EXHIBIT 10.94
SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
Supplemental Indenture (this "Supplemental Indenture"), dated as of August
5, 2004, among L-3 Communications Corporation (or its permitted successor), a
Delaware corporation (the "Company"), each 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
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 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:
(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, all as of the date first above written.
Dated: August 5, 2004 L-3 COMMUNICATIONS CORPORATION
By: /s/ Christopher C. Cambria
----------------------------------------
Name: Christopher C. Cambria
Title: Senior Vice President, Secretary
and General Counsel
Dated: August 5, 2004 APCOM, INC., a Maryland corporation
BROADCAST SPORTS INC., a Delaware corporation
ELECTRODYNAMICS, INC., an Arizona corporation
HENSCHEL 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 AVISYS CORPORATION, a Texas
corporation
L-3 COMMUNICATIONS CSI, INC., a California
corporation
L-3 COMMUNICATIONS AYDIN CORPORATION, a Delaware
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 KLEIN ASSOCIATES, INC., a
Delaware corporation
L-3 COMMUNICATIONS MAS (US) CORPORATION, a
Delaware corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS,
INC., a Delaware corporation
L-3 COMMUNICATIONS SECURITY SYSTEMS CORPORATION, a
Delaware corporation
L-3 COMMUNICATIONS STORM CONTROL SYSTEMS, INC., a
California corporation
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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: /s/ Christopher C. Cambria
--------------------------
Name: Christopher C. Cambria
Title: Vice President, Secretary
Dated: August 5, 2004 THE BANK OF NEW YORK,
as Trustee
By: /s/ Robert A. Massimillo
------------------------
Name: Robert A. Massimillo
Title: Vice President
