Exhibit 10.50
L-3 COMMUNICATIONS CORPORATION
CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT
This CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING THE SECOND
AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT (this "AMENDMENT") is dated as of
February 24, 2004 and entered into by and among L-3 COMMUNICATIONS CORPORATION,
a Delaware corporation (the "BORROWER") which is wholly owned by L-3
COMMUNICATIONS HOLDINGS, INC., a Delaware corporation ("HOLDINGS"), the Lenders
party to the Credit Agreement referred to below on the date hereof (the
"LENDERS"), BANK OF AMERICA, N.A. ("BOA"), as administrative agent for the
Agents (as defined below) and the Lenders (in such capacity, the "ADMINISTRATIVE
AGENT"), ▇▇▇▇▇▇ COMMERCIAL PAPER, INC. ("LCPI") as syndication agent and
documentation agent (in such capacity, the "SYNDICATION AGENT" and the
"DOCUMENTATION AGENT") and certain financial institutions named as co-agents.
All capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Syndication Agent, the
Documentation Agent, the Administrative Agent and certain other parties have
entered into the Second Amended and Restated 364 Day Credit Agreement dated as
of May 16, 2001 (as amended, supplemented, restated or otherwise modified from
time to time, the "CREDIT AGREEMENT");
WHEREAS, the Borrower desires that the Lenders consent to an extension
of the Revolving 364 Day Termination Date and provide a limited waiver of
compliance with certain provisions in Subsection 2.5(a) of the Credit Agreement;
and
WHEREAS, the Borrower has requested that certain amendments be made
with respect to the Credit Agreement and certain of the other Credit Documents.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. CONSENTS AND WAIVERS.
1.1 Extension of Revolving 364 Day Termination Date. The Borrower has
requested that each Lender consent to the extension of the Revolving 364 Day
Termination Date for an additional 364 day period commencing on the "Extension
Effective Date" (as defined below) (the "REQUESTED EXTENSION"). The Borrower has
also requested that each Lender waive the requirements in subsection 2.5(a) of
the Credit Agreement that (i) the Borrower's request for the
proposed Requested Extension be made no earlier than 60 days and no later than
55 days prior to the scheduled Revolving 364 Day Termination Date (the "NOTICE
LIMITATION"), (ii) each Lender shall advise the Administrative Agent and the
Borrower whether such Lender consents to the Requested Extension not later than
30 days after receipt of notice of the proposed Requested Extension (the
"RESPONSE PERIOD") and (iii) the Borrower provide the Administrative Agent with
no less than 5 days' prior written notice (the "FIVE DAY PERIOD") of the
Borrower's election to exercise the Extension Option with only those Lenders
constituting Extending Lenders in accordance with subsection 2.5(a) of the
Credit Agreement (the "EXERCISE NOTICE"). Subject to the satisfaction of the
conditions precedent to this Amendment set forth in Section 4 hereof, each
Lender executing this Amendment hereby (i) consents to the Requested Extension
and agrees to waive the Notice Limitation and the Response Period and (ii)
waives the delivery of the Exercise Notice in the Five Day Period, provided that
such Exercise Notice shall be delivered to the Administrative Agent on or prior
to the Extension Effective Date.
SECTION 2. EXTENSION EFFECTIVE DATE ASSIGNMENTS.
2.1 On and as of the Extension Effective Date, each Lender selling
interests of any type under this Section and each of the parties named on the
signature pages hereto as a "Purchasing Lender" which, prior to the Extension
Effective Date was not a Lender under the Credit Agreement (each such new
Lender, a "PURCHASING LENDER") shall sell, assign and transfer, or purchase and
assume, as the case may be, such interests in the Commitments and the Loan
Exposure of the applicable Lenders immediately prior to the Extension Effective
Date, as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Commitments and the Loan Exposure will be held by
the Lenders and the Purchasing Lenders as set forth in Schedule I to this
Amendment.
Each Purchasing Lender purchasing interests of any type under this
Section shall be deemed to have purchased such interests from each Lender
selling interests of such type ratably in accordance with the amounts of such
interests sold by such Lenders as reflected by Schedule I to this Amendment. The
assignments and purchases provided for in this Section shall be without
recourse, warranty or representation, except that each Lender assigning any
interests shall be deemed to have represented that it is the legal and
beneficial owner of the interests assigned by it and that such interests are
free and clear of any adverse claim, and the purchase price for each such
assignment and purchase shall equal the principal amount of the Loans purchased.
All accrued but unpaid interest and fees due and owing thereon through but not
including the Extension Effective Date shall be paid to such Lender by Borrower
on or as of the Extension Effective Date.
2.2 On the Extension Effective Date, each Purchasing Lender that is
purchasing interests in the Loan Exposure and Commitments pursuant to subsection
2.1 above shall pay the purchase price for the interests purchased by it
pursuant to such subsection 2.1 by wire transfer of immediately available funds
to the Administrative Agent not later than 1:00 p.m. (New York time), and (ii)
the Administrative Agent shall pay to each Lender that is assigning interests in
Loan Exposure and Commitments pursuant to subsection 2.1 above, out of the
amounts received by the Administrative Agent from each Purchasing Lender
pursuant to clause (i) of this subsection 2.2, the purchase price for the
interests assigned by it pursuant to such subsection 2.1 by wire transfer of
immediately available funds not later than 3:00 p.m. (New York time).
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2.3 Each of the parties hereto hereby consents to the assignments and
purchases provided for in subsections 2.1 and 2.2 above and effective upon the
Extension Effective Date agrees that (i) each Purchasing Lender that is
purchasing or accepting interests in the Commitments and the Loan Exposure
pursuant to subsection 2.1 above are assignees of certain Lenders permitted
under Section 10.6 of the Credit Agreement, (ii) each Purchasing Lender shall be
a party to the Credit Agreement, (iii) each Purchasing Lender shall have all the
rights and obligations of a Lender under the Credit Agreement and the other
Credit Documents with respect to the interests purchased by it pursuant to such
subsections. If requested by any Purchasing Lender, the Borrower shall execute
and deliver to such Lender (and deliver a copy thereof to the Administrative
Agent) one or more promissory notes evidencing the Loans and Commitments of such
Lender in accordance with subsection 2.5(i) of the Credit Agreement.
2.4 Each Purchasing Lender (i) represents and warrants that it is legally
authorized to enter into this Amendment; (ii) confirms that it has received a
copy of the Credit Agreement together with copies of the financial statements
delivered pursuant to Section 4.1 of the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment; (iii) agrees that it will,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (v) agrees that it will
be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to clause (b) of subsection 2.15 of the Credit Agreement.
SECTION 3. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction
of each of the conditions to effectiveness set forth in Section 6 of this
Amendment, the Borrower and the Requisite Class Lenders party to the Credit
Agreement hereby agree to amend the Credit Agreement as follows:
3.1 Subsection 1.1 of the Credit Agreement is hereby amended by inserting
the following defined terms in the proper alphabetical order:
""Consolidated Senior Debt": all Consolidated Total Debt other than
Subordinated Debt.
"Consolidated Senior Debt Ratio": as of the last day of any period of
four consecutive fiscal quarters, the ratio of (a) Consolidated Senior Debt
on such day to (b) Consolidated EBITDA for such period.
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"Designated Parent Repurchases": shall mean the sum of the Net Proceeds
of the issuance of Permitted Convertible Securities and/or Capital Stock of
Holdings from and after January 1, 2004 which are utilized to repurchase
common stock of Holdings.
"Investments": as defined in subsection 7.9.
"Non-Wholly Owned Subsidiary": any Subsidiary of the Borrower that is
not a Wholly Owned Subsidiary.
"Third Omnibus Amendment Fee Letter": shall mean that certain Third
Omnibus Amendment Fee Letter between the Administrative Agent and the
Borrower dated on or about January 30, 2004."
3.2 The following defined terms in subsection 1.1 of the Credit
Agreement are hereby amended and restated as follows:
""Consolidated EBITDA": as of the last day of any fiscal quarter,
Consolidated Net Income of the Borrower, its Subsidiaries and, without
duplication, the Acquired Businesses (excluding, without duplication, (v)
impairment losses incurred on goodwill and other intangible assets or on
debt or equity investments computed in accordance with Financial Accounting
Standard No. 142 or other GAAP, (w) gains or losses incurred on the
retirement of debt computed in accordance with Financial Accounting
Standard No. 145, (x) extraordinary gains and losses in accordance with
GAAP, (y) gains and losses in connection with asset dispositions whether or
not constituting extraordinary gains and losses and (z) gains or losses on
discontinued operations) for the four fiscal quarters ended on such date,
plus (i) Consolidated Interest Expense of the Borrower and its Subsidiaries
and all Consolidated Interest Expense of Holdings with respect to the
Permitted Convertible Securities guaranteed by the Borrower or its
Subsidiaries and, without duplication, the Acquired Businesses for such
period, plus (ii) to the extent deducted in computing such Consolidated Net
Income of the Borrower or its Subsidiaries and, without duplication, the
Acquired Businesses, the sum of income taxes, depreciation and amortization
for such period. For the purposes of calculating Consolidated EBITDA for
any period of four consecutive fiscal quarters occurring after the AIS
Acquisition (each, a "Reference Period") pursuant to any determination of
the Debt Ratio, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro forma effect to (i) exclude from costs the
positive difference, if any, between (A) the amount of annual corporate
overhead costs attributed to the operations associated with the business
comprising the AIS Acquisition by Raytheon Company prior to such
acquisition by the Borrower and (B) the amount of annual corporate overhead
costs that will be attributed by the Borrower to the operations associated
with the business comprising the AIS Acquisition from and after such
acquisition by the Borrower, (ii) exclude any losses or gains associated
with any contract estimate at completion ("EAC"), unrecoverable inventories
and uncollectable receivables adjustment included in the historical results
of operations associated with the business comprising the AIS Acquisition
within the 12 months prior to the effective date of the AIS Acquisition for
accounting purposes, if such contract EAC, unrecoverable inventories or
uncollectible receivable adjustments pertained to contracts or assets
excluded from the business
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comprising the AIS Acquisition, and (iii) exclude any losses or gains, up
to a maximum amount of $16,000,000, associated with any contract EAC,
unrecoverable inventories and uncollectable receivables adjustment included
in the historical results of operations associated with the Sea Sentinel
contract within the 12 months prior to the effective date of the AIS
Acquisition for accounting purposes; provided, however, that such
adjustments to Consolidated EBITDA are demonstrated by appropriate
footnotes to the audited financial statements of the business comprising
the AIS Acquisition or appropriate schedules and other materials prepared
and certified by the Borrower and delivered to the Administrative Agent no
more than 15 days after the completion of the audit of the financial
statements of the business comprising the AIS Acquisition for the fiscal
year ended prior to the consummation of AIS Acquisition.
"Credit Documents": this Agreement, the Notes, the Applications, the
Guarantees, the Fee Letter, the Lender Fee Letter, the Third Omnibus
Amendment Fee Letter and the Pledge Agreements.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the American
Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or such other principles as may
be approved by a significant segment of the accounting profession in the
United States, that are applicable to the circumstances as of the date of
determination.
"Immaterial Subsidiary": any Subsidiary of the Borrower having assets
not exceeding five percent (5%) of the Consolidated Total Assets; provided,
however, that if any Subsidiary is a Non-Wholly Owned Subsidiary, the
assets of such Subsidiary to be included in the above calculation shall be
reduced by the minority interest for such Subsidiary as reported in the
Borrower's consolidated balance sheet.
"Net Proceeds": the aggregate cash proceeds (including Cash
Equivalents) received by Holdings or any of its Subsidiaries in respect of:
(a) any issuance by Holdings or any of its Subsidiaries of
Indebtedness after the Closing Date and any issuance by Holdings of any
Capital Stock after the Closing Date;
(b) any Asset Sale or other transaction permitted by
subsection 7.5(c); and
(c) any cash payments received in respect of promissory notes
or other evidences of indebtedness delivered to Holdings or such
Subsidiary in respect of an Asset Sale;
in each case net of (without duplication) (i), (A) in the case of an
Asset Sale or other transaction permitted by subsection 7.5(c), the amount
required to repay any Indebtedness (other than the Loans) secured by a Lien
on any assets of Holdings or a Subsidiary of Holdings that are sold or
otherwise disposed of in connection with such Asset Sale or other
transaction permitted by subsection 7.5(c) and (B) reasonable and
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appropriate amounts established by Holdings or such Subsidiary, as the case
may be, as a reserve against liabilities associated with such Asset Sale or
other transaction permitted by subsection 7.5(c) and retained by Holdings
or such Subsidiary, (ii) the reasonable expenses (including legal fees and
brokers' and underwriters' commissions, lenders fees, credit enhancement
fees, accountants' fees, investment banking fees, survey costs, title
insurance premiums and other customary fees, in any case, paid to third
parties or, to the extent permitted hereby, Affiliates) incurred in
effecting such issuance, sale or transaction and (iii) any taxes reasonably
attributable to such sale or transaction and reasonably estimated by
Holdings or such Subsidiary to be actually payable.
"Permitted Stock Payments": (A) dividends by the Borrower to Holdings
in amounts equal to the amounts required for Holdings to (i) pay franchise
taxes and other fees required to maintain its legal existence and (ii)
provide for other operating costs of up to $1,000,000 per fiscal year, (B)
dividends by the Borrower to Holdings in amounts equal to amounts required
for Holdings to pay federal, state and local income taxes to the extent
such income taxes are actually due and owing, provided that the aggregate
amount paid under this clause (B) does not exceed the amount that the
Borrower would be required to pay in respect of the income of the Borrower
and its Subsidiaries if the Borrower were a stand alone entity that was not
owned by Holdings, (C) from and after January 1, 2004, dividends by the
Borrower to Holdings in an aggregate amount not to exceed $25,000,000 in
any fiscal quarter of the Borrower so long as at the time of declaring and
paying any such dividend no Default or Event of Default shall have occurred
and be continuing, (D) dividends by the Borrower to Holdings to fund
interest expense or dividends in respect of the Permitted Convertible
Securities issued by Holdings, provided that such dividends under this
clause (D) shall not, in any fiscal year, exceed an amount equal to the
interest or dividends actually accruing on the outstanding principal amount
of such Permitted Convertible Securities in such fiscal year less the sum
of all intercompany advances funded pursuant to subsection 7.9(l) hereof by
the Borrower to Holdings in respect of such Permitted Convertible
Securities in such fiscal year, (E) from and after January 1, 2004,
dividends by the Borrower to Holdings in an amount not to exceed
$200,000,000 less the Designated Parent Repurchases to permit Holdings to
repurchase common stock of Holdings, so long as such dividends are paid
from the Net Proceeds of the issuance of Additional Subordinated
Indebtedness issued after January 1, 2004 and (F) from and after January 1,
2004, dividends by the Borrower to Holdings in an aggregate amount up to
$10,000,000 in any fiscal year of the Borrower to fund cash payments to
repurchase common stock of Holdings held by any employee, director,
officer, consultant or agent (a "Benefit Plan Beneficiary") of the
Borrower, Holdings or their Subsidiaries pursuant to any restricted stock
plan or to which any such Benefit Plan Beneficiary has a right under any
option plan of the Borrower or Holdings (or to repurchase other common
stock of Holdings held by any such Benefit Plan Beneficiary having a value
not exceeding the amount of the exercise price of an option being exercised
by such Benefit Plan Beneficiary and the amount of the obligations of such
Benefit Plan Beneficiary under the Code with respect to the common stock
underlying such option) in order to enable (i) the Borrower, Holdings or
such Benefit Plan Beneficiary to comply with obligations under the Code,
(ii) the Borrower or Holdings to issue cash to such Benefit Plan
Beneficiary in lieu of fractional shares of
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common stock or (iii) the payment of the exercise price of an option held
by such Benefit Plan Beneficiary."
3.3 Section 1 of the Credit Agreement is hereby amended by (a) deleting the
text appearing in subsection 1.2(b) and inserting "[INTENTIONALLY OMITTED]" in
place thereof and (b) adding a new subsection 1.6 at the end thereof as follows:
"1.6 Accounting Terms.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial covenants,
financial ratios and other financial calculations contained in this
Agreement shall be prepared in conformity with GAAP as in effect from time
to time, applied consistently throughout the periods reflected therein,
except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP after January 1, 2004 would
affect the computation of any financial ratio or requirement set forth in
any Credit Document, and either the Borrower or the Required Lenders shall
so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i)
such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) if a request for such an
amendment has been made, the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required
under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP."
3.4 Subsection 2.1(a)(i) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(i) Revolving 364 Day Loans. Subject to the terms and conditions
hereof, each Revolving 364 Day Lender severally agrees to make revolving
credit loans to the Borrower, from time to time during the Revolving 364
Day Commitment Period, in an aggregate principal amount at any one time
outstanding which, when added to such Lender's Commitment Percentage with
respect to Revolving 364 Day Loans of the then outstanding L/C Obligations,
does not exceed the amount of such Lender's Revolving 364 Day Commitment.
During the Revolving 364 Day Commitment Period, the Borrower may use the
Revolving 364 Day Commitments by borrowing, prepaying the Revolving 364 Day
Loans, in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. At any time not less than thirty (30) days
prior to the "Termination Date" (as defined in the Facility A Credit
Agreement), the Borrower may increase the aggregate Commitments by (I)
entering into a binding written agreement, substantially in the form of
Exhibit G hereto, with any Lender to increase the Commitment of such Lender
(an "Increased Commitment Agreement") which Increased Commitment Agreement
shall be presented to the Agents for acknowledgment and acceptance (which
shall not be withheld unless the effect thereof would be to exceed the
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maximum permitted amount herein for all Commitments, Facility A Commitments
and Facility C Commitments (if Facility C exists) in the aggregate) and/or
(II) subject to the First Offer Requirement (as defined below) enter into a
binding written agreement substantially in the form of Exhibit H hereto (a
"Lender Addition Agreement") with any bank, financial institution, or
Investment Fund to become a Lender under this Agreement by making a
Commitment and causing such Person to take all other actions required to
become a new Lender hereunder (a "New Lender"); provided that the sum of
(i) the aggregate Commitments of all Lenders (including New Lenders), (ii)
the aggregate Facility A Commitments of all Facility A Lenders and (iii)
the aggregate Facility C Commitments (if Facility C exists) of all Facility
C Lenders (if Facility C exists) may not exceed, as of the date all or any
portion of the Indebtedness comprising the Incremental Facility (as defined
below) is incurred, an aggregate amount that would cause the Consolidated
Senior Debt Ratio for the Borrower's most recently ended four full fiscal
quarters for which internal financial statements are available to be
greater than 2.0 to 1.0 (determined on a pro forma basis, assuming for
purposes of this subsection 2.1(a)(i) only, all of the proposed additional
commitments had been incurred at the beginning of such four-quarter period
and all Commitments of all Lenders, all Facility A Commitments of all
Facility A Lenders and all Facility C Commitments (if Facility C exists) of
all Facility C Lenders (if Facility C exists) that are outstanding
immediately prior to giving effect to the incurrence of such proposed
additional commitments have been drawn in full, but taking into account any
payment or prepayment of any Term Loans or term loans under Facility C (if
Facility C exists)) (such new or increased commitments, the "Incremental
Facility"); and provided, further that, no consent of any Lender shall be
required for such Incremental Facility except for the consents described
under clauses (I) and (II) above. In order to become a New Lender, a party
must execute a Lender Addition Agreement and deliver the same to the
Administrative Agent, the Syndication Agent and the Borrower for
counter-execution. On the Eurodollar Loans Maturity Date (or, subject to
compliance with subsection 2.16, on any Business Day) occurring on or
immediately following the date that (i) the Agents have acknowledged their
acceptance of any Increased Commitment Agreement delivered pursuant to
clause (I) above or (ii) any Lender Addition Agreement has been executed by
all necessary parties and delivered to the Agents, the increase in any such
Lender's Commitment contemplated thereby shall become effective and/or the
New Lender shall become a party to this Agreement, as applicable. Promptly
thereafter, the Administrative Agent shall amend Schedule I hereto to
accurately reflect the Commitments of the Lenders then in existence,
whereupon such amended Schedule I shall be substituted for the pre-existing
Schedule I, be deemed a part of this Agreement without any further action
or consent of any party and be promptly distributed to each Lender and the
Borrower by the Administrative Agent. The Incremental Facility shall have
such economic terms (i.e., pricing, amount, tenor, amortization) as shall
be agreed at the time with the lenders participating therein, and shall,
otherwise, be on the same terms as this Agreement; provided that without
the written consent of Required Class Lenders for each Class, (i) the
applicable interest rate margin under the Incremental Facility shall not
exceed the Applicable Margin under this Agreement or the "Applicable
Margin" under and as defined in the Facility A Credit Agreement by more
than fifty basis points and (ii) the maturity date of the Incremental
Facility shall be equal to or occurring after the scheduled Termination
Date under this
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Agreement or the "Termination Date" under and as defined in the Facility A
Credit Agreement; provided, further, that if the Borrower chooses to
implement the Incremental Facility pursuant to clause (I) or (II) above,
the Incremental Facility shall have the same economic terms (i.e. pricing,
tenor, amortization) as this Agreement. In the alternative, without the
consent of any Lender, Borrower may cause the Incremental Facility to be
implemented and separately documented as Facility C, which shall have BOA
as the administrative agent and provide for a ratable sharing of all
Collateral and Guarantee Obligations under the Guarantees among and between
the Lenders, the Facility A Lenders and the Facility C Lenders. In any
case, the Administrative Agent shall have the right to execute, on behalf
of the Lenders, any amendments and/or other documents necessary to
implement the Incremental Facility; provided that such amendments and/or
other documents do not affect any of the rights or obligations of any
Lender for which the written consent of such Lender is necessary under
subsection 10.1 unless the written consent of such Lender is received by
the Administrative Agent. When the Incremental Facility is not implemented
and separately documented as Facility C, the Borrower shall send the
Administrative Agent (for distribution to each Lender) a written offer to
participate in the Incremental Facility pursuant to clause (I) above, and
each such Lender shall have the right, but no obligation, to commit to a
ratable portion of the Incremental Facility, provided that no later than
fourteen (14) days after receipt of such written request, each such Lender
shall advise the Administrative Agent and the Borrower whether it intends
to participate in the Incremental Facility and the amount of its proposed
commitment (the "First Offer Requirement"). Only after satisfying the First
Offer Requirement and allocating requested commitments to Lenders
requesting participation in such Incremental Facility shall Borrower be
permitted to offer participation in any remaining commitments for the
Incremental Facility to any proposed New Lender pursuant to clause (II)
above."
3.5 Subsection 2.12(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) Each borrowing by the Borrower from the Revolving 364 Day Lenders
hereunder, each payment by the Borrower on account of any commitment fee
hereunder and any reduction of the Revolving 364 Day Commitments of
Revolving 364 Day Lenders shall be made pro rata according to the
respective Commitment Percentages of the Revolving 364 Day Lenders. Except
during any period in which an Event of Default has occurred and is
continuing, each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Term Loans and/or the Revolving
364 Day Loans, and any application by the Administrative Agent of the
proceeds of any Collateral, shall be made pro rata according to the
respective outstanding principal amounts of such Loans then held by the
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder in respect of any Loan, whether on account of principal,
interest, Reimbursement Obligations (whether in respect of Domestic L/Cs or
Foreign L/Cs), fees, expenses or otherwise, shall be made without set off
or counterclaim and shall be made prior to 11:00 A.M., New York City time,
on the due date thereof to the Administrative Agent, for the account of the
Lenders with respect to such Loans, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available
funds; provided, that with respect to any
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Reimbursement Obligations of the Borrower arising from the presentment to
the Issuing Lender of a draft under a Foreign L/C, the Borrower may make
payment in the applicable Alternative Currency if such payment is received
by the Issuing Lender on the date such draft is paid by the Issuing Lender.
At any time that an Event of Default has occurred and is continuing,
all payments (including prepayments) made by the Borrower hereunder and any
application by the Administrative Agent of the proceeds of any Collateral
and/or payment under any Guarantee shall be applied in the following order:
(1) to the ratable payment of all amounts due and owing by the Borrower
pursuant to subsection 10.5 of this Agreement, subsection 10.5 of the
Facility A Credit Agreement or subsection 10.5 of the Facility C Credit
Agreement (if Facility C exists) to the Agents, the Facility A Agents
and/or the Facility C Agents (if Facility C exists) and, after payment in
full thereof, to any other Lender, Facility A Lender or Facility C Lender
(if Facility C exists); (2) to the ratable payment of all interest, fees
and commissions due and owing under this Agreement, the Facility A Credit
Agreement or the Facility C Credit Agreement (if Facility C exists) or to
the Agents, the Facility A Agents, the Facility C Agents (if Facility C
exists), the Swing Line Lender, any Lender, any Facility A Lender or any
Facility C Lender (if Facility C exists); and (3) to the ratable payment
(or cash collateralization) of all other obligations of the Borrower to the
Agents, the Facility A Agents, the Facility C Agents (if Facility C
exists), the Swing Line Lender, any Lender, any Facility A Lender or any
Facility C Lender (if Facility C exists) under any Credit Document,
Facility A Credit Document, Facility C Credit Document (if Facility C
exists) or Interest Rate Agreement with any Lender, any Facility A Lender
or any Facility C Lender (if Facility C exists), including, without
limitation the aggregate outstanding principal amount of Loans, Facility A
Loans and Facility C Loans (if Facility C exists), the aggregate L/C
Obligations, Facility A L/C Obligations and Facility C L/C Obligations (if
Facility C exists) and the aggregate outstanding amount of Interest Rate
Agreement Obligations to any Lender, any Facility A Lender and any Facility
C Lender (if Facility C exists). For purposes of applying payments and
proceeds distributed under clause 3 above, each Lender will first apply
such amounts to all outstanding Loans and Interest Rate Agreement
Obligations then due and owing to such Lender before such amounts will be
held as cash collateral for L/C Obligations in which such Lender is a L/C
Participant.
The Administrative Agent, the Facility A Administrative Agent and the
Facility C Administrative Agent (if Facility C exists) shall ratably
distribute such payments to the applicable Lenders, the Facility A Lenders
and the Facility C Lenders (if Facility C exists) promptly upon receipt in
like funds as received. If any payment hereunder becomes due and payable on
a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension."
3.6 Subsection 6.10(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
10
"(b) With respect to any Person that, subsequent to the Original
Closing Date, becomes a direct or indirect Subsidiary of the Borrower,
promptly (and in any event within 30 days after such Person becomes a
Subsidiary): (i) cause such new Subsidiary to become a party to the
Subsidiary Guarantee and, to the extent such Subsidiary holds any Capital
Stock of any Subsidiary that is not an Immaterial Subsidiary, to the
Subsidiary Pledge Agreement and (ii) if requested by the Administrative
Agent or the Required Lenders, deliver to the Administrative Agent legal
opinions relating to the matters described in clause (i) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent. Notwithstanding the
foregoing, no Immaterial Subsidiary, Foreign Subsidiary, Non-Wholly Owned
Subsidiary or TCAS Subsidiary (except as provided below) of the Borrower or
its Subsidiaries shall be required to execute a Subsidiary Guarantee or
Subsidiary Pledge Agreement, and no more than 65% of the total combined
voting power of the Capital Stock of or equity interests in (A) any direct
or indirect Foreign Subsidiary of the Borrower or (B) any direct or
indirect Subsidiary of the Borrower if more than 65% of the assets of such
Subsidiary are securities of foreign companies (such determination to be
made on the basis of fair market value), and no Subsidiary of any Person
described in clause (A) or (B), shall be required to be pledged hereunder;
provided, that if, after the consummation of any sale of a portion of
Capital Stock of the TCAS Subsidiary, the TCAS Subsidiary thereafter
becomes a Wholly Owned Subsidiary, then the TCAS Subsidiary shall become a
party to the Subsidiary Guarantee and Subsidiary Pledge Agreement and the
Borrower shall promptly (and in any event within 30 days after such event
occurs) comply with the requirements of this subsection 6.10(b) with
respect to the TCAS Subsidiary; provided, further, that if any Non-Wholly
Owned Subsidiary thereafter becomes a Wholly Owned Subsidiary, then such
Subsidiary shall become a party to the Subsidiary Guarantee and Subsidiary
Pledge Agreement and Borrower shall promptly (and in any event within 30
days after such event occurs) comply with the requirements of this
subsection 6.10(b) with respect to such Subsidiary; provided, further, that
if the Borrower shall be required to cause any Immaterial Subsidiary
(including, without limitation, any Immaterial Subsidiary which is also a
Non-Wholly Owned Subsidiary) to become bound by any guarantee of
Indebtedness for borrowed money in respect of any Subordinated Indebtedness
or Indebtedness incurred pursuant to subsection 7.2(d), the Borrower shall
cause such Subsidiary to execute a Subsidiary Guarantee and cause the same
to be delivered to the Administrative Agent promptly (and in any event
within 30 days after such event occurs); provided, further, that no
Guarantee Obligation of any Immaterial Subsidiary in effect at the time
such Subsidiary becomes a Subsidiary of the Borrower shall trigger a
requirement that the Borrower cause such Subsidiary to execute and deliver
a Subsidiary Guarantee pursuant to the immediately preceding proviso unless
the Borrower is required, by virtue of such Guarantee Obligation, to cause
such Subsidiary to become bound by a guarantee of Indebtedness for borrowed
money in respect of any Subordinated Indebtedness. Notwithstanding anything
to the contrary contained in this Agreement, the Borrower shall cause at
all times Subsidiaries that, together with the Borrower, comprise not less
than seventy-five percent (75%) of Consolidated Total Assets to be party to
the Subsidiary Guarantee; provided that for purposes of determining
compliance with this requirement, the value of Capital Stock of any
Subsidiary shall be deemed excluded; provided, further,
11
that if any Subsidiary is a Non-Wholly Owned Subsidiary, the assets of such
Subsidiary to be included in the above calculation shall be reduced by the
minority interest for such Subsidiary as reported in the Borrower's
consolidated balance sheet."
3.7 Subsection 7.1(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) Debt Ratio. Permit the Debt Ratio at the last day of any fiscal
quarter to be greater than the ratio set forth below opposite the date on
which such fiscal quarter ends:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2003 4.25
December 31, 2003 4.25
March 31, 2004 4.25
June 30, 2004 4.25
September 30, 2004 4.00
December 31, 2004 4.00
March 31, 2005 4.00
June 30, 2005 4.00
September 30, 2005 and thereafter 3.50"
3.8 Subsection 7.1 of the Credit Agreement is hereby amended and restated
in its entirety by inserting a new subclause (c) therein as follows:
"(c) Consolidated Senior Debt Ratio. Permit the Consolidated Senior
Debt Ratio at the last day of the fiscal quarter ending December 31, 2003
and each fiscal quarter ending thereafter to be greater than 2.50 to 1.00."
3.9 Subsection 7.2(b) of the Credit Agreement is hereby amended and
restated to read as follows:
"(b) Indebtedness of the Borrower incurred to finance the acquisition
of fixed or capital assets (whether pursuant to a loan, a Financing Lease
or otherwise) in an aggregate principal amount not exceeding $50,000,000 at
any time outstanding, and refundings or refinancings thereof, provided that
no such refunding or refinancing shall shorten the maturity or increase the
principal amount of the original Indebtedness;"
3.10 Subsection 7.2(c) of the Credit Agreement is hereby amended and
restated to read as follows:
"(c) Indebtedness assumed in connection with any Investment permitted
pursuant to subsection 7.9(k) hereof, and refundings or refinancings
thereof, provided that no such refunding or refinancing shall shorten the
maturity or increase the principal amount of the original Indebtedness;"
12
3.11 Subsection 7.2(d) of the Credit Agreement is hereby amended and
restated to read as follows:
"(d) additional Indebtedness of the Borrower and/or its Subsidiaries
not constituting Subordinated Debt (of which up to $100,000,000 may be
secured by Liens permitted pursuant to subsection 7.3(i) hereof) so long as
(i) on the date such additional Indebtedness is incurred no Default or
Event of Default shall have occurred and be continuing or would occur as a
consequence thereof, (ii) the Consolidated Senior Debt Ratio for the
Borrower's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which
such additional Indebtedness is incurred (assuming for purposes of this
subsection 7.2(d) only, all Commitments of all Lenders, all Facility A
Commitments of all Facility A Lenders and all Facility C Commitments (if
Facility C exists) of Facility C Lenders (if Facility C exists) have been
drawn in full, but taking into account any payment or prepayment of any
Term Loans or term loans under Facility C (if Facility C exists)) would
have been no greater than 2.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the Net Proceeds therefrom) as if the
additional Indebtedness had been incurred at the beginning of such
four-quarter period and (iii) not later than two (2) Business Days after
the incurrence of such Indebtedness the Administrative Agent shall have a
received certificate of a Responsible Officer setting forth, in reasonable
detail, the pro forma computation of the Consolidated Senior Debt Ratio
required to determine compliance with this subsection 7.2(d) and certifying
the satisfaction of the conditions in this subsection 7.2(d) to the
incurrence of such Indebtedness;"
3.12 Subsection 7.2(i) of the Credit Agreement is hereby amended and
restated to read as follows:
"(i) Indebtedness secured by Permitted Liens, and refundings or
refinancings thereof, provided that no such refunding or refinancing shall
shorten the maturity or increase the principal amount of the original
Indebtedness;"
3.13 Subsection 7.3(i) of the Credit Agreement is hereby amended and
restated to read as follows:
"(i) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to the Borrower and all Subsidiaries) $100,000,000 in
aggregate amount at any time outstanding;"
3.14 Subsection 7.4(b) of the Credit Agreement is hereby amended and
restated to read as follows:
"(b) Guarantee Obligations of Holdings, Borrower or its Subsidiaries
incurred after the date hereof in respect of an aggregate amount of
obligations (together with obligations permitted to be guaranteed under
subsection 7.4(i)) not to exceed $100,000,000 at any one time outstanding;"
13
3.15 Subsection 7.4(c) of the Credit Agreement is hereby amended and
restated to read as follows:
"(c) Guarantee Obligations of Holdings, Borrower or any Subsidiary in
respect of any Subordinated Debt and refundings and refinancings thereof,
provided such Guarantee Obligations are subordinated to the Obligations on
terms no less favorable to the Lenders, Facility A Lenders and Facility C
Lenders (if Facility C exists) than those governing the Subordinated Debt
and no such refunding or refinancing shortens the maturity of the original
Indebtedness;"
3.16 Subsection 7.4 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of subsection (g) thereof, (ii)
deleting the period "." at the end of subsection (h) thereof and inserting ";
and" in place thereof and (iii) adding the following as subsection (i) thereto:
"(i) Guarantee Obligations of any Subsidiary in effect at the time such
Subsidiary was acquired through an Investment permitted pursuant to
subsection 7.9(i) hereof in respect of an aggregate amount of obligations
(together with obligations permitted to be guaranteed under subsection
7.4(b)) not to exceed $100,000,000 at any one time outstanding, and
extensions, renewals and replacements thereof; provided, however, that no
such extension, renewal or replacement shall shorten the fixed maturity or
increase the principal amount of the Indebtedness guaranteed by the
original guarantee."
3.17 Subsection 7.5 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of subsection (a) thereof, (ii)
deleting the period "." at the end of subsection (b) thereof and inserting ";
and" in place thereof and (iii) adding the following as subsection (c) thereto:
"(c) Borrower or any Subsidiary of Borrower may convey, sell, lease,
assign, transfer or otherwise dispose of the Capital Stock of any
Subsidiary or any Subsidiary may enter into any merger, consolidation or
amalgamation or convey, sell, lease, assign, transfer or otherwise dispose
of, all or substantially all of its property, business or assets; provided
that the Net Proceeds thereof shall be applied pursuant to subsection
2.6(b)(ii)."
3.18 Subsection 7.6(j) of the Credit Agreement is hereby amended and
restated to read as follows:
"(j) the conveyance, sale, assignment or contribution to any new
Subsidiary of the Borrower or any existing Subsidiary of the Borrower of
assets of the Borrower or any Subsidiary of the Borrower provided, that if
such Subsidiary to which the assets are conveyed, sold, assigned or
contributed is not a party to a Subsidiary Guarantee, such assets shall not
exceed five percent (5%) of the Consolidated Total Assets;"
3.19 Subsection 7.9(k) of the Credit Agreement is hereby amended and
restated to read as follows:
14
"(k) (i) Investments in the form of advances, loans or other extensions
of credit to any Person (other than Borrower or any of its Subsidiaries)
that is engaged in a Similar Business, so long as the aggregate outstanding
amount of loans, advances or other extensions of credit made pursuant to
this subsection 7.9(k) do not exceed an amount equal to five percent (5%)
of the Consolidated Total Assets; and (ii) Investments made to acquire (A)
all or any portion of the Capital Stock, or all or any portion of the
assets, of any Person (other than the Borrower or any of its Subsidiaries)
that is engaged in a Similar Business, or (B) all or substantially all of
the assets of any division of any Person (other than the Borrower or any of
its Subsidiaries) that is engaged in a Similar Business; provided, that (I)
if such Investment is an acquisition of a majority of the Voting Stock of
any Person, such Person's board of directors or similar governing body
shall have approved such acquisition and (II) at the time of each such
Investment described above in clauses (i) and (ii) (both before and after
giving effect to such Investment), there shall exist no Default or Event of
Default; provided, further, that in connection with each individual, or
series of related, Investments made pursuant to this subsection 7.9(k)
exceeding $50,000,000, the Borrower shall deliver to the Administrative
Agent, not later than two (2) Business Days after the consummation of such
Investment or Investments, a certificate of a Responsible Officer that
certifies that no Default or Event of Default has occurred and is
continuing or will be caused as a result of consummating such proposed
Investment;"
3.20 Subsection 7.11(a) of the Credit Agreement is hereby amended and
restated to read as follows:
"(a) Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any
service, with any Affiliate (other than the Borrower or any Wholly Owned
Subsidiary which is a party to the Subsidiary Guarantee) unless such
transaction is (i) otherwise permitted under this Agreement and (ii) upon
fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate."
SECTION 4. Omnibus Amendment to CERTAIN CReDIT documents. Subject to
the satisfaction of each of the conditions to effectiveness set forth in Section
6 of this Amendment, the Borrower and the Requisite Class Lenders party to the
Credit Agreement hereby agree to amend the Credit Documents referenced below as
follows:
4.1 The definition of "Permitted Parent Distributions" in Section 1.1(b) of
the Parent Guarantee is hereby amended and restated to read as follows:
""Permitted Parent Distributions": (a) the issuance by Holdings of
options or other equity securities of Holdings to outside directors,
members of management or employees of Holdings in the ordinary course of
business, (b) cash payments made in lieu of issuing fractional shares of
Holdings' common stock or preferred stock, (c) from and after January 1,
2004, Parent Distributions funded solely with the proceeds of dividends
received from the Borrower pursuant to clause (C) of the definition of
Permitted Stock Payments in the Credit Agreements so long as at the time of
declaring and paying any
15
such Parent Distribution no Default or Event of Default shall have occurred
and be continuing (the "Clause (C) Dividends"), (d) the application of up
to $2,000,000 of the proceeds of the sale of common stock of Holdings to
the repurchase of common stock of Holdings from management of Holdings or
the Borrower, (e) from and after January 1, 2004, cash payments to
repurchase common stock of Holdings solely with proceeds of (i) Clause (C)
Dividends, (ii) dividends received from the Borrower pursuant to clause (E)
of the definition of Permitted Stock Payments in the Credit Agreement (the
"Clause (E) Dividends") and (iii) Net Proceeds of the issuance of Capital
Stock of Holdings and/or Permitted Convertible Securities issued after
January 1, 2004; provided, however, that the cash payments to repurchase
common stock of Holdings deriving from Clause (E) Dividends, issuances of
Capital Stock of Holdings and/or issuances of Permitted Convertible
Securities shall not exceed $200,000,000 in the aggregate from and after
January 1, 2004 and (f) from and after January 1, 2004, cash payments in an
aggregate amount up to $10,000,000 in any fiscal year of the Borrower to
repurchase common stock of Holdings held by any employee, director,
officer, consultant or agent (a "Benefit Plan Beneficiary") of the
Borrower, Holdings or their Subsidiaries pursuant to any restricted stock
plan or to which any such Benefit Plan Beneficiary has a right under any
option plan of the Borrower or Holdings (or to repurchase other common
stock of Holdings held by any such Benefit Plan Beneficiary having a value
not exceeding the amount of the exercise price of an option being exercised
by such Benefit Plan Beneficiary and the amount of the obligations of such
Benefit Plan Beneficiary under the Code with respect to the common stock
underlying such option) in order to enable (i) the Borrower, Holdings or
such Benefit Plan Beneficiary to comply with obligations under the Code,
(ii) the Borrower or Holdings to issue cash to such Benefit Plan
Beneficiary in lieu of fractional shares of common stock or (iii) the
payment of the exercise price of an option held by such Benefit Plan
Beneficiary."
4.2 Section 4.2 of the Parent Guarantee is hereby amended by inserting
"(c)," after the reference to "Subsection 7.4(b),".
4.3 Name Changes. The table below sets forth the new name of each
Subsidiary whose name has changed. Each of the Borrower Pledge Agreement
(including, without limitation, Schedules 1 and 2 thereto), the Subsidiary
Guarantee Agreement and the Subsidiary Pledge Agreement (including, without
limitation, Schedules 1 and 2 thereto) is hereby amended by deleting each
reference to the names listed in the "Old Name" column below in such document
and substituting therefor the corresponding name in the "New Name" column.
Old Name New Name
▇▇▇▇▇▇▇▇ Avionics Systems, Inc. L-3 Communications Avionics Systems, Inc.
▇▇▇▇▇▇▇▇ Aerospace Component L-3 Communications Avionics
Overhaul & Repair, Inc. Component Overhaul and Repair, Inc.
16
▇▇▇▇▇▇▇▇ FlightSystems, Inc. L-3 Communications FlightSystems
Corporation
Atlantic Science and Technology L-3 Communications Atlantic Science and
Corporation Technology Corporation
▇▇▇▇▇▇▇ Research Corporation SYColeman Corporation
EER Systems, Inc. L-3 Communications Government
Services, Inc.
Celerity Systems Incorporated L-3 Communications CSI, Inc.
L-3 Communications AeroTech LLC L-3 Communications Vertex Aerospace LLC
4.4 Dissolutions. The Borrower hereby represents and warrants to the
Administrative Agent and Lenders that:
(a) Telos Corporation ("Telos"), formerly a party to the Subsidiary
Guarantee Agreement and the Subsidiary Pledge Agreement, was merged into
L-3 Communications ILEX Systems, Inc. ("L-3 ILEX") on August 8, 2003 in a
transaction permitted under the Credit Agreements, that L-3 ILEX was the
surviving corporation in the merger and that Telos ceased to exist as a
result of the merger;
(b) L-3 Communications Analytics Corporation ("L-3 Analytics"),
formerly a party to the Subsidiary Guarantee Agreement and the Subsidiary
Pledge Agreement, was merged into L-3 Communications Government Services,
Inc. ("L-3 GSI") on September 26, 2003 in a transaction permitted under the
Credit Agreements, that L-3 GSI was the surviving corporation in the merger
and that L-3 Analytics ceased to exist as a result of the merger;
(c) AMI Instruments, Inc., formerly a party to the Subsidiary Guarantee
Agreement and the Subsidiary Pledge Agreement, was merged into the Borrower
on November 21, 2003 in a transaction permitted under the Credit Agreements
and ceased to exist as a result of the merger;
(d) SPD Holdings, Inc., formerly a party to the Subsidiary Guarantee
Agreement and the Subsidiary Pledge Agreement, was merged into L-3
Communications SPD Technologies, Inc. on November 21, 2003 in a transaction
permitted under the Credit Agreements, L-3 Communications SPD Technologies,
Inc. was the surviving corporation in the merger and SPD Holdings, Inc.
ceased to exist as a result of the merger;
(e) L-3 Communications SPD Technologies, Inc., formerly a party to the
Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement, was
merged into
17
the Borrower on November 21, 2003 in a transaction permitted under the
Credit Agreements and ceased to exist as a result of the merger;
(f) Southern California Microwave, Inc., formerly a party to the
Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement, was
merged into the Borrower on November 21, 2003 in a transaction permitted
under the Credit Agreements and ceased to exist as a result of the merger;
(g) L-3 Communications Avionics Component Overhaul and Repair, Inc.,
formerly a party to the Subsidiary Guarantee Agreement and the Subsidiary
Pledge Agreement, was merged into L-3 Communications Avionics Systems, Inc.
on November 21, 2003 in a transaction permitted under the Credit
Agreements, L-3 Communications Avionics Systems, Inc. was the surviving
corporation in the merger and L-3 Communications Avionics Component
Overhaul and Repair, Inc. ceased to exist as a result of the merger;
(h) L-3 Communications FlightSystems Corporation, formerly a party to
the Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement, was
merged into L-3 Communications Avionics Systems, Inc. on November 21, 2003
in a transaction permitted under the Credit Agreements, L-3 Communications
Avionics Systems, Inc. was the surviving corporation in the merger and L-3
Communications FlightSystems Corporation ceased to exist as a result of the
merger;
(i) ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Corporation, formerly a party to the
Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement, was
merged into L-3 Communications Government Services, Inc. on December 31,
2003 in a transaction permitted under the Credit Agreements, L-3
Communications Government Services, Inc. was the surviving corporation in
the merger and ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Corporation ceased to exist as a
result of the merger;
(j) L-3 Communications TMA Corporation, formerly a party to the
Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement, was
merged into L-3 Communications Government Services, Inc. on December 31,
2003 in a transaction permitted under the Credit Agreements, L-3
Communications Government Services, Inc. was the surviving corporation in
the merger and L-3 Communications TMA Corporation ceased to exist as a
result of the merger;
(k) L-3 Communications Atlantic Science and Technology Corporation,
formerly a party to the Subsidiary Guarantee Agreement and the Subsidiary
Pledge Agreement, was merged into L-3 Communications ILEX Systems, Inc. on
December 31, 2003 in a transaction permitted under the Credit Agreements,
L-3 Communications ILEX Systems, Inc. was the surviving corporation in the
merger and L-3 Communications Atlantic Science and Technology Corporation
ceased to exist as a result of the merger; and
(l) L-3 Communications DBS Microwave, Inc., formerly a party to the
Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement, was
merged into
18
the Borrower on April 27, 2002 in a transaction permitted under the Credit
Agreements and ceased to exist as a result of the merger.
The parties to this Amendment accordingly agree that each reference in the
Borrower Pledge Agreement (including, without limitation, Schedules 1 and 2
thereto), the Subsidiary Guarantee Agreement and the Subsidiary Pledge Agreement
(including, without limitation, Schedules 1 and 2 thereto) to Telos Corporation,
L-3 Communications Analytics Corporation, AMI Instruments, Inc., SPD Holdings,
Inc., L-3 Communications SPD Technologies, Inc., Southern California Microwave,
Inc., L-3 Communications Avionics Component Overhaul and Repair, Inc., L-3
Communications FlightSystems Corporation, ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇-▇ Communications TMA Corporation, L-3 Communications Atlantic Science and
Technology Corporation and L-3 Communications DBS Microwave, Inc. is hereby
deleted.
4.5 Schedules. To more fully reflect the foregoing amendments described in
Sections 4.3 and 4.4 of this Amendment, Schedule 1 to the Borrower Pledge
Agreement is hereby amended and restated to read as provided on Schedule B-1
attached hereto and Schedules 1 and 2 to the Subsidiary Pledge Agreement are
hereby amended and restated to read as provided on Schedules S-1 and S-2
attached hereto.
SECTION 5. CONDITIONS TO EFFECTIVENESS OF SECTIONS 1 AND 2. The
provisions of Sections 1 and 2 of this Amendment shall be deemed effective on
February 24, 2004 provided that each of the following conditions have been
satisfied (such effective date occurring upon satisfaction of such conditions
being referred to herein as the "EXTENSION EFFECTIVE DATE"):
5.1 The Borrower shall have delivered to Administrative Agent executed
copies of this Amendment and each of the other Credit Parties shall have
delivered to the Administrative Agent executed copies of the Guarantors' Consent
and Acknowledgment to this Amendment in the form attached hereto; provided that
if not all of the Lenders shall have complied with the condition set forth in
Section 5.2 below, the Borrower shall have provided the Administrative Agent
with the Exercise Notice;
5.2 The Required Lenders, each of which shall be an Extending Lender, shall
have delivered to the Administrative Agent an executed original or facsimile of
a counterpart of this Amendment;
5.3 The Administrative Agent shall have received a secretary's or assistant
secretary's certificate of the Borrower certifying board resolutions authorizing
the execution, delivery and performance of this Amendment by the Borrower; and
5.4 The representations and warranties contained in Section 7 hereof shall
be true and correct in all respects.
SECTION 6. CONDITIONS TO EFFECTIVENESS OF SECTIONS 3 AND 4. The
provisions of Sections 3 and 4 of this Amendment shall be deemed effective as of
the date when each of the following conditions have been satisfied (such
effective date occurring upon satisfaction of such conditions being referred to
herein as the "AMENDMENT EFFECTIVE DATE"):
19
6.1 The Borrower shall have delivered to Administrative Agent executed
copies of this Amendment and each of the other Credit Parties shall have
delivered to the Administrative Agent executed copies of the Guarantors' Consent
and Acknowledgment to this Amendment in the form attached hereto;
6.2 The Requisite Class Lenders party to the Credit Agreement shall have
delivered to the Administrative Agent an executed original or facsimile
counterpart of its signature page to this Amendment;
6.3 The Administrative Agent shall have received a secretary's or assistant
secretary's certificate of the Borrower certifying board resolutions authorizing
the execution, delivery and performance of this Amendment by the Borrower;
6.4 The representations and warranties contained in Section 7 hereof shall
be true and correct in all respects; and
6.5 All conditions to effectiveness set forth in Sections 3.1, 3.2, 3.3,
and 3.4 in the Third Omnibus Amendment Regarding Third Amended and Restated
Credit Agreement of even date herewith shall have been satisfied.
SECTION 7. REPRESENTATIONS AND WARRANTIES. In order to induce Lenders
to enter into this Amendment, the Borrower represents and warrants to each
Lender that the following statements are true, correct and complete:
7.1 Authorization and Enforceability. (a) The Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as modified by this Amendment (the "AGREEMENT"), (b) the execution and
delivery of this Amendment has been duly authorized by all necessary corporate
action on the part of the Borrower and (c) this Amendment and the Agreement have
been duly executed and delivered by the Borrower and, when executed and
delivered, will be the legally valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally, (ii) general equitable principles (whether considered in a
proceeding, in equity or at law) and (iii) an implied covenant of good faith and
fair dealing.
7.2 Incorporation of Representations and Warranties From Credit Agreement.
The representations and warranties contained in Section 4 of the Credit
Agreement, after giving effect to the consents, waivers and amendments contained
in Sections 1, 2, 3 and 4 of this Amendment, are and will be true, correct and
complete in all material respects on and as of each of the Extension Effective
Date and the Amendment Effective Date, to the same extent as though made on and
as of such date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
7.3 Absence of Default and Setoff. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that constitutes a Default or an Event of Default and no defense,
setoff or counterclaim of any kind, nature or
20
description exists to the payment and performance of the obligations owing by
the Borrower to the Agents and the Lenders.
SECTION 8. MISCELLANEOUS.
8.1 Effect on the Credit Agreement and the other Credit Documents. Except
as specifically provided in this Amendment, the Credit Agreement and the other
Credit Documents shall remain in full force and effect and are hereby ratified
and confirmed. The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of the Administrative
Agent or any Lender under, the Credit Agreement or any of the other Credit
Documents.
8.2 Fees and Expenses. The Borrower acknowledges that all costs, fees and
expenses as described in Section 10.5 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Borrower.
8.3 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.4 SUBMISSION TO JURISDICTION; WAIVERS; WAIVER OF JURY TRIAL;
ACKNOWLEDGMENTS; CONFIDENTIALITY. Each of the terms and conditions set forth in
Sections 10.12, 10.13, 10.14 and 10.15 of the Credit Agreement are hereby
incorporated into this Amendment as if set forth fully herein except that each
reference to "Agreement" therein shall be deemed to be a reference to
"Amendment" herein.
8.5 Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Except for the terms of Sections 1 and 2 hereof (which shall only become
effective on the Extension Effective Date) and Sections 3 and 4 hereof (which
shall only become effective on the Amendment Effective Date), this Amendment
shall become effective upon the execution of a counterpart hereof by the
Borrower and the Required Lenders and receipt by the Borrower and the
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
8.6 Amendment Fee. Subject to the occurrence of the Amendment Effective
Date, the Borrower hereby agrees to pay to each Lender consenting to the
Requested Extension and the waiver of the Notice Limitation and submitting to
the Administrative Agent an executed counterpart to this Amendment on or before
February 19, 2004 (each such Lender, a "CONSENTING LENDER") a non-refundable fee
(the "AMENDMENT FEE") in the amount set forth in the Third Omnibus Amendment Fee
Letter regarding this Amendment, which Amendment Fee will be based and payable
on that portion of such Consenting Lender's Commitment which is subject to the
Requested Extension. The Amendment Fee owing to each Consenting Lender shall be
paid
21
in immediately available funds by the Borrower to the Administrative Agent for
the benefit of such Consenting Lenders not later than noon (New York time) on
the first Business Day following the occurrence of the Amendment Effective Date.
[SIGNATURE PAGES FOLLOW]
22
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
L-3 COMMUNICATIONS CORPORATION
By:
------------------------------------------
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender
By:
------------------------------------------
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Documentation Agent, Syndication
Agent and as a Lender
By:
------------------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
Guarantors' Acknowledgment and Consent
Each of the undersigned hereby acknowledges receipt of the attached
Amendment and consents to the execution and performance thereof by L-3
Communications Corporation. Each of the undersigned hereby also reaffirms that
the guarantee and any applicable Pledge Agreement of such undersigned in favor
of the Administrative Agent for the ratable benefit of the Lenders and the
Agents remains in full force and effect and acknowledges and agrees that there
is no defense, setoff or counterclaim of any kind, nature or description to
obligations arising under such guarantee or any applicable Pledge Agreement.
Dated as of February 24, 2004
L-3 COMMUNICATIONS HOLDINGS, INC.
By:
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P.
By: L-3 COMMUNICATIONS AIS GP CORPORATION,
as General Partner
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Secretary
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL
AVIATION LLC
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC
L-3 COMMUNICATIONS VECTOR INTERNATIONAL
AVIATION LLC
WESCAM LLC
WESCAM AIR OPS LLC
By:
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Person
[SIGNATURE PAGES TO GUARANTORS' ACKNOWLEDGMENT AND CONSENT TO CONSENT, WAIVER
AND THIRD OMNIBUS AMENDMENT REGARDING SECOND AMENDED
AND RESTATED 364 DAY CREDIT AGREEMENT]
APCOM, INC.
BROADCAST SPORTS INC.
ELECTRODYNAMICS, INC.
▇▇▇▇▇▇▇▇, INC.
HYGIENETICS ENVIRONMENTAL SERVICES, INC.
INTERSTATE ELECTRONICS CORPORATION
KDI PRECISION PRODUCTS, INC.
L-3 COMMUNICATIONS AEROMET, INC.
L-3 COMMUNICATIONS AIS GP CORPORATION
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC.
L-3 COMMUNICATIONS AYDIN CORPORATION
L-3 COMMUNICATIONS CSI, INC.
L-3 COMMUNICATIONS ESSCO, INC.
L-3 COMMUNICATIONS GOVERNMENT SERVICES, INC.
L-3 COMMUNICATIONS ILEX SYSTEMS, INC.
L-3 COMMUNICATIONS INVESTMENTS INC.
L-3 COMMUNICATIONS ▇▇▇▇▇ ASSOCIATES, INC.
L-3 COMMUNICATIONS MAS (US) CORPORATION
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS
CORPORATION CALIFORNIA
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS
CORPORATION DELAWARE
L-3 COMMUNICATIONS SECURITY SYSTEMS CORPORATION
L-3 COMMUNICATIONS STORM CONTROL SYSTEMS, INC.
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.
SPD ELECTRICAL SYSTEMS, INC.
SPD SWITCHGEAR, INC.
SYCOLEMAN CORPORATION
TROLL TECHNOLOGY CORPORATION
WESCAM SONOMA INC.
WESCAM AIR OPS INC.
WESCAM INCORPORATED
WESCAM HOLDINGS (US) INC.
WOLF COACH, INC.
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Secretary
[SIGNATURE PAGES TO GUARANTORS' ACKNOWLEDGMENT AND CONSENT TO CONSENT, WAIVER
AND THIRD OMNIBUS AMENDMENT REGARDING SECOND AMENDED
AND RESTATED 364 DAY CREDIT AGREEMENT]
THE BANK OF NEW YORK
By:
--------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
BANK ONE, N.A. (Main Office Chicago)
By:
---------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
FLEET NATIONAL BANK
By:
---------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
WACHOVIA BANK NATIONAL ASSOCIATION
(f/k/a First Union Commercial
Corporation)
By:
---------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
HSBC BANK USA
By:
---------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
THE GOVERNOR AND COMPANY OF THE BANK
OF IRELAND
By:
---------------------------------
Title:
By:
---------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND SECOND OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
COMERICA BANK
By:
--------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND SECOND OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
CREDIT INDUSTRIEL ET COMMERCIAL
By:
--------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND SECOND OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
BARCLAYS BANK PLC
By:
--------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND SECOND OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
SOCIETE GENERALE
By:
-------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND SECOND OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
SUNTRUST BANK
By:
-------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
▇▇▇▇▇▇▇ BANK
By:
-------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA
By:
-------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
CREDIT SUISSE FIRST BOSTON
By:
-------------------------------
Title:
[SIGNATURE PAGES TO CONSENT, WAIVER AND THIRD OMNIBUS AMENDMENT REGARDING
SECOND AMENDED AND RESTATED 364 DAY CREDIT AGREEMENT]
PURCHASING LENDERS:
MIZUHO CORPORATE BANK, LTD.
(successor to The Fuji Bank,
Limited, The Dai-Ichi Kanho Bank,
Ltd. and The Industrial Bank of
Japan, Limited)
By:
-------------------------------
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
-------------------------------
Title:
KEY BANK NATIONAL ASSOCIATION
By:
-------------------------------
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By:
-------------------------------
Title:
FORTIS CAPITAL CORP.
By:
-------------------------------
Title:
FORTIS CAPITAL CORP.
By:
-------------------------------
Title:
[Signature pages to Second Amendment to
Second Amended and Restated 364 Day Credit Agreement]
SCHEDULE B-1*
[SEE ATTACHED AMENDED SCHEDULE 1 TO BORROWER PLEDGE AGREEMENT]
-------------------
* BORROWER TO PROVIDE NEW SCHEDULE
SCHEDULE S-1
[SEE ATTACHED AMENDED SCHEDULE 1 TO SUBSIDIARY PLEDGE AGREEMENT]*
-------------------
* BORROWER TO PROVIDE NEW SCHEDULE
SCHED. ▇-▇ - ▇
▇▇▇▇▇▇▇▇ ▇-▇
[SEE ATTACHED AMENDED SCHEDULE 2 TO SUBSIDIARY PLEDGE AGREEMENT]*
-------------------
* BORROWER TO PROVIDE NEW SCHEDULE
SCHED. S-2 - 1