Exhibit 10.65
SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
Supplemental Indenture (this "Supplemental Indenture"), dated as of January
14, 2005, among L-3 Communications Corporation (or its permitted successor), a
Delaware corporation (the "Company"), each a direct or indirect subsidiary of
the Company signatory hereto (each, a "Guaranteeing Subsidiary", and
collectively, the "Guaranteeing Subsidiaries"), and The Bank of New York, as
trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of December 22, 2003 providing
for the issuance of an unlimited amount of 6 1/8% Senior Subordinated Notes due
2014 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances
the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company's Obligations (as defined in the
Indenture) under the Notes and the Indenture on the terms and conditions set
forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby
agrees as follows:
(a) Such Guaranteeing Subsidiary, jointly and severally with all
other current and future guarantors of the Notes
(collectively, the "Guarantors" and each, a "Guarantor"),
unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, regardless of the
validity and enforceability of the Indenture, the Notes or
the Obligations of the Company under the Indenture or the
Notes, that:
(i) the principal of, premium, interest and Additional
Interest, if any, on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of,
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premium, interest and Additional Amounts, if any, on
the Notes, to the extent lawful, and all other
Obligations of the Company to the Holders or the
Trustee thereunder or under the Indenture will be
promptly paid in full, all in accordance with the terms
thereof; and
(ii) in case of any extension of time for payment or renewal
of any Notes or any of such other Obligations, that the
same will be promptly paid in full when due in
accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or
otherwise.
(b) Notwithstanding the foregoing, in the event that this
Subsidiary Guarantee would constitute or result in a
violation of any applicable fraudulent conveyance or similar
law of any relevant jurisdiction, the liability of such
Guaranteeing Subsidiary under this Supplemental Indenture
and its Subsidiary Guarantee shall be reduced to the maximum
amount permissible under such fraudulent conveyance or
similar law.
3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
(a) To evidence its Subsidiary Guarantee set forth in this
Supplemental Indenture, such Guaranteeing Subsidiary hereby
agrees that a notation of such Subsidiary Guarantee
substantially in the form of Exhibit F to the Indenture
shall be endorsed by an officer of such Guaranteeing
Subsidiary on each Note authenticated and delivered by the
Trustee after the date hereof.
(b) Notwithstanding the foregoing, such Guaranteeing Subsidiary
hereby agrees that its Subsidiary Guarantee set forth herein
shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such
Subsidiary Guarantee.
(c) If an Officer whose signature is on this Supplemental
Indenture or on the Subsidiary Guarantee no longer holds
that office at the time the Trustee authenticates the Note
on which a Subsidiary Guarantee is endorsed, the Subsidiary
Guarantee shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute
due delivery of the Subsidiary Guarantee set forth in this
Supplemental Indenture on behalf of each Guaranteeing
Subsidiary.
(e) Each Guaranteeing Subsidiary hereby agrees that its
Obligations hereunder shall be unconditional, regardless of
the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any action to enforce the
same, any waiver or consent
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by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(f) Each Guaranteeing Subsidiary hereby waives diligence,
presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and
covenants that its Subsidiary Guarantee made pursuant to
this Supplemental Indenture will not be discharged except by
complete performance of the Obligations contained in the
Notes and the Indenture.
(g) If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Guaranteeing
Subsidiary, or any custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or
such Guaranteeing Subsidiary, any amount paid by either to
the Trustee or such Holder, the Subsidiary Guarantee made
pursuant to this Supplemental Indenture, to the extent
theretofore discharged, shall be reinstated in full force
and effect.
(h) Each Guaranteeing Subsidiary agrees that it shall not be
entitled to any right of subrogation in relation to the
Holders in respect of any Obligations guaranteed hereby
until payment in full of all Obligations guaranteed hereby.
Each Guaranteeing Subsidiary further agrees that, as between
such Guaranteeing Subsidiary, on the one hand, and the
Holders and the Trustee, on the other hand:
(i) the maturity of the Obligations guaranteed hereby may
be accelerated as provided in Article 6 of the
Indenture for the purposes of the Subsidiary Guarantee
made pursuant to this Supplemental Indenture,
notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of
the Obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of such
Obligations as provided in Article 6 of the Indenture,
such Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guaranteeing
Subsidiary for the purpose of the Subsidiary Guarantee
made pursuant to this Supplemental Indenture.
(i) Each Guaranteeing Subsidiary shall have the right to seek
contribution from any other non-paying Guaranteeing
Subsidiary so long as the exercise of such right does not
impair the rights of
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the Holders or the Trustee under the Subsidiary Guarantee
made pursuant to this Supplemental Indenture.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 of the Indenture,
nothing contained in the Indenture, this Supplemental
Indenture or in the Notes shall prevent any consolidation or
merger of any Guaranteeing Subsidiary with or into the
Company or any other Guarantor or shall prevent any
transfer, sale or conveyance of the property of any
Guaranteeing Subsidiary as an entirety or substantially as
an entirety, to the Company or any other Guarantor.
(b) Except as set forth in Article 4 and 5 of the Indenture,
nothing contained in the Indenture, this Supplemental
Indenture or in the Notes shall prevent any consolidation or
merger of any Guaranteeing Subsidiary with or into a
corporation or corporations other than the Company or any
other Guarantor (in each case, whether or not affiliated
with the Guaranteeing Subsidiary), or successive
consolidations or mergers in which a Guaranteeing Subsidiary
or its successor or successors shall be a party or parties,
or shall prevent any sale or conveyance of the property of
any Guaranteeing Subsidiary as an entirety or substantially
as an entirety, to a corporation other than the Company or
any other Guarantor (in each case, whether or not affiliated
with the Guaranteeing Subsidiary) authorized to acquire and
operate the same; provided, however, that each Guaranteeing
Subsidiary hereby covenants and agrees that (i) subject to
the Indenture, upon any such consolidation, merger, sale or
conveyance, the due and punctual performance and observance
of all of the covenants and conditions of the Indenture and
this Supplemental Indenture to be performed by such
Guaranteeing Subsidiaries, shall be expressly assumed (in
the event that such Guaranteeing Subsidiary is not the
surviving corporation in the merger), by supplemental
indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the corporation formed by such
consolidation, or into which such Guaranteeing Subsidiary
shall have been merged, or by the corporation which shall
have acquired such property and (ii) immediately after
giving effect to such consolidation, merger, sale or
conveyance no Default or Event of Default exists.
(c) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor
corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture and the due and
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punctual performance of all of the covenants and conditions
of the Indenture and this Supplemental Indenture to be
performed by such Guaranteeing Subsidiary, such successor
corporation shall succeed to and be substituted for such
Guaranteeing Subsidiary with the same effect as if it had
been named herein as the Guaranteeing Subsidiary. Such
successor corporation thereupon may cause to be signed any
or all of the Subsidiary Guarantees to be endorsed upon the
Notes issuable under the Indenture which theretofore shall
not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued shall in
all respects have the same legal rank and benefit under the
Indenture and this Supplemental Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture and this Supplemental
Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
5. RELEASES.
(a) Concurrently with any sale of assets (including, if
applicable, all of the Capital Stock of a Guaranteeing
Subsidiary), all Liens, if any, in favor of the Trustee in
the assets sold thereby shall be released; provided that in
the event of an Asset Sale, the Net Proceeds from such sale
or other disposition are treated in accordance with the
provisions of Section 4.10 of the Indenture. If the assets
sold in such sale or other disposition include all or
substantially all of the assets of a Guaranteeing Subsidiary
or all of the Capital Stock of a Guaranteeing Subsidiary,
then the Guaranteeing Subsidiary (in the event of a sale or
other disposition of all of the Capital Stock of such
Guaranteeing Subsidiary) or the Person acquiring the
property (in the event of a sale or other disposition of all
or substantially all of the assets of such Guaranteeing
Subsidiary) shall be released from and relieved of its
Obligations under this Supplemental Indenture and its
Subsidiary Guarantee made pursuant hereto; provided that in
the event of an Asset Sale, the Net Proceeds from such sale
or other disposition are treated in accordance with the
provisions of Section 4.10 of the Indenture. Upon delivery
by the Company to the Trustee of an Officers' Certificate to
the effect that such sale or other disposition was made by
the Company or the Guaranteeing Subsidiary, as the case may
be, in accordance with the provisions of the Indenture and
this Supplemental Indenture, including without limitation,
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the
release of the Guaranteeing Subsidiary from its Obligations
under this Supplemental Indenture and its Subsidiary
Guarantee made pursuant hereto. If the Guaranteeing
Subsidiary is not released from its obligations under its
Subsidiary Guarantee, it shall remain liable for the full
amount
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of principal of and interest on the Notes and for the other
obligations of such Guaranteeing Subsidiary under the
Indenture as provided in this Supplemental Indenture.
(b) Upon the designation of a Guaranteeing Subsidiary as an
Unrestricted Subsidiary in accordance with the terms of the
Indenture, such Guaranteeing Subsidiary shall be released
and relieved of its Obligations under its Subsidiary
Guarantee and this Supplemental Indenture. Upon delivery by
the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such designation of
such Guaranteeing Subsidiary as an Unrestricted Subsidiary
was made by the Company in accordance with the provisions of
the Indenture, including without limitation Section 4.07 of
the Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of such
Guaranteeing Subsidiary from its Obligations under its
Subsidiary Guarantee. Any Guaranteeing Subsidiary not
released from its Obligations under its Subsidiary Guarantee
shall remain liable for the full amount of principal of and
interest on the Notes and for the other Obligations of any
Guaranteeing Subsidiary under the Indenture as provided
herein.
(c) Each Guaranteeing Subsidiary shall be released and relieved
of its obligations under this Supplemental Indenture in
accordance with, and subject to, Section 4.18 of the
Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of any Guaranteeing
Subsidiary, as such, shall have any liability for any Obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Subsidiary Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such Obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
7. SUBORDINATION OF SUBSIDIARY GUARANTEES; ANTI-LAYERING. No
Guaranteeing Subsidiary shall incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt of a Guaranteeing Subsidiary and senior in
any respect in right of payment to any of the Subsidiary Guarantees.
Notwithstanding the foregoing sentence, the Subsidiary Guarantee of each
Guaranteeing Subsidiary shall be subordinated to the prior payment in full of
all Senior Debt of that Guaranteeing Subsidiary (in the same manner and to the
same extent that the Notes are subordinated to Senior Debt), which shall include
all guarantees of Senior Debt.
8. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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9. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Company.
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Exhibit 10.65
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first above
written.
Dated: January 14, 2005 L-3 COMMUNICATIONS CORPORATION
By: ______________________________________
Name:
Title:
Exhibit 10.65
Dated: January 14, 2005 APCOM, INC., a Maryland corporation
BROADCAST SPORTS INC., a Delaware corporation
D.P. ASSOCIATES 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 AEROMET, INC., an Oregon
corporation
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, a
Delaware limited liability company
L-3 COMMUNICATIONS AIS GP CORPORATION, a
Delaware corporation
L-3 COMMUNICATIONS AVIONICS SYSTEMS, INC., a
Delaware corporation
L-3 COMMUNICATIONS AVYSIS CORPORATION, a Texas
corporation
L-3 COMMUNICATIONS AYDIN CORPORATION, a Delaware
corporation
L-3 COMMUNICATIONS CSI, INC., a California
corporation
L-3 COMMUNICATIONS CE HOLDINGS, INC., a Delaware
corporation
L-3 COMMUNICATIONS CINCINNATI ELECTRONICS
CORPORATION, an Ohio corporation
L-3 COMMUNICATIONS ESSCO, INC., a Delaware
corporation
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION
LLC, a Delaware limited liability company
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC, a
Delaware limited liability company
L-3 COMMUNICATIONS GOVERNMENT SERVICES, INC., a
Virginia corporation
L-3 COMMUNICATIONS ILEX SYSTEMS, INC., a
Delaware corporation
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a
Delaware limited partnership
L-3 COMMUNICATIONS INVESTMENTS INC., a Delaware
corporation
L-3 COMMUNICATIONS KLEIN ASSOCIATES, INC., a
Delaware corporation
L-3 COMMUNICATIONS MAS (US) CORPORATION, a
Delaware corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION
SYSTEMS, INC., a Delaware corporation
L-3 COMMUNICATIONS STORM CONTROL SYSTEMS, INC.,
a California corporation
L-3 COMMUNICATIONS VECTOR INTERNATIONAL AVIATION
LLC, a Delaware limited liability company
L-3 COMMUNICATIONS WESTWOOD CORPORATION, a
Nevada corporation
MCTI ACQUISITION CORPORATION, a Maryland
corporation
MICRODYNE COMMUNICATIONS TECHNOLOGIES
INCORPORATED, a Maryland corporation
MICRODYNE CORPORATION, a Maryland corporation
MICRODYNE OUTSOURCING INCORPORATED, a Maryland
corporation
MPRI, INC., a Delaware corporation
PAC ORD INC., a Delaware corporation
POWER PARAGON, INC., a Delaware corporation
SHIP ANALYTICS, INC., a Connecticut corporation
SHIP ANALYTICS INTERNATIONAL, INC., a Delaware
corporation
SHIP ANALYTICS USA, INC., a Connecticut
corporation
SPD ELECTRICAL SYSTEMS, INC., a Delaware
corporation
SPD SWITCHGEAR INC., a Delaware corporation
SYCOLEMAN CORPORATION, a Florida corporation
TROLL TECHNOLOGY CORPORATION, a California
corporation
WESCAM AIR OPS INC., a Delaware corporation
WESCAM AIR OPS LLC, a Delaware limited liability
company
WESCAM HOLDINGS (US) INC., a Delaware
corporation
WESCAM INCORPORATED, a Florida corporation
WESCAM LLC, a Delaware limited liability company
WESCAM SONOMA INC., a California corporation
WOLF COACH, INC., a Massachusetts corporation
As Guaranteeing Subsidiaries
By: ______________________________________
Name:
Title:
Exhibit 10.65
Dated: January 14, 2005 THE BANK OF NEW YORK,
as Trustee
By: ________________________________
Name:
Title:
