Exhibit 10.65
SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
Supplemental Indenture (this "Supplemental Indenture"), dated as of
March 10, 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, premium, interest and Additional Amounts, if
any, on the
1
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
2
absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(f) Each Guaranteeing Subsidiary hereby waives diligence,
presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its
Subsidiary Guarantee made pursuant to this Supplemental
Indenture will not be discharged except by complete performance
of the Obligations contained in the Notes and the Indenture.
(g) If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Guaranteeing
Subsidiary, or any custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or
such Guaranteeing Subsidiary, any amount paid by either to the
Trustee or such Holder, the Subsidiary Guarantee made pursuant
to this Supplemental Indenture, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(h) Each Guaranteeing Subsidiary agrees that it shall not be
entitled to any right of subrogation in relation to the Holders
in respect of any Obligations guaranteed hereby until payment in
full of all Obligations guaranteed hereby. Each Guaranteeing
Subsidiary further agrees that, as between such Guaranteeing
Subsidiary, on the one hand, and the Holders and the Trustee, on
the other hand:
3
(i) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for
the purposes of the Subsidiary Guarantee made pursuant to
this Supplemental Indenture, notwithstanding any stay,
injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed
hereby; and
(ii) in the event of any declaration of acceleration of such
Obligations as provided in Article 6 of the Indenture, such
Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guaranteeing
Subsidiary for the purpose of the Subsidiary Guarantee made
pursuant to this Supplemental Indenture.
(i) Each Guaranteeing Subsidiary shall have the right to seek
contribution from any other non-paying Guaranteeing Subsidiary
so long as the exercise of such right does not impair the rights
of the Holders or the Trustee under the Subsidiary Guarantee
made pursuant to this Supplemental Indenture.
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
4
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 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
5
event of a sale or other disposition of all or substantially all
of the assets of such Guaranteeing Subsidiary) shall be
released from and relieved of its Obligations under this
Supplemental Indenture and its Subsidiary Guarantee made
pursuant hereto; provided that in the event of an Asset Sale,
the Net Proceeds from such sale or other disposition are treated
in accordance with the provisions of Section 4.10 of the
Indenture. Upon delivery by the Company to the Trustee of an
Officers' Certificate to the effect that such sale or other
disposition was made by the Company or the Guaranteeing
Subsidiary, as the case may be, in accordance with the
provisions of the Indenture and this Supplemental Indenture,
including without limitation, Section 4.10 of the Indenture, the
Trustee shall execute any documents reasonably required in order
to evidence the release of the Guaranteeing Subsidiary from its
Obligations under this Supplemental Indenture and its Subsidiary
Guarantee made pursuant hereto. If the Guaranteeing Subsidiary
is not released from its obligations under its Subsidiary
Guarantee, it shall remain liable for the full amount of
principal of and interest on the Notes and for the other
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
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.
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.
7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
Dated: March 10, 2005 L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President, Secretary
and General Counsel
Dated: March 10, 2005 APCOM, INC., a Maryland corporation
BROADCAST SPORTS INC., a Delaware corporation
D.P. ASSOCIATES INC., a Virginia corporation
ELECTRODYNAMICS, INC., an Arizona corporation
XXXXXXXX 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 ELECTRON TECHNOLOGIES, INC., a
Delaware corporation
L-3 COMMUNICATIONS ESSCO, INC., a Delaware corporation
L-3 COMMUNICATIONS FLIGHT INTERNATIONAL AVIATION LLC,
a Delaware limited liability company
L-3 COMMUNICATIONS FLIGHT CAPITAL LLC, a Delaware
limited liability company
L-3 COMMUNICATIONS GOVERNMENT SERVICES, INC., a
Virginia corporation
L-3 COMMUNICATIONS ILEX SYSTEMS, INC., a Delaware
corporation
L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P., a Delaware
limited partnership
L-3 COMMUNICATIONS INVESTMENTS INC., a Delaware
corporation
L-3 COMMUNICATIONS XXXXX ASSOCIATES, INC., a Delaware
corporation
L-3 COMMUNICATIONS XXXXX INVESTMENTS, LLC, a Delaware
limited liability company
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: /s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Secretary
Dated: March 10, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
