EXHIBIT 10.56
SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY GUARANTEEING SUBSIDIARIES
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
March 10, 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, 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 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, L-3 Communications IMC 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 December 11, 1998
providing for the issuance of an
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aggregate principal amount of up to $300,000,000 of 8% Senior Subordinated Notes
due 2008 (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 4.13 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) Each 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 and interest 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 and interest 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
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(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 each 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, each 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, each 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
absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with
respect to any provisions of the Notes or the
Indenture, the recovery of any judgment against the
Company, any action to enforce the same or any
other
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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 the
Holders or the Trustee under the Subsidiary
Guarantee made pursuant to this Supplemental
Indenture.
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4. GUARANTEEING SUBSIDIARIES 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 such 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 such 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 Subsidiary, 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 punctual performance of all of the
covenants and conditions of the Indenture and this
Supplemental Indenture to be performed by
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each 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 of
principal of and interest on the Notes and for the
other
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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.
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 Commission 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.
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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 Guaranteeing Subsidiaries and the
Company.
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: March 10, 2003 L-3 COMMUNICATIONS CORPORATION
By: /s/ Christopher C. Cambria
------------------------------------
Name:
Title:
Dated: March 10, 2003 AMI INSTRUMENTS, INC.
APCOM, INC.
BROADCAST SPORTS INC.
CELERITY SYSTEMS INCORPORATED
EER SYSTEMS, INC.
ELECTRODYNAMICS, INC.
HENSCHEL 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.
L-3 COMMUNICATIONS IMC 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.
SHIP ANALYTICS INTERNATIONAL, INC.
SHIP ANALYTICS USA, INC.
SOUTHERN CALIFORNIA MICROWAVE, INC.
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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/ Christopher C. Cambria
-------------------------------------
Name:
Title:
Dated: March 10, 2003 THE BANK OF NEW YORK,
as Trustee
By: /s/ Kisha A. Holder
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Name: Kisha A. Holder
Title: Assistant Treasurer