EXHIBIT 2.3
EXECUTION COPY
AMENDMENT NO. 2
TO THE
MASTER PURCHASE AGREEMENT
This Amendment No. 2, dated February 28, 2003 (this "AMENDMENT
NO. 2"), of the Master Purchase Agreement, dated November 18, 2002 (as amended
pursuant to Amendment No. 1, dated December 20, 2002, the "MASTER PURCHASE
AGREEMENT"), is hereby made among Northrop Grumman Corporation, a Delaware
corporation ("NORTHROP GRUMMAN"), Northrop Grumman Space & Mission Systems
Corp., an Ohio corporation formerly known as TRW Inc. ("TRW"), TRW Automotive
Inc., a Delaware corporation ("TRW AUTOMOTIVE"), and BCP Acquisition Company
L.L.C., a Delaware limited liability company ("BCP LLC").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in accordance with Section 12.5 of the Master
Purchase Agreement, Northrop Grumman, TRW, TRW Automotive and BCP LLC, wish to
amend the terms of the Master Purchase Agreement as provided in Section I below;
WHEREAS, unless otherwise defined herein, capitalized terms
used but not defined herein shall have the meanings assigned to them in the
Master Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION I
AMENDMENTS
1. Amendment to Second WHEREAS Clause. The second WHEREAS
Clause of the Master Purchase Agreement is hereby deleted and replaced in its
entirety with the following:
"WHEREAS, TRW Automotive Inc., a Delaware corporation ("TRW
AUTOMOTIVE") and a wholly owned subsidiary of TRW, has formed or will form prior
to the Closing Date TRW Auto Holdings Inc., a Delaware corporation ("HOLDINGS"),
and will own all of the issued and outstanding shares of common stock, par value
$0.001 per share (the "HOLDINGS CAPITAL STOCK"), of Holdings;
2. Amendment to Third WHEREAS Clause. The third WHEREAS Clause
of the Master Purchase Agreement is hereby deleted and replaced in its entirety
with the following:
"WHEREAS, TRW (i) owns one hundred percent (100%) of the
issued and outstanding Capital Stock (the "VSSI CAPITAL STOCK") of TRW Vehicle
Safety Systems, Inc., a Delaware corporation ("VSSI"), and (ii) has formed or
will form prior to the Closing Date TRW Automotive U.S. LLC, a Delaware limited
liability company ("SMLLC"), and TRW
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Automotive JV LLC, a Delaware limited liability company ("JVLLC"), and will own
or a Subsidiary of TRW will own all of the issued and outstanding equity
ownership interests in SMLLC and JVLLC (collectively, the "LLC INTERESTS");
3. Amendment to Fourth WHEREAS Clause. The fourth WHEREAS
Clause of the Master Purchase Agreement is hereby deleted and replaced in its
entirety with the following, and new fifth and sixth WHEREAS clauses are hereby
added:
WHEREAS, TRW Automotive U.K. Inc., a Delaware corporation and
an indirect subsidiary of TRW ("AUTO NEWCO"), will immediately prior to the
Closing own (i) ninety-nine percent (99%) of the issued and outstanding Capital
Stock (the "▇▇▇▇▇-VARITY CAPITAL STOCK") of LucasVarity, a company organized
under the laws of England and Wales ("▇▇▇▇▇-VARITY"), (ii) all of the issued and
outstanding Capital Stock (the "TRW UK CAPITAL STOCK") of TRW UK Ltd, a company
organized under the laws of England and Wales ("TRW UK"), and (iii) all of the
issued and outstanding Capital Stock (the "INO CAPITAL STOCK") of TRW INO Ltd.,
a company organized under the laws of England and Wales ("INO" and collectively
with Holdings, SMLLC, JVLLC, ▇▇▇▇▇-Varity, TRW UK, VSSI, Ruling Newco and the
Foreign Entities and subject to the understanding set forth in the last sentence
of Section 1.6(b), the "COMPANY");
WHEREAS, TRW Automotive U.K. I Inc., a Delaware corporation
and a wholly owned subsidiary of Auto Newco ("AUTO NEWCO I"), will immediately
prior to the Closing own one percent (1%) of ▇▇▇▇▇-Varity Capital Stock;
WHEREAS, TRW Automotive UK Ltd., a company organized under the
laws of England and Wales ("TAUK"), owns all of the issued and outstanding
Capital Stock ("RULING NEWCO CAPITAL STOCK" and, together with the Holdings
Capital Stock, the VSSI Capital Stock, the LLC Interests, the ▇▇▇▇▇-Varity
Capital Stock, the TRW UK Capital Stock and the INO Capital Stock, the "SHARES")
of ▇▇▇▇▇ Varity Automotive Holding Co., a Delaware corporation ("RULING
NEWCO");
4. Amendment to Section 1.1(b)(i). Section 1.1(b)(i) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(i) Intermediate Holdco will acquire from TAUK shares of
common stock of Ruling Newco, representing approximately 62.7% of the value of
the issued and outstanding Ruling Newco Capital Stock (the "PARENT RULING NEWCO
STOCK") in exchange for the Seller Note in accordance with Schedule 1.1 (the
"PURCHASE PRICE ALLOCATION SCHEDULE"), and the Seller Note will be distributed
to TRW or as TRW directs."
5. Amendment to Section 1.1(b)(ii). Section 1.1(b)(ii) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(ii) Parent will contribute to Intermediate Holdco (A) up to
$698,000,000 in cash (such amount, as it may be adjusted pursuant to the proviso
below, the "CASH CONTRIBUTION") and (B) newly issued shares of common stock of
Parent (having an implied value of at least $170,000,000 based upon the Purchase
Price and, before any adjustment pursuant to Section 3.2, representing 19.6% of
the issued and outstanding common stock of
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Parent (such amount of shares, as it may be adjusted pursuant to the proviso
below, the "EQUITY CONSIDERATION") in exchange for all of the issued and
outstanding shares of common stock of Intermediate Holdco; provided that Parent
may elect, at its sole option, to decrease the amount of cash contributed by up
to $168,000,000, provided that it increases the amount of the Equity
Consideration contributed to a number of shares having an implied value
(calculated as set forth above) equal to the amount of such decrease in cash
(representing up to 42% of the issued and outstanding common stock of Parent);
6. Amendment to Section 1.1(b)(iii). Section 1.1(b)(iii) of
the Master Purchase Agreement is hereby deleted and replaced in its entirety
with the following:
(iii) Intermediate Holdco will contribute to Newco the Cash
Contribution, the Parent Ruling Newco Stock and the Equity Consideration in
exchange for all of the issued and outstanding shares of common stock of Newco;
7. Amendment to Section 1.1(b)(vi). Section 1.1(b)(vi) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(vi) Newco will capitalize the entities listed on Schedule
1.1(b)(vi) (collectively, the "FOREIGN ACQUIRORS") by contributing cash in
exchange for all of the issued and outstanding shares of Capital Stock of the
Foreign Acquirors, and ▇▇▇▇▇ will lend cash to the Foreign Acquirors in amounts
to be determined;"
8. Amendment to Section 1.1(b)(viii). Section 1.1(b)(viii) is
hereby added to the Master Purchase Agreement and the last sentence of Section
1.1(b) is hereby amended to read as follows:
(viii) Newco will capitalize Automotive Holdings (UK)
Limited, a limited company organized under the laws of England and Wales ("NEWCO
UK"), by contributing cash in exchange for 99% of the issued and outstanding
shares of Newco UK in an amount to be determined, and Newco Sub will contribute
cash in exchange for 1% of the issued and outstanding shares of Newco UK in an
amount to be determined and Newco will make the Newco Loan.
The steps referred to in the foregoing clauses (i) through
(viii) are collectively referred to herein as the "ACQUISITION STRUCTURE
STEPS".
9. Amendment to Section 1.1(c)(ii). Section 1.1(c)(ii) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(ii) The Foreign Acquirors (other than the French Foreign
Acquiror) will acquire from TRW Automotive, Holdings or one of its Subsidiaries
all of the issued and outstanding Capital Stock of those entities listed on
Schedule 1.1(c)(ii) (collectively, the "FOREIGN ENTITIES") (other than as
provided for in Section 1.1(c)(iii)) that become Agreed Foreign Entities in
accordance with Section 7.6 hereof, in each case for the amount of cash set
forth on the Purchase Price Allocation Schedule, and Holdings or its
Subsidiaries, as the case may be, will distribute any cash it receives to TRW
Automotive; provided that any cash allocated in the Purchase Price Allocation
Schedule to the purchase of any Foreign Entities that are not
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Agreed Foreign Entities shall be added to the cash consideration provided for in
Section 1.1(c)(vi)(A), and the Capital Stock of such Foreign Entities that are
not Agreed Foreign Entities shall continue to be held by Holdings or its
appropriate Subsidiary (the Capital Stock of the Agreed Foreign Entities
acquired pursuant to this Section 1.1(c)(ii) and the Capital Stock of the French
Subsidiaries acquired pursuant to clause (iii) below are collectively referred
to as the "FOREIGN SHARES");
10. Amendment to Section 1.1(c)(iii). Section 1.1(c)(iii) of
the Master Purchase Agreement is hereby deleted and replaced in its entirety
with the following:
(iii) The French Foreign Acquiror will acquire from TRW
Automotive, Holdings or one of its Subsidiaries and from ▇▇▇▇▇-Varity or one of
its Subsidiaries all of the issued and outstanding Capital Stock of certain
direct and indirect French subsidiaries of TRW Automotive, Holdings or one of
its Subsidiaries and ▇▇▇▇▇-Varity or one of its Subsidiaries listed on Schedule
1.1(c)(iii) for the amount of cash and a note issued by the French Foreign
Acquiror with a face amount as set forth on the Purchase Price Allocation
Schedule and Holdings or its Subsidiaries, as the case may be, and ▇▇▇▇▇-Varity
or its Subsidiaries, as the case may be, will distribute any cash they receive
to TRW Automotive;
11. Amendment to Section 1.1(c)(iv). Section 1.1(c)(iv) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(iv) Newco UK will acquire from Auto Newco 80.4% of the
equity interest in ▇▇▇▇▇-Varity and the TRW UK Capital Stock and the INO Capital
Stock for the amount of cash and the Equity Consideration set forth on the
Purchase Price Allocation Schedule;
12. Amendment to Section 1.1(c)(v). Section 1.1(c)(v) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(v) Newco will acquire from Auto Newco 18.6% of the equity
interests in ▇▇▇▇▇-Varity in exchange for the Equity Consideration, and Newco
Sub will acquire 1% of the equity interests in ▇▇▇▇▇-Varity in exchange for the
amount of cash set forth on the Purchase Price Allocation Schedule;
13. Amendment to Section 1.2(a). Section 1.2(a) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(a) Subject to the terms and conditions of this Agreement and
in a manner that results in the structure set forth in Annex I, prior to the
Closing Date, TRW shall, and shall cause the other TRW Equity Transferring
Companies to, transfer, convey, assign and deliver to the Company and its
Subsidiaries, as appropriate, and the Company and its Subsidiaries, as
appropriate, shall accept from TRW and such TRW Equity Transferring Companies
all of TRW's and such TRW Equity Transferring Companies' right, title and
interest in and to the Equity Interests.
14. Amendment to Section 1.2(b). Section 1.2(b) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
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(b) Subject to the terms and conditions of this Agreement and
in a manner that results in the structure set forth in Annex I, prior to the
Closing Date, TRW shall, and shall cause the other TRW Asset Transferring
Companies to, transfer, convey, assign and deliver to SMLLC, and SMLLC shall
accept from TRW and such TRW Asset Transferring Companies, all of TRW's and its
Subsidiaries' right, title and interest in and to the Automotive Assets.
15. Amendment to Section 1.3(a). Section 1.3(a) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(a) Subject to the terms and conditions of this Agreement,
TRW shall cause SMLLC, in partial consideration for the transfers described in
Section 1.2, to assume all Automotive Liabilities and on a timely basis shall
pay, satisfy and discharge (or cause to be paid, satisfied and discharged) all
Automotive Liabilities.
16. Amendment to Section 1.5. Section 1.5 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
1.5 Nonassignable Contracts. Anything contained herein to the
contrary notwithstanding, but subject to Section 7.3 and Section 8.2(d), this
Agreement will not constitute an agreement to assign any Delayed Equity
Interest, Contract or other Automotive Asset if an assignment or attempted
assignment of the same without the Consent of another Person would not be
effective or constitute a breach thereof or entitle any other party thereto to
terminate, or accelerate or assert additional material rights thereunder or with
respect thereto. If any such Consent is not obtained or if an attempted
assignment would be ineffective or have such other effect, then (a) the party
purporting to make such transfer (the "INTENDED TRANSFEROR") shall (i) provide
or cause to be provided to the party entitled to the benefits of such purported
transfer (the "INTENDED TRANSFEREE"), to the extent permitted by Law, the
benefits of any such Contract or Automotive Asset, (ii) cooperate in any lawful
arrangements designed to provide such benefits to the Intended Transferee, (iii)
enforce, at the request of and for the account of the Intended Transferee, any
rights of the Intended Transferor arising from such Contract or Automotive
Asset, including the right to elect to terminate any such Contract in accordance
with the terms thereof upon the advice of the Intended Transferee, and (iv)
promptly pay or cause to be paid to the Intended Transferee when received all
moneys received by the Intended Transferor with respect to any such Contract or
Automotive Asset and (b) in consideration for the matters described in clause
(a) above, the Intended Transferee shall pay, perform and discharge on behalf of
the Intended Transferor all of the Intended Transferor's Liabilities thereunder
(to the extent such Liabilities would otherwise have been assumed by the
Intended Transferee pursuant to Section 1.3(a)) in a timely manner and in
accordance with the terms thereof. In addition, the Intended Transferor shall
take such other actions as may reasonably be requested by the Intended
Transferee in order to place the Intended Transferee, insofar as reasonably
possible, in the same position as if such Contract or Automotive Asset had been
transferred as contemplated hereby and so that all the benefits and burdens
relating thereto, including possession, use, risk of loss, potential for gain
and dominion, control and command, will inure to the Intended Transferee. If and
when such Consents are obtained, the transfer of the applicable Delayed Equity
Interest, Contract or Automotive Asset will be effected in accordance with the
terms of this Agreement. The parties acknowledge and agree that the transfers of
the Delayed Equity Interests shall be governed by this Section 1.5.
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17. Amendment to Section 1.6(b). Section 1.6(b) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(b) Each of the representations, warranties, covenants,
agreements and undertakings of Northrop Grumman, TRW and TRW Automotive
contained herein (and all corresponding definitions) is given or made as if, and
on the basis that, Holdings, ▇▇▇▇▇-Varity, TRW UK, INO, VSSI, Ruling Newco,
SMLLC, JVLLC and the Foreign Entities were in existence, to the extent
applicable, and the Transfers had occurred prior to all dates relevant to such
representations, warranties, covenants and undertakings. Subject to the
foregoing, any references to the Company and its Subsidiaries in any such
representations, warranties, covenants, agreements and undertakings will be
deemed to be a reference to Holdings, ▇▇▇▇▇-Varity, TRW UK, INO, VSSI, Ruling
Newco, SMLLC, JVLLC and the Foreign Entities and their respective Subsidiaries
after giving effect to the Transfers (and other variations on such references
(e.g., the "Company or any of its Subsidiaries" or "Subsidiaries of the
Company") will be deemed to have corresponding meanings) unless the context
clearly indicates otherwise.
18. Amendment to Article II. Article II of the Master Purchase
Agreement is hereby deleted and replaced in its entirety with the following:
ARTICLE II
SALE AND PURCHASE OF THE SHARES AND THE FOREIGN SHARES
2.1 Sale and Purchase of the Shares and the Foreign Shares.
Subject to and in accordance with the terms and conditions of this Agreement, on
the Closing Date, Northrop Grumman shall, or shall cause the Company, TRW, TRW
Automotive, Auto Newco, Auto Newco I, VSSI or Holdings, as appropriate, to,
sell, assign, transfer, convey and deliver to the BCP Entities, as appropriate,
the Shares and the Foreign Shares, in each case free and clear of all Liens, and
the BCP Entities shall deliver to TRW, TRW Automotive, Auto Newco, Auto Newco I,
VSSI and Holdings the Purchase Price, in each case in the manner and for the
consideration set forth on the Purchase Price Allocation Schedule.
19. Amendment to Section 3.1(b). Section 3.1(b) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(b) The aggregate purchase price (the "PURCHASE PRICE") to be
paid for the Shares and the Foreign Shares acquired by BCP Entities pursuant to
this Agreement shall consist of (i)(A) $3,544,700,000 (calculated after giving
effect to the adjustment provided for in the fourth and sixth sentences of
Section 3.2(a) hereof) plus the difference between the Cash Contribution and
$500,000,000, all in cash, less (B) the Estimated Adjusting Indebtedness (which
is agreed to be $209,733,503), subject to adjustment as provided in Section
3.2(b); (ii) the Korean Sale Note, (iii) the Equity Consideration; and (iv) the
Seller Note. The Purchase Price is to be allocated in accordance with the
Purchase Price Allocation Schedule, and no party shall take a position
inconsistent with such allocation on any Tax Return.
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20. Amendment to Section 3.2(a). Section 3.2(a) of the Master
Purchase Agreement is hereby amended to add the following full sentence after
the second full sentence therein:
For the avoidance of doubt, the Closing Balance Sheet shall
be prepared as though the Closing had occurred as of the close of business on
the Closing Date and the business of the Company had been operated on the
Closing Date in the ordinary course of business consistent with past practice.
21. Amendment to Section 3.2(b). Section 3.2(b) of the Master
Purchase Agreement is hereby amended to add the following full sentence after
the second full sentence therein:
For the avoidance of doubt, the Closing Balance Sheet shall
be prepared as though the Closing had occurred as of the close of business on
the Closing Date and the business of the Company had been operated on the
Closing Date in the ordinary course of business consistent with past practice.
22. Amendment to Section 5.1(a). Section 5.1(a) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(a) Each of Northrop Grumman, TRW, TRW Automotive,
▇▇▇▇▇-Varity, TRW UK, INO, Ruling Newco and Auto Newco is (and Holdings, Auto
Newco I and VSSI at Closing will be) a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to enter into
this Agreement and the Ancillary Agreements to which it is or will be a party,
and to consummate the transactions contemplated hereby and thereby. Each of
SMLLC and JVLLC is a limited liability company duly formed, validly existing and
in good standing under the laws of the state of Delaware. Each of the TRW
Transferring Companies has, or will have at the time of such Transfers, all
requisite corporate power and authority to consummate the Transfers. All
corporate and limited liability company acts and other proceedings (including
any stockholder or board approvals) required to be taken by each of Northrop
Grumman, TRW, TRW Automotive and the Company and its Subsidiaries, as
applicable, to authorize the execution, delivery and performance of this
Agreement, the Foreign Purchase Agreements and the Ancillary Agreements to which
it is or will be a party and the consummation of the transactions hereby and
thereby have been or (in the case of TRW, TRW Automotive, the Company, Auto
Newco and Auto Newco I) will be as of the Closing, duly and properly taken. All
corporate and limited liability company acts and other proceedings (including
any stockholder, member or board approvals) required to be taken by each of the
TRW Transferring Companies to consummate the Transfers have been, or will be at
the time of such Transfers, duly and properly taken. This Agreement has been or
(in the case of TRW and TRW Automotive) will be as of the TRW Execution Date,
and each of the Ancillary Agreements and the Foreign Purchase Agreements, when
executed will be, duly executed and delivered by each of Northrop Grumman, TRW,
TRW Automotive and the Company and its Subsidiaries, as applicable, and each
constitutes, or will when executed constitute, a valid and binding obligation of
each of Northrop Grumman, TRW, TRW Automotive and the Company and its
Subsidiaries, as applicable, enforceable against each of Northrop Grumman, TRW,
TRW Automotive and the Company and its Subsidiaries, as the case
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may be, in accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally or by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
23. Amendment to Section 5.2(a). Section 5.2(a) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(a) All of the issued and outstanding shares of Capital Stock
of Holdings will be at the Closing owned directly by TRW Automotive free and
clear of any and all Liens and will have been duly authorized for issuance and
will be validly issued, fully paid and non-assessable. SMLLC and JVLLC are sole
member limited liability companies. All of the membership interests of SMLLC and
JVLLC will be at the Closing owned directly by TRW or a Subsidiary of TRW free
and clear of any and all Liens, will be duly authorized for issuance and will be
validly issued, fully paid and non-assessable and there are no other outstanding
equity interests in SMLLC or JVLLC.
24. Amendment to Section 5.3(a). Section 5.3(a) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(a) Schedule 5.3 to the Northrop Grumman Disclosure Letter
contains a true and complete copy of the following:
(i) audited combined balance sheets of TRW Automotive and
its Subsidiaries as of December 31, 2001 (the "AUDITED BALANCE SHEET")
and December 31, 2000;
(ii) audited combined statements of operations, cash
flows and changes in stockholder's investment of TRW Automotive and its
Subsidiaries for each of the three (3) one-year periods ended December
31, 2001, December 31, 2000 and December 31, 1999;
(iii) unaudited interim combined balance sheet of TRW
Automotive and its Subsidiaries as of September 30, 2002 (the "INTERIM
BALANCE SHEET"); and
(iv) unaudited interim combined statements of operations,
cash flows and changes in stockholder's investment of TRW Automotive
and its Subsidiaries for each of the nine (9) month periods ended
September 30, 2002 (together with the Interim Balance Sheet, the
"INTERIM FINANCIAL STATEMENTS") and September 30, 2001.
The financial statements described in the foregoing clauses (i) through (iv) are
collectively referred to herein as the "FINANCIAL STATEMENTS." The Financial
Statements were prepared in accordance with GAAP, consistently applied (except
as disclosed in the footnotes thereto) and present fairly, in all material
respects, the combined financial position and combined results of operations and
cash flows of the Company and its Subsidiaries as of the dates thereof and for
the periods covered thereby, except for (A) the absence of footnotes required by
GAAP in connection with unaudited statements as of, and for the period ended,
September 30, 2002; (B)
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the effect, calculated in accordance with GAAP, of the inclusion in the
Financial Statements of Indebtedness (1) allocated from TRW (other than
Indebtedness representing historical third-party obligations of the automotive
legal entities included in the Company and its Subsidiaries) and (2) set forth
on Schedule 7.20 to the extent the same does not become Agreed Assumed
Indebtedness; (C) the effect, calculated in accordance with GAAP, of the
inclusion in the Financial Statements of the Assets, Liabilities and results of
the business of TRW Investment Management Company, which has as of the date
hereof and will have at Closing total Assets of $1 million or less and (D) the
effect, calculated in accordance with GAAP, of the inclusion in the Financial
Statements of the Assets, Liabilities and results of the business of the Koyo
Joint Venture. The Interim Balance Sheet as adjusted to eliminate the effects
referred to in (y) and (z) above in accordance with GAAP is referred to herein
as the "ADJUSTED INTERIM BALANCE SHEET." All of the Assets and Liabilities of
the Company and its Subsidiaries as of September 30, 2002 would be reflected on
the Adjusted Interim Balance Sheet to the extent the same would be required to
be so reflected under GAAP, and no other Assets or Liabilities other than those
of the Company and its Subsidiaries would be reflected on the Adjusted Interim
Balance Sheet (in each case, if such Adjusted Interim Balance Sheet were
prepared in accordance with GAAP).
25. Amendment to Section 5.15. Section 5.15 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
5.15 Affiliate Transactions. There are no transactions,
agreements, arrangements or understandings between Northrop Grumman or any of
the TRW Asset Transferring Companies and the TRW Equity Transferring Companies,
on the one hand, and the Company or any of its Subsidiaries, on the other hand,
pertaining to or affecting the Automotive Business, that would be required to be
disclosed under Item 404 of Regulation S-K of the Securities and Exchange
Commission, assuming that the Company were subject to the reporting requirements
of the Exchange Act.
26. Amendment to Section 7.1(c). Section 7.1(c) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following, and Sections 7.1(d) and (e) are hereby added:
(c) Prior to the Northrop/TRW Closing, Northrop Grumman
shall, and shall use its reasonable best efforts, so far as is permitted under
the Northrop/TRW Merger Agreement, to cause TRW to, and following the
Northrop/TRW Closing, Northrop Grumman and TRW each shall, (i) hold, and use
reasonable best efforts to cause their respective Affiliates, consultants,
advisors, agents and representatives to hold, in strict confidence to the same
extent as provided for in the Confidentiality Agreement as if Northrop Grumman
and its Affiliates were deemed to be bound by reciprocal confidentiality
obligations, all confidential or trade secret information relating to the
Automotive Business and (ii) not use such confidential or trade secret
information to the detriment of the Automotive Business.
(d) Schedule 7.1(d) to the Northrop Grumman Disclosure Letter
sets forth each confidentiality agreement with a third party relating to the
Automotive Business (the "CONFIDENTIALITY AGREEMENTS"). Northrop Grumman and TRW
will take such actions under such Confidentiality Agreements and enforce TRW's
rights thereunder for the benefit of the Company as requested by the Company
from time to time, and upon request by BCP and to the
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extent permitted under each Confidentiality Agreement, TRW shall assign its
rights thereunder to the Company.
(e) Notwithstanding anything herein to the contrary, any party
to this Agreement (and any employee, representative, or other agent of any party
to this Agreement) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transactions contemplated
by this Agreement, and all materials of any kind (including opinions or other
tax analyses) related to such tax treatment and tax structure. Further, each
party hereto acknowledges that it has no proprietary rights to any tax treatment
or tax structure related to the transactions contemplated by this Agreement.
27. Amendment to Section 7.2(d). Section 7.2(d) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(d) split, combine, subdivide or reclassify its outstanding
shares of Capital Stock of the Company or declare, set aside or pay any dividend
or other distribution payable in cash, stock or property with respect to the
Capital Stock of the Company;
28. Amendment to Section 7.2(o). Section 7.2(o) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(o) make any payment to, or enter into any transaction with,
any Affiliate of any of Northrop Grumman, the TRW Asset Transferring Companies
or the TRW Equity Transferring Companies relating to the Automotive Business
other than arms-length transactions on commercially reasonable terms;
29. Amendment to Section 7.6. Section 7.6 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
7.6 Foreign Sales. Prior to the Northrop/TRW Closing,
Northrop Grumman shall, and shall use its reasonable best efforts, so far as is
permitted under the Northrop/TRW Merger Agreement, to cause TRW to, and
following the Northrop/TRW Closing, Northrop Grumman and TRW each shall, and
Parent shall, use, and cause their respective Affiliates to use, their
respective reasonable best efforts to prepare appropriate purchase agreements
(collectively, the "FOREIGN PURCHASE AGREEMENTS") and other necessary
documentation and to take such steps as are necessary to effectuate the sale of
all of the issued and outstanding Capital Stock of the Foreign Entities to the
Foreign Acquirors on or prior to the Closing Date in accordance with the
Acquisition Steps and the Laws of each relevant jurisdiction. BCP agrees that it
will take or shall cause the relevant Foreign Acquiror to take all steps
requested by Northrop Grumman to return the ownership of the relevant Foreign
Shares to TRW or one of its Subsidiaries, in the event that the transaction
contemplated by a Foreign Purchase Agreement is consummated and the remaining
transactions contemplated by this Agreement to occur on the Closing Date shall
not have occurred on the Closing Date. In the event of such return, BCP agrees
that it shall or shall cause the relevant Foreign Acquiror to return the
relevant Foreign Shares to the selling shareholder of the Foreign Shares for the
same consideration paid by the Foreign Acquiror. BCP further agrees to pay all
transfer taxes, fees and other costs relating to any such return to Northrop
Grumman. From time to time after the date hereof, BCP and Northrop Grumman shall
11
agree in good faith that sufficient steps have been taken so that all of the
issued and outstanding Capital Stock of one or more such Foreign Entities is
capable of being sold to the relevant Foreign Acquiror on the Closing Date under
the Laws of the foreign jurisdiction in which such entity is formed or domiciled
concurrently with the Closing of the other transactions contemplated by this
Agreement (each such Foreign Entity as to which such a determination is made
being referred to herein as an "AGREED FOREIGN ENTITY").
30. Amendment to Section 7.7(b). Section 7.7(b) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(b) Prior to the Northrop/TRW Closing, Northrop Grumman
shall, and shall use its reasonable best efforts, so far as is permitted under
the Northrop/TRW Merger Agreement, to cause TRW to, and following the
Northrop/TRW Closing, Northrop Grumman and TRW each shall, and Parent shall, use
their respective reasonable best efforts to obtain any Consent necessary under,
and ensure compliance with, any Environmental Law in connection with any of the
transactions contemplated by this Agreement; provided, however, that, without
limiting Parent's rights to indemnification under this Agreement, Northrop
Grumman and the TRW Transferring Companies shall not be required to take any
such actions that would, individually or in the aggregate, reasonably be
expected to impose any material remediation costs or expenses on Northrop
Grumman or any of the TRW Transferring Companies.
31. Amendment to Section 7.11. Section 7.11 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
7.11 Guarantees and Letters of Credit. BCP shall cause Parent
to use its reasonable best efforts to (i) substitute itself or an Affiliate for
TRW or a Subsidiary of TRW, as applicable, with respect to (and cause TRW or
such Subsidiary to be released from) the financial and performance guarantees
delivered by TRW or such Subsidiary of TRW prior to the Closing Date in
connection with the operation of the Automotive Business, each of which is
identified on Schedule 7.11, and (ii) cause to be issued letters of credit as
replacement letters of credit for ones issued by TRW or a Subsidiary of TRW
prior to the Closing Date in connection with the operation of the Automotive
Business, each of which is identified on Schedule 7.11; provided, however, that
the parties agree to cause Parent to indemnify and hold Northrop Grumman and TRW
harmless from and against any and all Losses resulting from any payment
following the Closing Date by TRW or any of its Subsidiaries under such
guarantees or letters of credit. Schedule 7.11 sets forth all of such financial
and performance guarantees and letters of credit that are outstanding as of the
date hereof. In the event that any shareholder in any entity identified in
Schedule 7.11A requires that TRW guarantee the performance of SMLLC or JVLLC as
the transferee of TRW's interest in such entity, then, at the option of TRW,
either (i) BCP shall cause Parent to provide such guarantee in the form required
by the agreement governing such entity, provided that such guarantee is
acceptable to such entity, or (ii) Northrop Grumman or TRW shall provide such
guarantee, and BCP shall cause Parent to indemnify and hold Northrop Grumman and
TRW harmless from and against any and all Losses incurred by Northrop Grumman or
TRW or any of their respective Subsidiaries arising out of such guarantee.
12
32. Amendment to Section 7.15. Section 7.15 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
7.15 Discharge of Indebtedness. No later than the Closing
Date, Northrop Grumman will discharge, and will cause each of its Subsidiaries
and Affiliates (other than the Company or any of its Subsidiaries) to discharge,
without cost to the Company or any of its Subsidiaries, any and all intercompany
accounts and all intercompany Contracts, except as otherwise provided by this
Agreement and the Ancillary Agreements. With respect to intra-company
Indebtedness of the Company and its Subsidiaries, prior to the Closing Date,
Northrop Grumman shall provide BCP the most recent available schedule listing
the debtor and creditor entities and the amount of such intra-company
Indebtedness, and Northrop Grumman shall discharge or cause to be discharged
prior to the Closing Date any such intra-company Indebtedness requested by BCP
to be discharged, provided that such discharge shall not cause any adverse tax
consequences or other costs to Northrop Grumman and its Affiliates that are not
indemnified by Parent pursuant to this Agreement.
33. Amendment to Section 7.19. Section 7.19 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
7.19 Transaction and Monitoring Fee Agreement. At the
Closing, Parent and Blackstone Management Partners IV L.L.C. shall execute and
deliver a Transaction and Monitoring Fee Agreement in the form attached hereto
as Exhibit F (the "TRANSACTION AND MONITORING FEE AGREEMENT").
34. Amendment to Section 7.20. Section 7.20 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
7.20 Agreed Assumed Indebtedness. Promptly following
execution of this Agreement, Northrop shall provide BCP with documentation and
other information concerning the items of Indebtedness reflected on the Summary
of Automotive Debt as of September 30, 2002 attached hereto as Schedule 7.20 or
other items of Indebtedness incurred pursuant to clause 2(o) of Schedule 7.2
(including, without limitation, the obligor and payee thereof, the interest rate
thereon and the amount of each such item currently outstanding, together with
accrued interest and all other amounts payable thereon) and any related
guarantees in respect thereof provided by TRW or one of its Subsidiaries (other
than the Company or one of its Subsidiaries). Northrop Grumman and BCP shall
discuss whether any such items of Indebtedness should be assumed or retained
(and any limits thereon) by the Company or one of its Subsidiaries, it being
understood that BCP shall not be required to agree to the assumption or
retention of any such items of Indebtedness for any reason, regardless of
whether such retention or assumption would be acceptable to the providers of the
Debt Financing. Prior to the Northrop/TRW Closing, Northrop Grumman shall, and
shall use its reasonable best efforts, so far as is permitted under the
Northrop/TRW Merger Agreement, to cause TRW to, and following the Northrop/TRW
Closing, Northrop Grumman and TRW each shall, continue to cause TRW to offer to
provide the Company and its Subsidiaries forward contracts of a type equivalent
to those set forth on Annex 5.2(d) to Schedule 5.2(d). Any such items of
Indebtedness that Northrop Grumman and BCP hereafter agree in writing will be
assumed or retained by the Company or one of its Subsidiaries shall constitute
"AGREED ASSUMED INDEBTEDNESS" for purposes of this Agreement and shall be
13
added to Schedule 12.1(a), and any such guarantees in support thereof shall,
pursuant to such written agreement, be added to part (i)(b) of Schedule 7.11 for
purposes of Section 7.11 hereof, it being agreed by Northrop Grumman and TRW
that each such additional guarantee shall be maintained by TRW for a period of
not less than seventy-five (75) days following the Closing Date. Any such items
of Indebtedness as to which such written agreement is not reached shall remain
an Excluded Liability for purposes hereof, and no such guarantees in support
thereof shall be added to Schedule 7.11.
35. Addition of Section 7.21. The Master Purchase Agreement is
hereby amended to add and incorporate the following Section 7.21:
7.21 ▇▇▇▇▇ Industries Options. The parties acknowledge that
any outstanding options under the ▇▇▇▇▇ Industries 1991 Employees' Savings
Related Share Option Scheme will likely cease to be exercisable by optionholders
after the Closing and in any event Northrop and BCP agree that following the
Closing they shall consult with each other and cooperate in order to pay, as
soon as practicable after the Closing (but in any event before 1 July 2003), to
any such optionholders any monies due to such optionholders as a result of such
options ceasing to be exercisable or otherwise in settling any claim any such
optionholder may have in relation to such options, in each case in as tax
efficient a manner as possible (consulting as necessary with the UK Inland
Revenue). Any monies that are payable to any such optionholders shall be paid by
Northrop to the extent that such payment relates to optionholders who are not
Automotive Business Employees and by Newco to the extent that such payment
relates to optionholders who are Auto Business Employees. In the event that
Northrop Grumman receives any shares of ▇▇▇▇▇-Varity in connection with the
payment to optionholders described in this section 7.21, Northrop Grumman agrees
to transfer such shares, without consideration, to Newco.
36. Addition of Section 7.22. The Master Purchase Agreement is
hereby amended to add and incorporate the following Section 7.22:
7.22 Access to Former Employees.
(a) After the Closing Date, Northrop Grumman will make
available to Newco and its Subsidiaries employees of TRW whom Newco and its
Subsidiaries may reasonably need in order to defend or prosecute any legal or
administrative action to which Newco and its Subsidiaries is a party and which
relates to the conduct of the Automotive Business prior to the Closing Date.
Newco or its Subsidiary will pay or reimburse TRW for all reasonable expenses
which may be incurred by such employees in connection therewith, including,
without limitation, all travel, lodging, and meal expenses, and Newco or its
Subsidiary will compensate TRW for the number of whole business days spent by
each such employee in providing such services at the rate of 130% of the average
daily gross pay per business day (excluding the value of employee benefits) of
such employee during the calendar month in which such services are performed.
(b) After the Closing Date, Newco or its Subsidiaries will
make available to Northrop Grumman and its Subsidiaries employees of Newco or
its Subsidiaries whom Northrop Grumman and its Subsidiaries may reasonably need
in order to defend or prosecute any legal or administrative action to which
Northrop Grumman and its Subsidiaries is a party and which
14
relates to the conduct of the Automotive Business prior to the Closing Date.
Northrop Grumman or its Subsidiary will pay or reimburse Newco or its Subsidiary
for all reasonable expenses which may be incurred by such employees in
connection therewith, including, without limitation, all travel, lodging, and
meal expenses, and Northrop Grumman or its Subsidiary will compensate Newco or
its Subsidiary for the number of whole business days spent by each such employee
in providing such services at the rate of 130% of the average daily gross pay
per business day (excluding the value of employee benefits) of such employee
during the calendar month in which such services are performed.
(c) On or prior to the dates set forth therein, Parent shall
cause Newco to deliver to Northrop Grumman letters in the forms attached hereto
as Exhibit J-1 and Exhibit J-2 dated as set forth therein, executed by the
appropriate officers of Newco as set forth therein with such changes therein as
the officer executing the same shall deem necessary.
37. Amendment to Section 8.2(c). Section 8.2(c) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(c) BCP shall have been furnished with certificates (dated
the Closing Date and in form and substance reasonably satisfactory to BCP)
executed by a principal executive officer and the chief financial officer of
each of Northrop Grumman, TRW and TRW Automotive, each certifying as to the
fulfillment of the conditions specified in Sections 8.2(a) and 8.2(b) hereof;
36. Amendment to Section 8.2(d). Section 8.2(d) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(d) except as set forth on Schedule 12.1(f), the Transfers
shall have been consummated in accordance with the terms of the Transfer
Documents;
38. Amendment to Section 8.2(h). Section 8.2(h) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(h) BCP shall have been furnished with a certificate from
Northrop Grumman in the form attached as Exhibit K; and
39. Amendment to Section 9.1(a). Section 9.1(a) of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
(a) stock certificates representing the Shares and the
Foreign Shares, or equivalent documentation of title in each relevant non-U.S.
jurisdiction, duly endorsed in blank or accompanied by stock transfer powers;
provided that BCP acknowledges and agrees that a delivery of such stock
certificates or equivalent documentation on the Closing Date to an agent of BCP,
in the relevant non-U.S. jurisdiction, pursuant to the Laws of the relevant
non-U.S. jurisdiction shall satisfy the requirements of this Section 9.1(a);
40. Addition of Section 10.1(d). The Master Purchase Agreement
is hereby amended to add and incorporate the following Section 10.1(d):
15
(d) The parties hereto acknowledge and agree that any
amendments, modifications or supplements to the Northrop Grumman Disclosure
Schedule after the date hereof, other than any such amendments, modifications or
supplements attached to a duly executed amendment to this Agreement, shall not
be deemed to qualify any representations, warranties or covenants of Northrop
Grumman, TRW or TRW Automotive for purposes of the indemnification obligations
of such parties under this Article X.
41. Amendment to Section 10.2(b). Section 10.2(b) of the
Master Purchase Agreement is hereby deleted and replaced in its entirety with
the following:
(b) Subject to the provisions of Section 3.2 and Article XI
and the terms of the ▇▇▇▇▇ Letter (as defined in Section 12.5) and the
indemnification provisions of any of the Ancillary Agreements, in each case with
respect to the matters covered thereby, the parties hereto agree that, following
the Closing, the indemnification and other provisions set forth in this Article
X will be the sole and exclusive remedy of Parent against Northrop Grumman, TRW
and TRW Automotive or their Affiliates, on the one hand, and of Northrop
Grumman, TRW and TRW Automotive and their Affiliates against Parent or the
Company and their Affiliates, on the other hand, arising out of this Agreement.
Notwithstanding the foregoing, nothing herein will eliminate the availability to
the parties of any equitable remedies with respect to any dispute that may arise
under this Agreement or limit any claim based upon fraud.
42. Amendment to Section 11.10. Section 11.10 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
11.10 Other Provisions. The provisions of this Article XI
(and not Article X) will exclusively govern all indemnity claims with respect to
Tax matters of the Company and its Subsidiaries and the purchase of the Shares
and the Foreign Shares pursuant to this Agreement and, for the avoidance of
doubt, any limitations under Article X on a party's indemnification obligations
will not apply to any indemnification under this Article XI. Notwithstanding
anything to the contrary in this Agreement (including Article X), none of the
representations or warranties set forth in Section 5.4, or anything else in this
Agreement, will cause Northrop Grumman or TRW to be liable for any Taxes or
Losses relating to Taxes for which Northrop Grumman or TRW is not otherwise
expressly liable pursuant to Section 11.1(a).
43. Amendment to Section 11.11. Section 11.11 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
11.11 Characterization of Payments. Except for any amount
required to be treated for Tax purposes as interest, all indemnity payments
under Article X and under this Article XI and all payments required to be made
under Section 3.2 of this Agreement will be treated as an adjustment to the
purchase price paid for the Shares and the Foreign Shares for tax purposes.
44. Addition of Section 11.13. The Master Purchase Agreement
is hereby amended to add and incorporate the following Section 11.13:
11.13 Purchase Price Allocation. With respect to the
consideration allocated to the LLC Interests pursuant to Section 3.1, Parent
shall reasonably determine the fair market
16
value of the assets of SMLLC and JVLLC and shall allocate the relevant portion
of the Purchase Price among such assets in accordance with Section 1060 of the
Code. Parent shall provide the allocation to Northrop Grumman no later than
Parent provides the Section 338 Allocation to Northrop Grumman under Section
11.5(c), and Northrop Grumman shall provide reasonable comments thereon to
Parent within 30 days of receipt thereof. The parties shall attempt in good
faith to resolve any unagreed items with respect to such allocation and if they
are unable to do so, such unagreed items will be resolved (within a reasonable
time) by an internationally recognized independent accountng firm chosen by both
Northrop Grumman and Parent. Northrop Grumman, the Company and Parent shall file
all Tax Returns consistently with the allocation under this Section 11.13.
45. Amendment to Section 12.1. The following definitions
contained in Section 12.1 of the Master Purchase Agreement are hereby deleted
and replaced in their entirety with the following:
"AUTOMOTIVE BUSINESS" shall mean the business of designing,
manufacturing and selling steering, suspension, braking, engine, safety,
electronic, engineered fastening and other components and systems for passenger
cars, light trucks and commercial vehicles, including inflatable restraint, seat
belt and steering wheel components and systems; braking components systems and
related products; steering and suspension systems and components; chassis
components modules and integrated vehicle control systems; vehicle dynamic
control systems and electronics; access, security and safety electronics
systems; display and heating, ventilating and air conditioning electronics;
engineered and plastic fasteners and precision plastic moldings and assemblies;
engine components and systems; commercial steering systems and components; and
aftermarket operations, including parts, service and technical and diagnostic
support, as such businesses are or have been conducted by TRW and certain of its
Subsidiaries and the Automotive Affiliates, which shall include those divisions
of TRW identified on Schedule A to Annex I.
"CASH CONTRIBUTION" shall have the meaning ascribed to such
term in the Section 1.1(b).
"CONFIDENTIALITY AGREEMENTS" shall have the meaning ascribed
to such term in Section 7.1(d).
"DELAYED EQUITY INTERESTS" shall mean the equity interests of
the Transferred Entities held by TRW or its Subsidiaries which are set forth on
Schedule 12.1(f).
"EQUITY INTERESTS" shall mean all of the equity interests of
the Transferred Entities held by TRW or its Subsidiaries.
"EXCLUDED ASSETS" shall mean any and all of the following
(other than Equity Interests), but only to the extent not included in the Final
Closing Statement for purposes of the Final Closing Balance Sheet:
(i) the TRW Intellectual Property subject to the Intellectual
Property License Agreements;
17
(ii) all causes of action, judgments, claims, reimbursements
and demands, of whatever nature (including rights under and pursuant to all
warranties, representations and guarantees made by suppliers of products,
materials or equipment, or components thereof), in favor of any TRW Asset
Transferring Company to the extent primarily related to the Excluded Assets or
the Excluded Liabilities;
(iii) any claims under insurance policies maintained by any of
the TRW Asset Transferring Companies to the extent primarily related to the
Excluded Assets or Excluded Liabilities or to the extent allocated to the TRW
Asset Transferring Companies pursuant to the Insurance Allocation Agreement;
(iv) the Koyo Joint Venture; and
(v) such other rights, properties and assets set forth on
Schedule 12.1(c) hereto.
"FOREIGN PURCHASE AGREEMENTS" shall have the meaning ascribed
to such term in Section 7.6.
"INO CAPITAL STOCK" shall have the meaning ascribed to such
term in the recitals.
"JVLLC" shall have the meaning ascribed to such term in the
recitals.
"KOREAN SALE NOTE" shall mean a promissory note, in form and
substance reasonably satisfactory to Northrop Grumman, in the amount set forth
in the Purchase Price Allocation Schedule for the sale of TRW Controls &
Fasteners Inc.
"KOYO JOINT VENTURE" shall mean the 51% partnership interest
in TRW Koyo Steering Systems Company, a Tennesee general partnership, held by JV
Holding Corp.
"▇▇▇▇▇ LETTER" shall have the meaning ascribed to such term in
Section 12.5.
"NEWCO UK" shall have the meaning ascribed to such term in
Section 1.1(b).
"TRANSFERRED ENTITIES" shall mean VSSI, SMLLC, JVLLC,
Holdings, ▇▇▇▇▇-Varity, TRW UK, INO, Ruling Newco and all of the entities set
forth on the Schedules to Annexes I & II.
"TRW ASSET TRANSFERRING COMPANIES" shall mean TRW and certain
of its direct and indirect Subsidiaries that are (i) transferring Automotive
Assets and Automotive Liabilities to the Company and its Subsidiaries and (ii)
not part of the Company and its Subsidiaries upon Closing.
"TRW EQUITY TRANSFERRING COMPANIES" shall mean TRW and certain
of its direct and indirect Subsidiaries that are (i) transferring Equity
Interests to the Company and its Subsidiaries and (ii) not part of the Company
and its Subsidiaries upon Closing.
18
"TRW PARTICIPANTS" shall mean TRW, TRW Automotive, any other
TRW Transferring Companies and the Transferred Entities.
"VSSI CAPITAL STOCK" shall have the meaning ascribed to such
term in the recitals."
46. Amendment to Section 12.2. Section 12.2 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
12.2 Interpretation. For the purposes of this Agreement, (i)
words in the singular will be held to include the plural and vice versa and
words of one gender shall be held to include the other gender as the context
requires, (ii) the terms "hereof," "herein," and "herewith" and words of similar
import shall, unless otherwise stated, be construed to refer to this Agreement
as a whole and not to any particular provision of this Agreement, (iii) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless otherwise specified, (iv) the word "or"
shall not be exclusive and (v) the word "parties" will be held to include
Northrop Grumman and BCP and, on and following the TRW Execution Date, TRW and
TRW Automotive.
47. Amendment to Section 12.3. Section 12.3 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
12.3 Costs and Expenses. Except as otherwise provided in this
Agreement, Northrop Grumman, TRW and TRW Automotive, and BCP shall each bear its
own costs and expenses incurred in connection with the negotiation and execution
of this Agreement and each other agreement, document and instrument contemplated
by this Agreement and the consummation of the transactions contemplated hereby
and thereby, it being understood that in no event shall the Company bear any of
such costs and expenses incurred by Northrop Grumman or TRW and TRW Automotive.
For the avoidance of doubt, BCP shall bear responsibility for all notary fees
and similar costs and expenses incurred in connection with the sales of the
Foreign Entities.
48. Amendment to Section 12.5. Section 12.5 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with the
following:
12.5 Entire Agreement; Amendments and Waivers. This Agreement
(including the Northrop Grumman Disclosure Letter and exhibits and schedules
hereto), the Confidentiality Agreement, the other Ancillary Agreements, the
letter referred to in Section 5.16(b), the letter agreement dated the date
hereof between Northrop Grumman and BCP, the Foreign Purchase Agreements, the
letter agreement dated as of February 5, 2003 between Northrop Grumman and BCP
(relating to the ▇▇▇▇▇ ▇▇▇▇) (the "▇▇▇▇▇ LETTER"), the letter agreement dated as
of February 27, 2003 between Northrop Grumman and BCP (relating to TRW Koyo
Steering Systems Company) and the letter agreement dated as of February 28, 2003
between Northrop Grumman and BCP (relating to the Agreed Assumed Indebtedness)
represent the entire understanding and agreement and supersede all prior
agreements and understandings, oral or written, between the parties hereto with
respect to the subject matter hereof and can be amended, supplemented or
changed, and any provision hereof can be waived, only by written instrument
19
making specific reference to this Agreement signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
No action taken pursuant to this Agreement, including any investigation by or on
behalf of any party, will be deemed to constitute a waiver by the party taking
such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder will operate as a waiver
thereof, nor will any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER NORTHROP GRUMMAN NOR TRW MAKES ANY
REPRESENTATION OR WARRANTY CONCERNING THE AUTOMOTIVE ASSETS AND EQUITY INTERESTS
OR THE AUTOMOTIVE BUSINESS, INCLUDING AS TO THE QUALITY, CONDITION,
MERCHANTABILITY, SALABILITY, OBSOLESCENCE, WORKING ORDER OR FITNESS FOR A
PARTICULAR PURPOSE THEREOF. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ASSETS ARE
SOLD PURSUANT HERETO "AS IS AND WHERE IS."
49. Amendment to Annex I. Annex I of the Master Purchase
Agreement is hereby deleted and replaced in its entirety with Annex I to this
Amendment No. 2.
50. Amendment to Annex II. Annex II of the Master Purchase
Agreement is hereby deleted and replaced in its entirety with Annex II to this
Amendment No. 2.
51. Amendment to Schedule 1.1. Schedule 1.1 of the Master
Purchase Agreement is hereby deleted and replaced in its entirety with Schedule
1.1 to this Amendment No. 2.
52. Amendment to Schedule 1.1(b)(vi). Schedule 1.1(b)(vi) of
the Master Purchase Agreement is hereby deleted and replaced in its entirety
with Schedule 1.1(b)(vi) to this Amendment No. 2.
53. Amendment to Schedule 1.1(c)(ii). Schedule 1.1(c)(ii) of
the Master Purchase Agreement is hereby deleted and replaced in its entirety
with Schedule 1.1(c)(ii) to this Amendment No. 2.
54. Amendment to Schedule 1.1(c)(iii). Schedule 1.1(c)(iii) of
the Master Purchase Agreement is hereby deleted and replaced in its entirety
with Schedule 1.1(c)(iii) to this Amendment No. 2.
55. Addition of Schedule 7.11A. The Master Purchase Agreement
is hereby amended to add and incorporate Schedule 7.11A to this Agreement.
56. Addition of Schedule 12.1(f). The Master Purchase
Agreement is hereby amended to add and incorporate Schedule 12.1(f) to this
Agreement.
20
57. Amendment to Schedule 5.2(c) of the Northrop Grumman
Disclosure Letter. Schedule 5.2(c) of the Northrop Grumman Disclosure Letter is
hereby deleted and replaced in its entirety with Schedule 5.2(c) to this
Amendment No. 2.
58. Amendment to Schedule 5.2(d) of the Northrop Grumman
Disclosure Letter. Schedule 5.2(d) of the Northrop Grumman Disclosure Letter is
hereby amended by deleting Annex 5.2(d) thereof in its entirety and substituting
in place thereof the Annex 5.2(d) attached to Schedule 5.2(d) to this Amendment
No. 2.
59. Amendment to Schedule 5.7 of the Northrop Grumman
Disclosure Letter. Schedule 5.7 of the Northrop Grumman Disclosure Letter is
hereby deleted and replaced in its entirety with Schedule 5.7 to this Amendment
No. 2.
60. Amendment to Exhibit C - Employee Matters Agreement.
Exhibit C of the Master Purchase Agreement is hereby deleted and replaced in its
entirety with Exhibit C to this Amendment No. 2.
61. Addition of Exhibits J-1 and J-2 - Representation Letters.
The Master Purchase Agreement is hereby amended to add and incorporate Exhibits
J-1 and J-2 to this Agreement.
62. Addition of Exhibit K - ▇▇▇▇▇ ▇▇▇▇ Certificate. The Master
Purchase Agreement is hereby amended to add and incorporate Exhibit K to this
Agreement.
SECTION II
MISCELLANEOUS
1. No Other Amendments; Effectiveness. Except as set forth in
this Amendment No. 2, the Master Purchase Agreement is ratified and confirmed in
all respects. This Amendment No. 2 shall be effective as of the date hereof.
2. Governing Law. This Amendment No. 2 shall be governed by
and construed in accordance with the laws of the State of Delaware.
3. Counterparts. This Amendment No. 2 may be executed by the
parties in any number of separate counterparts (including by facsimile
transmission) and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
[signature page follows]
21
IN WITNESS WHEREOF, the undersigned has duly executed this
Amendment No. 2 as of the date first above written.
NORTHROP GRUMMAN CORPORATION
By: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Vice President &
Treasurer
NORTHROP GRUMMAN
SPACE & MISSION SYSTEMS CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Vice President &
Treasurer
TRW AUTOMOTIVE INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and General Counsel
BCP ACQUISITION COMPANY L.L.C.
By: BLACKSTONE CAPITAL PARTNERS IV L.P.,
its Sole Member
By: BLACKSTONE MANAGEMENT ASSOCIATES IV
L.L.C.,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Member