Exhibit 10.94
SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
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 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 "Guaranteeing Subsidiary", and collectively, the
"Guaranteeing Subsidiaries"), each a subsidiary of L-3 Communications
Corporation (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 June 28, 2002 providing for
the issuance of an
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aggregate principal amount of up to $750,000,000 of 7 5/8% Senior Subordinated
Notes due 2012 (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 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:
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(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 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
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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 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
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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 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 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
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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 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
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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 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
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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.
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 and attested, all as of the date first above
written.
Dated: May 5, 2003 L-3 COMMUNICATIONS CORPORATION
By:/s/ Xxxxxxxxxxx X. Xxxxxxx
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Name:
Title:
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 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.
POWER PARAGON, INC.
SHIP ANALYTICS, INC.
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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
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Name:
Title:
Dated: May 5, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name:
Title:
