Exhibit 10.4
NOTE PURCHASE AND SETTLEMENT AGREEMENT
This NOTE PURCHASE AND SETTLEMENT AGREEMENT (this "Agreement"),
dated as of October 10, 2004 by and among TRW AUTOMOTIVE INTERMEDIATE HOLDINGS
CORP., a Delaware corporation (including any successor thereto, "Purchaser"),
TRW AUTOMOTIVE HOLDINGS CORP., a Delaware corporation (including any successor
thereto, "TRW"), AUTOMOTIVE INVESTORS L.L.C., a Delaware limited liability
company (together with any successor thereto and any permitted transferee
thereof, "AI LLC"), NORTHROP GRUMMAN CORPORATION, a Delaware corporation
(together with any successor thereto and any permitted transferee thereof,
"Northrop Grumman"), and NORTHROP GRUMMAN SPACE & MISSION SYSTEMS CORP., an Ohio
corporation formerly known as TRW Inc. (including any successor thereto,
"Seller"). Each of Purchaser, TRW, AI LLC, Northrop Grumman and Seller is
referred to in this Agreement as a "Party" and, collectively, the "Parties".
Capitalized terms not defined herein have the respective meanings given to them
in the Master Purchase Agreement or the Employee Matters Agreement referred to
below.
W I T N E S S E T H:
WHEREAS, BCP Acquisition Company L.L.C., a Delaware limited
liability company ("BCP LLC"), and Northrop Grumman entered into a Master
Purchase Agreement, dated as of November 18, 2002, which was subsequently
amended by Amendment No. 1 thereto, dated as of December 20, 2002, and Amendment
No. 2 thereto, dated as of February 28, 2003 (as amended, the "Master Purchase
Agreement"), and BCP LLC thereafter assigned its rights under the Master
Purchase Agreement to AI LLC;
WHEREAS, pursuant to the Master Purchase Agreement, Purchaser issued
the $600 million original face amount of Seller Subordinated Note dated as of
February 28, 2003 plus all accrued interest thereon (as amended, the "Note"),
which Note is owned by Seller;
WHEREAS, Seller now wishes to sell, and Purchaser now wishes to
repurchase, the Note on the terms and subject to the conditions set forth
herein;
WHEREAS, Seller and TRW entered into an Employee Matters Agreement
dated as of February 28, 2003 (the "Employee Matters Agreement");
WHEREAS, various issues have arisen among the Parties relating to
certain Covered Matters (as defined below) arising under the Master Purchase
Agreement and the Employee Matters Agreement;
WHEREAS, the Parties have determined that, in order to facilitate
the purchase and sale of the Note and to avoid further expense, inconvenience
and disruption relating to such issues, it is in their respective best interests
to execute such purchase and sale and to settle any and all claims related to
such Covered Matters; and
NOW THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
1. Purchase and Sale; Settlement Payments.
(a) On the Closing Date referred to below, and on the terms and
subject to the conditions referred to herein:
(i) in consideration of the releases set forth in Section 5
hereof with respect to the matters referred to in clause (ii) of
Annex 1 hereto, Northrop Grumman shall pay (or cause to be paid) an
aggregate of $52.5 million to or to the order of AI LLC (for the
benefit of AI LLC and certain other stockholders of TRW) in
immediately available funds in accordance with wire transfer
instructions separately provided to Northrop Grumman by AI LLC;
(ii) (x) if the condition referred to in clause (x) of Section
13(a)(iv) and all other conditions set forth in Section 13(a) and
(b) (other than the condition referred to in clause (y) of Section
13(a)(iv)) shall have been satisfied (or waived to the extent
permitted by Section 13(a) or Section 13(b), as applicable), then
Seller shall sell the Note to Purchaser, and Purchaser shall
purchase the Note, and in consideration therefor, and for the other
releases set forth in Section 5 hereof and the other agreements set
forth herein, Purchaser shall pay, or cause to be paid, to Seller
$493.5 million in immediately available funds in accordance with
wire transfer instructions separately provided to Purchaser by
Seller (the alternative in this clause (x) herein referred to as the
"Note Sale Alternative"); or (y) if the condition referred to in
clause (x) of Section 13 (a)(iv) has not been satisfied, but the
condition referred to in clause (y) of Section 13(a)(iv) and all
other conditions set forth in Section 13(a) and (b) (other than the
condition referred to in clause (x) of Section 13(a)(iv)) shall have
been satisfied (or waived to the extent permitted by Section 13(a)
or Section 13(b), as applicable), then, in lieu of the purchase and
sale of the Note, but in consideration for the other releases set
forth in Section 5 hereof and the other agreements set forth herein,
including the Note Amendment referred to below, Northrop Grumman
shall pay (or cause to be paid) $40.5 million to TRW in immediately
available funds in accordance with wire transfer instructions
separately provided to Northrop Grumman by TRW, and Purchaser and
Seller shall execute an amendment to the Note deleting the second,
third and fourth sentences of Section 10.1 and an amendment to the
letter agreement dated June 23, 2004 between the Seller and the
Purchaser to replace the words "six months" in the proviso in the
first paragraph of section 2 thereof with the phrase "six months
plus forty-five days" (collectively, the "Note Amendment", and the
alternative in this clause (y) herein referred to as the "Note
Amendment Alternative"); and
(iii) TRW shall cause the TRW Automotive U.S. SPP to pay (or
cause to be paid) $21,356,766 plus earnings through September 30,
2004 in the amount of $5,681,025 calculated utilizing the
methodology provided in the Employee
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Matters Agreement to the TRW SPP in immediately available funds in
accordance with wire transfer instructions separately provided to
TRW by the TRW SPP Trustee.
(b) As soon as reasonably possible following the Closing and upon
request by the trustee for the TRW SPP, TRW shall cause the TRW Automotive U.S.
SPP to pay (or cause to be paid) to the TRW SPP the amount actually paid by the
TRW SPP, but in no event more than $4,730,420, in respect of payments previously
made by the TRW SPP to TRW Automotive Participants during the period from March
2003 through May 2003 to participants in the TRW Automotive U.S. SPP.
2. Closing; Closing Deliveries.
(a) The closing of the transactions contemplated by Section 1
hereof (the "Closing") will be held at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 within three Business Days
after the date on which the last to be fulfilled or waived of the conditions set
forth in Section 13 (other than those conditions that by their nature are to be
fulfilled at the Closing) are fulfilled or waived in accordance with this
Agreement, or at such other place and time as the parties may agree in writing.
The date on which the Closing will occur is referred to herein as the "Closing
Date".
(b) At the Closing:
(i) Northrop Grumman shall pay, or cause to be paid, to AI LLC the
consideration described in Section 1(a)(i) hereof;
(ii) (A) under the Note Sale Alternative, Seller shall deliver or
cause to be delivered to Purchaser the Note, free and clear of
all Liens, or (B) under the Note Amendment Alternative,
Purchaser and Seller shall execute and deliver the Note
Amendment and Northrop Grumman shall pay, or cause to be paid,
to TRW the consideration described in Section 1(a)(ii)(y)
hereof; and
(iii) TRW shall cause TRW Automotive U.S. SPP to deliver to the TRW
SPP the consideration described in Section 1(a)(iii) hereof.
3. Amendment of Employee Matters Agreement.
(a) Effective as of the Closing Date, the definition of "Divested
TRW Automotive Business Employee" in Section 1.1 of the Employee Matters
Agreement is hereby amended by deleting the phrase "; or 143 (Xxxxx Closed
Operations)." from the end thereof and replacing it with the following phrase:
"; 143 (Xxxxx Closed Operations); or the Operating Unit Codes listed on Schedule
1.1(c)." and such amendment shall be deemed to have been effective as of
February 28, 2003. In addition, the parties agree that if either OUC 276-LVBS
Livonia Transfers or OUC 276 - LVBS VM Service constitutes a Divested Business
then such Divested Business will be deemed to have been added to Schedule
1.1(c).
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(b) Effective as of the Closing Date, the Employee Matters
Agreement shall be amended to append Schedule 1.1(c) (in the form attached
hereto) thereto, and such amendment shall be deemed to have been effective as of
February 28, 2003.
4. Certain Indemnification Matters.
(a) Effective as of the Closing Date, on behalf of the Purchaser
Indemnified Parties, TRW agrees that it will pursue claims for indemnification
pursuant to Section 10.5 of the Master Purchase Agreement, and Northrop Grumman
agrees that it will indemnify such Purchaser Indemnified Parties pursuant to
such Section 10.5, in each case pursuant to the terms thereof and the terms of
the Supplemental Agreement on Environmental Liability Indemnity Procedure dated
as of August 24, 2004 (the "Supplemental Agreement") between Northrop Grumman
and TRW. With respect to internal TRW staff time and related business expenses
only, Sections 1.1 and 1.2 of the Supplemental Agreement shall be interpreted to
mean that the statement submitted by TRW shall include, and Northrop Grumman
shall be liable for, internal TRW staff time and related business expenses
calculated at a fixed rate of seven and one-half (7.5) percent of the Losses
arising out of or based upon or with respect to any Environmental Liability
incurred by TRW. Such charges shall not be subject to the 50-50 sharing
arrangement that applies to Losses.
(b) For the avoidance of doubt, Northrop Grumman acknowledges and
agrees that Tax Losses for purposes of Article XI of the Master Purchase
Agreement shall include interest and penalties related to Tax Losses, including
interest and penalties assessed by any taxing authority.
(c) Effective as of the Closing Date, TRW agrees to promptly
process, or cause to be processed by Xxxxx Varity Automotive Holding Company, as
successor in interest by merger to Xxxxx Varity, Inc. and subsidiaries, a U.S.
federal income tax refund request with respect to a capital loss disallowance
relating to a transfer of the capital stock of Xxxxx-Varity in 1998, and to
forward, within five days of receipt, the proceeds of any recovery thereunder
promptly to Northrop Grumman upon receipt thereof. In order to allow TRW a
reasonable time period within which to fulfill its obligations under the
immediately preceding sentence, Northrop Grumman will provide TRW with written
notice and a draft of such tax refund request not less than 14 Business Days
prior to the date on which such tax refund request must be filed.
Notwithstanding the foregoing, nothing in this Section 4(c) shall be construed
to otherwise amend, limit or modify the rights and obligations of the Parties
under Article XI of the Master Purchase Agreement, including, without
limitation, the right of any Party to receive refunds pursuant to Section 11.3
of the Master Purchase Agreement.
5. Settlement and Release.
(a) Effective as of the Closing Date, in consideration of the
mutual agreement to be bound by the terms of this Agreement, Northrop Grumman,
on behalf of itself and its affiliates and their respective past and current
employees, officers, directors, representatives, agents, administrators,
executors, divisions, unincorporated entities, d/b/a entities, heirs, assigns,
successors, predecessors, parents, subsidiaries, partners, principals, owners,
investors and shareholders ("Related Parties") hereby releases and forever
discharges each of TRW and AI LLC and their respective past, current and future
Related Parties, from any and all pending and potential claims, demands,
actions, causes of action, suits, debts, liabilities, losses, damages,
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awards, judgments, attorneys' fees, settlements, interest, and other fees, costs
or expenses, of whatever nature, whether known or unknown, pending or future,
certain or contingent ("Claims/Losses") arising out of, derived from, predicated
upon or relating to the matters referred to in Annex 1 hereto (the "Covered
Matters"), irrespective of whether the Claims/Losses might have affected
Northrop Grumman's decision to enter into this Agreement. Further, Northrop
Grumman and its Related Parties relinquish, to the extent it is applicable, and
to the full extent permitted by law, any benefits of the provisions of section
1542 of the California Civil Code or any other similar, comparable or equivalent
state law, federal law, or principle of common law, which may have the effect of
limiting the above release and discharge. Notwithstanding the foregoing, the
Parties do not concede that any law but that chosen in Section 17 is applicable
to this Agreement.
(b) Effective as of the Closing Date, in consideration of the
mutual agreement to be bound by the terms of this Agreement, each of TRW and AI
LLC, on behalf of itself and its affiliates and their respective Related Parties
(together with all of the persons described in Section 5(a), the "Released
Persons") hereby releases and forever discharges Northrop Grumman and each of
its past, current and future Related Parties, from any and all Claims/Losses
arising out of, derived from, predicated upon or relating to the Covered
Matters, irrespective of whether the Claims/Losses might have affected TRW and
AI LLC's decision to enter into this Agreement. Further, TRW and AI LLC and
their respective Related Parties relinquish, to the extent it is applicable, and
to the full extent permitted by law, any benefits of the provisions of section
1542 of the California Civil Code or any other similar, comparable or equivalent
state law, federal law, or principle of common law, which may have the effect of
limiting the above release and discharge. Notwithstanding the foregoing, the
Parties do not concede that any law but that chosen in Section 17 is applicable
to this Agreement.
6. Covenant Not To Xxx. Effective as of the Closing Date, the
Parties and their Related Parties shall not commence, pursue, participate in,
aid in the pursuit of or willingly become an adverse party in any action, claim,
lawsuit, arbitration or any other proceeding ("Proceeding") against the other
Parties and/or any other Released Persons arising out of, derived from,
predicated upon or relating to the Covered Matters, except for any Proceeding
for a breach of this Agreement or any representation, promise, warranty or
covenant herein.
7. Offer to Compromise/No Admission. This Agreement shall be
deemed to fall within the protection afforded compromises and offers to
compromise by Rule 408 of the Federal Rules of Evidence and any similar state
law provisions. Neither the terms of this Agreement nor its execution nor the
closing of the transactions contemplated hereby, nor any of the negotiations or
communications relating thereto shall be construed as an admission of wrongdoing
or liability on the part of any Party, or offered or received into evidence in
any Proceeding as any such purported admission or for any other purpose.
Notwithstanding the foregoing, the Parties agree that the Agreement may be
admissible as necessary to establish the existence of the Agreement or to
enforce or interpret its terms
8. Different Facts. Each Party acknowledges that if any fact
relating to this Agreement or the Covered Matters and now believed to be true is
found hereafter to be other than, or different from that which is now believed,
such Party expressly assumes the risk of such difference in fact and agrees that
this Agreement shall be and will remain effective,
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notwithstanding any such difference in fact and expressly releases and forever
discharges each of the other Parties to this Agreement and their respective
past, current and future Related Parties, from any and all Claims/Losses arising
out of, derived from, predicated upon or relating to such difference in fact.
9. Complete Defense. Each Party acknowledges that, effective as
of the Closing Date, this Agreement may be pleaded as a full and complete
defense to, and used as a basis for an injunction against, any Proceeding that
may be instituted, prosecuted or attempted in breach thereof. Should any Party
(or its Related Parties) institute any Proceeding to enforce any provision of
this Agreement, or to recover Claims/Losses sustained by reason of any alleged
breach of any provision thereof, or for a declaration of such Party's rights or
obligations hereunder, or to enjoin any Proceeding instituted, prosecuted or
attempted in breach of this Agreement, the prevailing party shall be entitled to
be reimbursed by the losing party for all reasonable and necessary costs and
expenses incurred thereby including, but not limited to, attorneys' fees for the
services rendered to the party finally prevailing in any such Proceeding.
10. Binding Effect. Each Party acknowledges that this Agreement
shall be binding upon each of them and their Related Parties, and shall inure to
the benefit of each of them, their Related Parties and all Released Persons.
11. Costs and Expenses. Each Party agrees to pay all of its own
costs and expenses, including attorneys' fees and costs of litigation, arising
out of or related to the Covered Matters, the execution of this Agreement and
the consummation of the transactions contemplated hereby; provided that the
foregoing shall not be construed to relieve any party hereto of any liability
for breach of any of the terms or provisions of this Agreement.
12. Representations and Warranties.
(a) Each Party represents and warrants to the other Parties that
the warranting Party (i) has full power and authority to enter into and perform
its obligations under this Agreement in accordance with its terms, and its
signatory has full power and authority to sign on behalf of such Party and all
of its Related Parties, (ii) has not assigned, sold, in any manner transferred,
encumbered, hypothecated or otherwise disposed of, in whole or in part, any of
the rights, causes of action, claims or other matters arising out of, derived
from, predicated upon or relating to the Covered Matters, and (iii) has executed
this Agreement after receiving advice of counsel, freely, without any compulsion
or duress, and after having done whatever investigation the warranting Party and
its counsel deemed appropriate, and fully intending to be bound by the terms and
provisions herein.
(b) Seller further represents and warrants that it has good and
valid title to the Note, free and clear of any liens, claims, encumbrances,
security interests, options, pre-emptive, drag-along or tag-along rights, rights
of first refusal or first offer, charges, restrictions or interests, legal or
beneficial, of any kind (collectively, "Liens"). Upon delivery of the Note to
Purchaser at the Closing (assuming the Closing includes the Note Sale
Alternative), good and valid title to the Note will pass to Purchaser, free and
clear of any Liens.
13. Closing Conditions.
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(a) Conditions Precedent to Obligations of Purchaser, TRW and AI
LLC. The obligation of Purchaser, TRW and AI LLC to consummate the transactions
contemplated by this Agreement is subject to the fulfillment, on the Closing
Date, of each of the following conditions (any or all of which may be waived by
each of Purchaser, TRW and AI LLC in whole or in part at its sole discretion):
(i) all representations and warranties of Northrop Grumman and
Seller contained herein shall be true and correct in all material
respects, at and as of the Closing Date with the same effect as
though those representations and warranties had been made again at
and as of that date;
(ii) Northrop Grumman and Seller shall have performed and
complied in all material respects with all obligations and covenants
required by this Agreement to be performed or complied with by them
on or prior to the Closing Date;
(iii) there shall not be in effect any Order by a Governmental
Body of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated
hereby, or be pending any Legal Proceeding by a Governmental Body of
competent jurisdiction that seeks the same; and
(iv) either (x) Purchaser shall have received financing in an
amount sufficient to pay the amount contemplated by Section
1(a)(ii)(x) hereof on or prior to November 22, 2004, or (y) on
November 23, 2004, the condition referred to in the preceding clause
(x) shall not have been satisfied.
(b) Conditions Precedent to Obligations of Northrop Grumman and
Seller. The obligation of Northrop Grumman and Seller to consummate the
transactions contemplated by this Agreement is subject to the fulfillment, on
the Closing Date, of each of the following conditions (any or all of which may
be waived by each of Northrop Grumman and Seller in whole or in part at its sole
discretion):
(i) all representations and warranties of Purchaser, TRW and
AI LLC contained herein shall be true and correct in all material
respects, at and as of the Closing Date with the same effect as
though those representations and warranties had been made again at
and as of that date;
(ii) Purchaser, TRW and AI LLC shall have performed and
complied in all material respects with all obligations and covenants
required by this Agreement to be performed or complied with by them
on or prior to the Closing Date; and
(iii) there shall not be in effect any Order by a Governmental
Body of competent jurisdiction restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated
hereby, or be pending any Legal Proceeding by a Governmental Body of
competent jurisdiction that seeks the same.
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14. Assignment. No Party may assign this Agreement, directly or
indirectly, in whole or in part, without the prior written consent of the other
Parties, except in connection with a merger, reorganization or change in
control, or a sale of all or substantially all of a Party's equity and/or
assets. Any such permitted assignee must agree in writing to assume all of the
assigning Party's obligations hereunder, and the assigning Party must guarantee
such assignee's performance hereunder. Any purported assignment in contravention
of this Section 14 shall be void ab initio and of no force or effect. In the
event of a permitted assignment, this Agreement shall be binding upon such
Party's permitted successors and assigns and their Related Parties.
15. Full Force and Effect; Effectiveness. Except as set forth in
this Agreement, the Master Purchase Agreement and the Employee Matters Agreement
shall remain in full force and effect without further modification. This
Agreement shall be effective as of the date hereof.
16. Termination. This Agreement shall terminate and have no
further force and effect if the Closing has not occurred on or prior to November
30, 2004.
17. Governing Law/Forum. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York without regard to
the conflict of law principles of such state. Any dispute among the Parties
relating to this Agreement shall be resolved solely in the state or federal
courts located in Manhattan, New York City. Each Party irrevocably submits to
the exclusive jurisdiction of such courts for such purposes. Each Party agrees
that service of any process, summons, notice or document by U.S. registered mail
to such Party's respective address set forth in Section 18 shall be effective
service of process for any such court action.
18. Notice. All notices, requests and other communications to any
Party shall be in writing and shall be deemed duly given and effective only (i)
when delivered by reputable overnight messenger or courier, (ii) when delivered
by facsimile with proof of receipt or (iii) five days after deposit for mailing
by registered or certified mail, postage prepaid, return receipt requested, to
the following addresses. Any Party may modify its information below by sending
notice to the other Parties as set forth below:
for TRW:
TRW Automotive Holdings Corp.
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
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for AI LLC:
Automotive Investors LLC
c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
for Northrop Grumman:
Northrop Grumman Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Vice President and General Counsel
for Seller:
c/o Northrop Grumman Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Vice President and General Counsel
19. Amendments/Waiver. This Agreement, including this Section 19,
may be amended only by a writing that has been signed by all Parties and
specifically refers to the provision of this Agreement to be amended. No breach
of this Agreement may be waived except by a writing that has been signed by the
Party to be charged with the waiver and that specifically refers to the
provision of this Agreement to be waived. Waiver by a Party of any breach of any
provision of this Agreement by any other Party shall not operate or be construed
as a waiver of any prior, contemporaneous or subsequent breach of this
Agreement, by the same or any other Party.
20. Confidentiality. Each Party agrees that it shall keep the
terms of this Agreement confidential, and shall not disclose same to any person
or entity, except as required in the ordinary course of business for such
purposes as audits and accounting, or otherwise as required by law, court order
or judicial process, or to comply with applicable securities laws, or to seek
enforcement of the Agreement in a Proceeding. Should a court or government
authority order the disclosure of the terms of this Agreement to any other
person or entity, the Party required to make such disclosure shall inform the
other Parties as soon as possible, cooperate with the other Parties to obtain a
protective order or other applicable relief, and make only such disclosures as
are required by such court or government authority.
21. Severability. The Parties agree that each provision of this
Agreement shall be construed as separable and divisible from every other
provision. The unenforceability of any one provision shall not limit the
enforceability, in whole or in part, of any other provision hereof.
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If any provisions of this Agreement are held unenforceable, this Agreement shall
be deemed modified in a manner that preserves as many of the Parties' rights
hereunder as possible.
22. Cumulative Rights. All rights and remedies which a Party may
have hereunder or by operation of law or in equity are cumulative, and the
pursuit of one right or remedy shall not be deemed an election to waive or
renounce any other right or remedy. The failure of a Party to require strict
performance by the other Parties of any provision in this Agreement will not
waive or diminish that Party's right to demand strict performance thereafter of
that or any other provision hereof.
23. Negotiation. Each of the Parties warrants and represents that
it has relied upon its own judgment and that of its own legal counsel regarding
the proper, complete, and agreed-upon consideration for, and other terms and
provisions of, this Agreement, and that no statements, warranties, promises or
representations made by any other Party or any of its agents, employees, or
legal counsel (other than as set forth in this Agreement) have influenced or
induced it to execute this Agreement.
24. Construction. Section headings are inserted for the
convenience of reference only and shall be ignored in the construction of this
Agreement. The Parties hereby agree that this Agreement or any uncertainty or
ambiguity herein shall not be construed against any Party on the basis that it
drafted the Agreement but shall be construed as if all Parties jointly prepared
this Agreement.
25. Waiver of Jury Trial. In any Proceeding to enforce this
Agreement, the Parties waive the right to trial by jury.
26. Third-Party Beneficiaries. All of the Released Persons who are
not Parties to this Agreement are deemed third-party beneficiaries hereof and
may enforce their rights hereunder to the same extent as any Parties hereto.
27. Entire Agreement. This Agreement shall constitute the entire
agreement between the Parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter. The Parties acknowledge that this Agreement is executed
without reliance upon any inducements, representations, warranties, statements
or promises except for those contained herein.
28. Counterparts/Signatures. This Agreement may be signed in one
or more counterparts, each of which shall be deemed an original, and all of
which shall be considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each Party and received
by the other Parties. Facsimile signatures shall be deemed originals for
purposes of binding the Parties to this Agreement, provided that originals of
the faxed signature pages shall be forwarded immediately to counsel for the
other Parties.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NORTHROP GRUMMAN CORPORATION TRW AUTOMOTIVE HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- -------------------------------------
Title: Corporate Vice President Title: Executive Vice President and
and Treasurer Chief Financial Officer
NORTHROP GRUMMAN SPACE & MISSION AUTOMOTIVE INVESTORS L.L.C.
SYSTEMS CORP.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------------- -------------------------------------
Title: Corporate Vice President Title: Manager
and Treasurer
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ANNEX 1
(i) Claims/Losses arising out of, derived from, predicated upon or relating to
breaches of representations and warranties pursuant to Section 10.1(a)(i)
or 10.1(b)(i) of the Master Purchase Agreement (other than with respect to
the representations and warranties in Section 5.1, 5.2, 5.4, 5.10 or 6.1,
or in any related schedule or in any related certificate or document
delivered pursuant hereto). Notwithstanding the preceding sentence,
Covered Matters shall include Claims/Losses arising out of, derived from,
predicated upon or relating to any breaches of representations and
warranties under Section 5.10 (Employee Benefits) of the Master Purchase
Agreement in any manner associated with TRW's disclosures regarding (a)
the assets or liabilities attributable to Xxxxxx Xxxxxxx participants in
the TRW SPP and (B) the transfer of pension or welfare plan assets or
liabilities described or referred to in Schedule A hereto;
(ii) Claims/Losses arising out of, derived from, predicated upon or relating to
Section 10.9 ("OPEB Indemnity") of the Master Purchase Agreement;
(iii) Claims/Losses arising out of, derived from, predicated upon or relating to
the discharge by TRW of up to $1.1 million in Excluded Liabilities
relating to the former aeronautical business of Seller;
(iv) Claims/Losses arising out of, derived from, predicated upon or relating to
the transfers of assets between the TRW Automotive U.S. SPP and the TRW
SPP pursuant to Section 3.1 of the Employee Matters Agreement;
(v) Claims/Losses arising out of, derived from, predicated upon or relating to
payments of bonuses to Active TRW Automotive Employees pursuant to Section
8.1 of the Employee Matters Agreement;
(vi) Claims/Losses arising out of, derived from, predicated upon or relating to
severance pay, salary continuation, notice obligations and similar
obligations with respect to TRW Automotive participants, TRW Participants
or Delayed Transfer Employees pursuant to Section 8.3 of the Employee
Matters Agreement;
(vii) Claims/Losses arising out of, derived from, predicated upon or relating to
up to $7 million of payments made by Northrop Grumman or any of its
Affiliates on behalf of TRW or any of its Affiliates (or any benefit plans
maintained by any of them) on and after the Closing Date in respect of
health and welfare benefit payments, including, without limitation, those
made to Aetna, Anthem, Delta Dental, Lumenos, Merck Medco, Medical Mutual,
Value Options or other health care vendors; and
(viii) Claims/Losses arising out of, derived from, predicated upon or relating
to the matters covered by Section 3.2 of the Master Purchase Agreement or
the letter agreement relating thereto dated August 15, 2003 between
Northrop Grumman and BCP LLC (and accepted by BCP LLC on August 17, 2003)
including, but not
12
limited to, the amounts withheld on August 21, 2003 in respect of (a)
bonus payments pursuant to Section 8.1 of the Employee Matters Agreement
and (b) severance and similar payments pursuant to Section 8.3 of the
Employee Matters Agreement.
13
SCHEDULE A TO ANNEX 1
Schedule A to Annex 1 (List of Correspondence) is omitted and will be furnished
supplementally to the Commission upon request.
14
SCHEDULE 1.1 (c)
HR OUC LOCATION NAME
16602 TRW VALVE CLEVELAND (H)
16604 TRW VALVE CLARKWOOD (H)
47304 TRW VSSI WASHINGTON (H)
00000 XXX XXX XXXXXXXXXX (X)
00000 TRW SSS APR McALLEN (S)
10509 TRW ELEC. POWERED STEERING
10510 TRW SSS ACTIVE CONTROL SYSTEMS
10515 SSD STERLING HEIGHTS SECURITY
10517 TRW RPD GREENSBORO (H)
10518 TRW SSS APR McALLEN (H)
16600 TRW VALVE DIVISION STAFF
16601 TRW VALVE CLEVELAND
00000 XXX XXXXX XXXXXXXXX
00000 XXX CALIFORNIA
27601 TRW LV LVB (H) CINCINNATI
00000 XXX XX XXX (X) XXXXXXXXXX
00000 LV LVB DETROIT SALARIED
00000 XXX XX XXX (X) XXXXXXX
00000 TRW VSSI SEATBELTS
00000 XXX XXXX XXXXXXXXXX (X)
00000 TRW VSSI LOUISVILLE (H)
47305 TRW VSSI McALLEN (H)
47307 VSSI - STAFF (HOURLY)
00000 XXX XXXX XXXXXXXXXX XXXXX (X)
00000 TRW TECHNAR INC
00000 XXX XXXXXXX XXXXXXXXX XXXXX
000 VARITY NON QUALIFIED (H/W Cylendrical Sys Nuline)
72202 XXX/KNOWVILLE-MCALLEN WHSE
92502 TRW Sensors & Components LOVELAND
92701 TRW Sensors & Components VANDALIA (H)
92702 TRW Sensors & Components VANDALIA (S)
93902 TRW Sensors & Components HAMPTON
276 LVBS - Discontinued
276 LVBS - Buffalo
27603 LV LVB DETROIT (UNION 1)
27605 LV LVB DETROIT (UNION 2)
27617 TRW LV LVB (H) MILFORD
