Exhibit 10.63
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 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 June 28, 2002 providing
for the issuance of an aggregate principal amount of up to $750,000,000 of 7
5/8% Senior Subordinated Notes due 2012 (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 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:
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(i) the principal of, premium, interest and Additional
Amounts, 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
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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 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
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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 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
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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 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
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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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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.
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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: March 10, 2005 L-3 COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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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 AVISYS
CORPORATION, a Texas corporation
L-3 COMMUNICATIONS CSI, INC., a California
corporation
L-3 COMMUNICATIONS AYDIN CORPORATION, a Delaware
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
