EXHIBIT 10.58
SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
February 25, 2004, among L-3 Communications Holdings, Inc. (or its permitted
successor), a Delaware corporation (the "Company"), each subsidiary of the
Company signatory hereto (each, a "Guarantor", and collectively, the
"Guarantors"), 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 October 24, 2001 providing for the
issuance of an 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
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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
(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
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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 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
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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
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
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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 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
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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 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.
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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.
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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 HOLDINGS, INC.
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 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:
