EXHIBIT 10.58
SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY GUARANTORS
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 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 "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
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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 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.
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 HOLDINGS, INC.
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 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.
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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/ Christopher C. Cambria
----------------------------------------
Name:
Title:
Dated: March 10, 2003 THE BANK OF NEW YORK,
as Trustee
By: /s/ Kisha A. Holder
-----------------------------------
Name: Kisha A. Holder
Title: Assistant Treasurer