.
3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
(a) To evidence its Subsidiary Guarantee set forth in this
Supplemental Indenture, such Guaranteeing Subsidiary hereby
agrees that a notation of such Subsidiary Guarantee substantially
in the form of Exhibit F to the Indenture shall be endorsed by an
officer of such Guaranteeing Subsidiary on each Note
authenticated and delivered by the Trustee after the date hereof.
(b) Notwithstanding the foregoing, such Guaranteeing Subsidiary
hereby agrees that its Subsidiary Guarantee set forth herein
shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Subsidiary Guarantee.
(c) If an Officer whose signature is on this Supplemental Indenture
or on the Subsidiary Guarantee no longer holds that office at the
time the Trustee authenticates the Note on which a Subsidiary
Guarantee is endorsed, the Subsidiary 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
Subsidiary Guarantee set forth in this Supplemental Indenture on
behalf of each Guaranteeing Subsidiary.
(e) Each Guaranteeing Subsidiary hereby agrees that its Obligations
hereunder shall be unconditional, regardless of the validity,
regularity or enforceability of the Notes or the Indenture, the
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absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(f) Each Guaranteeing Subsidiary 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
Subsidiary 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 Guaranteeing
Subsidiary, or any custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or such
Guaranteeing Subsidiary, any amount paid by either to the Trustee
or such Holder, the Subsidiary Guarantee made pursuant to this
Supplemental Indenture, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(h) Each Guaranteeing Subsidiary 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 Guaranteeing Subsidiary
further agrees that, as between such Guaranteeing Subsidiary, 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 6 of the Indenture for
the purposes of the Subsidiary Guarantee made pursuant to
this Supplemental Indenture, notwithstanding any stay,
injunction or other prohibition preventing such acceleration
in respect of the Obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of such
Obligations as provided in Article 6 of the Indenture, such
Obligations (whether or not due and payable) shall forthwith
become due and payable by such Guaranteeing Subsidiary for
the purpose of the Subsidiary Guarantee made pursuant to
this Supplemental Indenture.
(i) Each Guaranteeing Subsidiary shall have the right to seek
contribution from any other non-paying Guaranteeing Subsidiary so
long as the exercise of such right does not impair the rights of
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the Holders or the Trustee under the Subsidiary Guarantee made
pursuant to this Supplemental Indenture.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the
Notes shall prevent any consolidation or merger of any
Guaranteeing Subsidiary with or into the Company or any other
Guarantor or shall prevent any transfer, sale or conveyance of
the property of any Guaranteeing Subsidiary as an entirety or
substantially as an entirety, to the Company or any other
Guarantor.
(b) Except as set forth in Article 4 and 5 of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the
Notes shall prevent any consolidation or merger of any
Guaranteeing Subsidiary with or into a corporation or
corporations other than the Company or any other Guarantor (in
each case, whether or not affiliated with the Guaranteeing
Subsidiary), or successive consolidations or mergers in which a
Guaranteeing Subsidiary or its successor or successors shall be a
party or parties, or shall prevent any sale or conveyance of the
property of any Guaranteeing Subsidiary as an entirety or
substantially as an entirety, to a corporation other than the
Company or any other Guarantor (in each case, whether or not
affiliated with the Guaranteeing Subsidiary) authorized to
acquire and operate the same; provided, however, that each
Guaranteeing Subsidiary 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
Guaranteeing Subsidiaries, shall be expressly assumed (in the
event that such Guaranteeing Subsidiary 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 Guaranteeing Subsidiary shall have been merged,
or by the corporation which shall have acquired such property and
(ii) immediately after giving effect to such consolidation,
merger, sale or conveyance no Default or Event of Default exists.
(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 Subsidiary Guarantee made pursuant
to this Supplemental Indenture and the due and
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punctual performance of all of the covenants and conditions of
the Indenture and this Supplemental Indenture to be performed by
such Guaranteeing Subsidiary, such successor corporation shall
succeed to and be substituted for such Guaranteeing Subsidiary
with the same effect as if it had been named herein as the
Guaranteeing Subsidiary. Such successor corporation thereupon may
cause to be signed any or all of the Subsidiary 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 Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under
the Indenture and this Supplemental Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with
the terms of the Indenture and this Supplemental Indenture as
though all of such Subsidiary Guarantees had been issued at the
date of the execution hereof.
5. RELEASES.
(a) Concurrently with any sale of assets (including, if applicable,
all of the Capital Stock of a Guaranteeing Subsidiary), all
Liens, if any, in favor of the Trustee in the assets sold thereby
shall be released; provided that in the event of an Asset Sale,
the Net Proceeds from such sale or other disposition are treated
in accordance with the provisions of Section 4.10 of the
Indenture. If the assets sold in such sale or other disposition
include all or substantially all of the assets of a Guaranteeing
Subsidiary or all of the Capital Stock of a Guaranteeing
Subsidiary, then the Guaranteeing Subsidiary (in the event of a
sale or other disposition of all of the Capital Stock of such
Guaranteeing Subsidiary) 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 Guaranteeing Subsidiary) shall be
released from and relieved of its Obligations under this
Supplemental Indenture and its Subsidiary Guarantee made pursuant
hereto; provided that in the event of an Asset Sale, the Net
Proceeds from such sale or other disposition are treated in
accordance with the provisions of Section 4.10 of the Indenture.
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 Guaranteeing Subsidiary, as the case
may be, in accordance with the provisions of the Indenture and
this Supplemental Indenture, including without limitation,
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release of
the Guaranteeing Subsidiary from its Obligations under this
Supplemental Indenture and its Subsidiary Guarantee made pursuant
hereto. If the Guaranteeing Subsidiary is not released from its
obligations under its Subsidiary Guarantee, it shall remain
liable for the full amount
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of principal of and interest on the Notes and for the other
obligations of such Guaranteeing Subsidiary under the Indenture
as provided in this Supplemental Indenture.
(b) Upon the designation of a Guaranteeing Subsidiary as an
Unrestricted Subsidiary in accordance with the terms of the
Indenture, such Guaranteeing Subsidiary shall be released and
relieved of its Obligations under its Subsidiary Guarantee 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 Guaranteeing Subsidiary
as an Unrestricted Subsidiary was made by the Company in
accordance with the provisions of the Indenture, including
without limitation Section 4.07 of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of such Guaranteeing Subsidiary from its
Obligations under its Subsidiary Guarantee. Any Guaranteeing
Subsidiary not released from its Obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of
and interest on the Notes and for the other Obligations of any
Guaranteeing Subsidiary under the Indenture as provided herein.
(c) Each Guaranteeing Subsidiary shall be released and relieved of
its obligations under this Supplemental Indenture in accordance
with, and subject to, Section 4.18 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of any Guaranteeing
Subsidiary, as such, shall have any liability for any Obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Subsidiary 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 SEC that such a waiver is against public policy.
7. SUBORDINATION OF SUBSIDIARY GUARANTEES; ANTI-LAYERING. No Guaranteeing
Subsidiary 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 Guaranteeing Subsidiary and senior in any respect in right
of payment to any of the Subsidiary Guarantees. Notwithstanding the foregoing
sentence, the Subsidiary Guarantee of each Guaranteeing Subsidiary shall be
subordinated to the prior payment in full of all Senior Debt of that
Guaranteeing Subsidiary (in the same manner and to the same extent that the
Notes are subordinated to Senior Debt), 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.
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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 Guaranteeing Subsidiaries and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first above
written.
Dated: February 25, 2004 L-3 COMMUNICATIONS CORPORATION
By:
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Name:
Title:
Dated: February 25, 2004 APCOM, INC., a Maryland corporation
BROADCAST SPORTS INC., a Delaware corporation
ELECTRODYNAMICS, INC., an Arizona 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 AEROMET, INC., an Oregon
corporation
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, a
Delaware limited liability company
L-3 COMMUNICATIONS AIS GP CORPORATION, a Delaware
corporation
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC., a
Delaware corporation
L-3 COMMUNICATIONS AYDIN CORPORATION, a Delaware
corporation
L-3 COMMUNICATIONS CSI, INC., a California
corporation
L-3 COMMUNICATIONS ESSCO, INC., a Delaware
corporation
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION
LLC, a Delaware limited liability company
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC, a Delaware
limited liability company
L-3 COMMUNICATIONS GOVERNMENT SERVICES, INC., a
Virginia corporation
L-3 COMMUNICATIONS ILEX SYSTEMS, INC., a Delaware
corporation
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a
Delaware limited partnership
L-3 COMMUNICATIONS INVESTMENTS INC., a Delaware
corporation
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC., a
Delaware corporation
L-3 COMMUNICATIONS MAS (US) CORPORATION, a
Delaware corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS
CORPORATION CALIFORNIA, a California
corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS
CORPORATION DELAWARE, a Delaware corporation
L-3 COMMUNICATIONS SECURITY SYSTEMS CORPORATION,
a Delaware corporation
L-3 COMMUNICATIONS STORM CONTROL SYSTEMS, INC.,
a California corporation
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION
LLC, a Delaware limited liability company
L-3 COMMUNICATIONS WESTWOOD CORPORATION, a Nevada
corporation
MCTI ACQUISITION CORPORATION, a Maryland
corporation
MICRODYNE COMMUNICATIONS TECHNOLOGIES
INCORPORATED, a Maryland corporation
MICRODYNE CORPORATION, a Maryland corporation
MICRODYNE OUTSOURCING INCORPORATED, a Maryland
corporation
MPRI, INC., a Delaware corporation
PAC ORD INC., a Delaware corporation
POWER PARAGON, INC., a Delaware corporation
SHIP ANALYTICS, INC., a Connecticut corporation
SHIP ANALYTICS INTERNATIONAL, INC., a Delaware
corporation
SHIP ANALYTICS USA, INC., a Connecticut
corporation
SPD ELECTRICAL SYSTEMS, INC., a Delaware
corporation
SPD SWITCHGEAR INC., a Delaware corporation
SYCOLEMAN CORPORATION, a Florida corporation
TROLL TECHNOLOGY CORPORATION, a California
corporation
WESCAM AIR OPS INC., a Delaware corporation
WESCAM AIR OPS LLC, a Delaware limited liability
company
WESCAM HOLDINGS (US) INC., a Delaware corporation
WESCAM INCORPORATED, a Florida corporation
WESCAM LLC, a Delaware limited liability company
WESCAM SONOMA INC., a California corporation
WOLF COACH, INC., a Massachusetts corporation
As Guaranteeing Subsidiaries
By:
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Name:
Title:
Dated: February 25, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By:
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Name:
Title:
