Exhibit 10.68
SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTEEING SUBSIDIARIES
Supplemental Indenture (this "Supplemental Indenture"), dated as of
May 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 November 12, 2004
providing for the issuance of an unlimited amount of 5 7/8% Senior Subordinated
Notes due 2015 (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:
12. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
13. 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
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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.
14. 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
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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:
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(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.
15. 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
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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.
16. 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
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event of a sale or other disposition of all of the
Capital Stock of such Guaranteeing Subsidiary) or the
Person acquiring the property (in the event of a sale
or other disposition of all or substantially all of
the assets of such Guaranteeing Subsidiary) shall be
released from and relieved of its Obligations under
this Supplemental Indenture and its Subsidiary
Guarantee made pursuant hereto; provided that in the
event of an Asset Sale, the Net Proceeds from such
sale or other disposition are treated in accordance
with the provisions of Section 4.10 of the Indenture.
Upon delivery by the Company to the Trustee of an
Officers' Certificate to the effect that such sale or
other disposition was made by the Company or the
Guaranteeing Subsidiary, as the case may be, in
accordance with the provisions of the Indenture and
this Supplemental Indenture, including without
limitation, Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in
order to evidence the release of the Guaranteeing
Subsidiary from its Obligations under this
Supplemental Indenture and its Subsidiary Guarantee
made pursuant hereto. If the Guaranteeing Subsidiary
is not released from its obligations under its
Subsidiary Guarantee, it shall remain liable for the
full amount of principal of and interest on the Notes
and for the other 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.
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17. 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.
18. 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.
19. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
20. 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.
21. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
22. 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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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first above
written.
Dated: May 10, 2005 L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President, Secretary
and General Counsel
Dated: May 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 INFRAREDVISION TECHNOLOGY
CORPORATION, a California 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 MOBILE-VISION, INC.,
a New Jersey corporation
L-3 COMMUNICATIONS SECURITY AND DETECTION SYSTEMS,
INC., a Delaware corporation
L-3 COMMUNICATIONS SONOMA EO, 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: May 10, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
