Exhibit 10.68
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 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:
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 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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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:
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Name:
Title:
Exhibit 10.68
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
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 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 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:
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Name:
Title:
Exhibit 10.68
Dated: January 14, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By:
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Name:
Title:
