Exhibit 10.58
SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of May
5, 2003, among AMI Instruments, Inc., an Oklahoma corporation, Apcom, Inc., a
Maryland corporation, Broadcast Sports Inc., a Delaware corporation, Celerity
Systems Incorporated, a California corporation, EER Systems, Inc., a Virginia
corporation, Electrodynamics, Inc., an Arizona corporation, Xxxxxxxx Aerospace
Component Overhaul & Repair, Inc., a Delaware corporation, Xxxxxxxx Avionics
Systems, Inc., a Delaware corporation, Xxxxxxxx FlightSystems, Inc., 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 California corporation, L-3
Communications Analytics Corporation, a California 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 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
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, Telos
Corporation, a California corporation, Troll Technology Corporation, a
California corporation, Wescam Air Ops Inc., a Delaware corporation, Wescam Air
Ops LLC, a Delaware limited liability company, Wescam Holdings (US) Inc., a
Delaware corporation, Wescam Incorporated, a Florida corporation, Wescam LLC, a
Delaware limited liability company, Wescam Sonoma Inc., a California corporation
and Wolf Coach, Inc., a Massachusetts corporation (each, a "Guarantor", and
collectively, the "Guarantors"), each a 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 October 24, 2001 providing for
the issuance of an
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aggregate principal amount of up to $420,000,000 of 4.00% Senior Subordinated
Convertible Contingent Debt Securities (CODES) due 2011 (the "Securities");
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 Securities 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 Securities 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 Securities (collectively, the
"Guaranteeing Subsidiaries" and each, a "Guaranteeing
Subsidiary"), unconditionally guarantees to each Holder of a
Security 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 Securities
or the Obligations of the Company under the Indenture or the
Securities, that:
(i) the principal of, premium, interest (including
Contingent Interest, if any) and Additional Amounts, if
any, on the Securities 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 (including Contingent
Interest, if any) and Additional Amounts, if any, on the
Securities, 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
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(ii) in case of any extension of time for payment or renewal
of any Securities 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, substantially in the form included as Exhibit
B to the Indenture, shall be endorsed by an Officer of such
Guarantor on each Security 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 Security 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 Security on which a
Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
(d) The delivery of any Security 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 Securities or the
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with
respect to any provisions of the Securities 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
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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
Securities 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 Securities shall prevent (a) any
consolidation or merger of any
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Guarantor with or into the Company or any 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 Securities 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 Securities 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
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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 Securities
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.
5. 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 (including Contingent Interest, if any) and
Additional Amounts, if any, on the Securities and for the
other obligations of such Guarantor under the Indenture as
provided herein.
(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
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subsequently amended, waived, modified or terminated or
expire and whether or not any of those Securities 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 expire and whether or not any of those
Securities 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 Securities
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 Securities, 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 Securities by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the Securities and Exchange 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 (in the same manner and to the same extent that the Securities
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.
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.
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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.
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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: May 5, 2003 L-3 COMMUNICATIONS HOLDINGS, INC.
By:/s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
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Dated: May 5, 2003 AMI INSTRUMENTS, INC.
APCOM, INC.
BROADCAST SPORTS INC.
CELERITY SYSTEMS INCORPORATED
EER SYSTEMS, INC.
ELECTRODYNAMICS, INC.
XXXXXXXX AEROSPACE COMPONENT OVERHAUL & REPAIR, INC.
XXXXXXXX AVIONICS SYSTEMS, INC.
XXXXXXXX FLIGHTSYSTEMS, INC.
XXXXXXXX INC.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
INTERSTATE ELECTRONICS CORPORATION
KDI PRECISION PRODUCTS, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS ANALYTICS 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 ILEX SYSTEMS, INC.
X-0 XXXXXXXXXXXXXX XXX CORPORATION
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P.
L-3 COMMUNICATIONS INVESTMENTS, 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
MICRODYNE COMMUNICATIONS TECHNOLOGIES INCORPORATED
MICRODYNE CORPORATION
MICRODYNE OUTSOURCING INCORPORATED
MPRI, INC.
PAC ORD INC.
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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
TELOS 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:/s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Name:
Title:
12
Dated: May 5, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By:/s/ Xxxxx X. Xxxxxx
-------------------------
Name:
Title:
