Amendment to Asset Purchase Agreement between Raytheon Company and L-3 Communications Corporation (March 8, 2002)
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Raytheon Company and its subsidiary Raytheon Australia have amended their Asset Purchase Agreement with L-3 Communications Corporation, originally dated January 11, 2002. The amendment adds L-3 Communications Integrated Systems L.P. and L-3 Communications Australia Pty Ltd. as buyers, clarifies which assets and liabilities each party will assume, and updates various schedules and exhibits related to employee retention, supply agreements, subcontracting, and transition services. The amendment also specifies how certain liabilities and responsibilities are allocated among the parties. All other terms of the original agreement remain in effect.
EX-10.60 18 file017.txt EV AMENDMENT TO ASSET PURCHASE AGREEMENT RAYTHEON COMPANY 141 SPRING STREET LEXINGTON, MASSACHUSETTS 02421 March 8, 2002 L-3 Communications Corporation 600 Third Avenue New York, New York 10016 Attention: Christopher C. Cambria, Esq. Vice President, Secretary and General Counsel Ladies and Gentlemen: Reference is hereby made to the Asset Purchase Agreement, dated as of January 11, 2002 (the "Agreement"), among Raytheon Company, a Delaware corporation ("Raytheon"), Raytheon Australia Pty Ltd., a corporation organized under the laws of Australia and a wholly-owned subsidiary of Raytheon ("Raytheon Australia") (Raytheon and Raytheon Australia are each individually referred to herein as a "Seller" and are collectively referred to herein as the "Sellers"), and L-3 Communications Corporation, a Delaware corporation (the "Buyer"). Defined terms used herein without definition have the meanings given them in the Agreement. The Sellers and the Buyer have agreed to amend the Agreement and certain Exhibits and Schedules in order to amend certain provisions thereof relating to, among other things, the retention of employees, the ASTOR Subcontract and transition services. Accordingly, the Parties are entering into this letter agreement to reflect such amendments. This letter will confirm the agreement of the Parties as follows: I. Amendments 1.1. Additional Buyers. (a) In accordance with Section 11.4 of the Agreement, L-3 Communications Corporation contemporaneously herewith has assigned its rights, interests and obligations under the Agreement to L-3 Communications Integrated Systems L.P., a Delaware limited partnership and a wholly-owned subsidiary of L-3 Communications Corporation (the "L-3 U.S. Subsidiary"), and to L-3 Communications Australia Pty Ltd., a corporation organized under the laws of Australia and a wholly-owned subsidiary of L-3 Communications Corporation (the "L-3 Australian Subsidiary"). The L-3 U.S. Subsidiary and the L-3 Australian Subsidiary shall from and after the date of this letter agreement each be considered a "Buyer" for purposes of the Agreement, and shall be subject to the rights and obligations of the Buyer under the Agreement, L-3 Communications Corporation March 8, 2002 from and after the date of this letter agreement. L-3 Communications Corporation hereby acknowledges that such assignment shall not relieve it of its obligations to the Sellers under the Agreement. (b) At the Closing, (i) the L-3 Australian Subsidiary shall acquire all of the Acquired Assets which are owned or held by Raytheon Australia as of the Closing (the "Australian Acquired Assets") and shall assume and agree to pay, perform and discharge when due all Assumed Liabilities of Raytheon Australia as of the Closing (the "Australian Assumed Liabilities") and (ii) the L-3 U.S. Subsidiary shall acquire all of the Acquired Assets other than the Australian Acquired Assets and the Real Estate Leases, which leases shall be acquired by L-3 Communications Corporation (the "U.S. Acquired Assets"), and shall assume and agree to pay, perform and discharge when due all Assumed Liabilities other than the Australian Assumed Liabilities and the Real Estate Leases, which leases shall be assumed by L-3 Communications Corporation (the "U.S. Assumed Liabilities"). The parties to the Ancillary Agreements to be executed pursuant to Section 1.3(b) of the Agreement shall be appropriately revised to reflect the terms of this Section 1.1(b) and, where appropriate, more than one version of an Ancillary Agreement, with different parties thereto, shall be executed. (c) Section 3.1 is hereby amended and restated in its entirety to read as follows: "3.1 Organization. L-3 Communication is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware. The L-3 U.S. Subsidiary is a limited partnership duly organized, validly existing and in good standing under the laws of the state of Delaware. The L-3 Australian Subsidiary is a corporation duly organized and validly existing under the laws of Australia." (d) Any notice, request, demand, claim or other communication required to be delivered under the Agreement to or by the Buyer shall be deemed delivered to or by the Buyer if it is delivered, in accordance with the terms of Section 11.5 of the Agreement, to or by, respectively, L-3 Communications Corporation. Any consent or waiver required of the Buyer under the Agreement shall be deemed given by the Buyer if it is given in writing by L-3 Communications Corporation. 1.2. Retained Employees. Schedule 9.1 of the Agreement is amended and restated in its entirety to read as set forth on Exhibit A hereto. With respect to the addition of Gary Arnold to the list of Retained Employees set forth on Schedule 9.1, the Parties hereby agree to the following additional amendments: (a) The "Letter Agreement dated October 23, 2001 between Raytheon Company and Gary Arnold" is hereby deleted from Schedule 2.12 to the Agreement. L-3 Communications Corporation March 8, 2002 (b) The reference to Gary Arnold, his position and his annual rate of compensation is hereby deleted from Schedule 2.16 to the Agreement. (c) The reference to Gary Arnold and his position is hereby deleted from Schedule 10.12 to the Agreement. (d) The "Letter Agreement dated October 23, 2001 between Raytheon Company and Gary Arnold" is hereby deleted from Section 2.5(d) of the Schedule of Exceptions. 1.3. Section 7.2. (a) Section 7.2(b) is hereby amended and restated in its entirety to read as follows: "(b) any failure by the Buyer to perform any covenant or agreement contained in this Agreement or the Ancillary Agreements, other than the Subcontract Agreement between Raytheon Systems Limited and the Buyer attached hereto as Exhibit M; or" (b) The following sentence is added as a new sentence at the end of Section 7.2: "The Parties agree that the responsibility for any liabilities or costs that are covered by Condition 9(b) of the Subcontract Agreement between Raytheon Systems Limited and the Buyer attached hereto as Exhibit M shall be allocated as set forth in such Subcontract and are not covered by this Article VII." 1.4. Assignment and Assumption of Leases. Exhibit D (Assignment and Assumption of Leases) to the Agreement is hereby amended to add E-Systems Technologies Holding, Inc., a Delaware corporation, as an "Assignor" and signatory under such Exhibit D. 1.5. Supply Agreement Amendments. (a) Appendix E of Exhibit G (Supply Agreement - Raytheon as Customer) to the Agreement is amended and restated in its entirety to read as set forth on Exhibit B hereto. (b) Exhibit K (Supply Agreement - Raytheon Systems Canada, Ltd. as Supplier) to the Agreement is hereby amended to reflect the correct name of the Supplier: Raytheon Canada Limited. (c) Appendix D of Exhibit J (Supply Agreement - Thales-Raytheon Systems Co., LLC as Supplier) to the Agreement is amended and restated in its entirety to read as set forth on Exhibit G hereto. (d) Appendix F of Exhibit F (Supply Agreement - Raytheon as Supplier) to the Agreement is amended and restated in its entirety to read as set forth on Exhibit H hereto. L-3 Communications Corporation March 8, 2002 (e) Page 1 of Appendix D of Exhibit H (Supply Agreement " Raytheon Technical Services Company as Supplier) to the Agreement is amended and restated in its entirety to read as set forth on Exhibit I hereto. 1.6. ASTOR Subcontract. Exhibit M (Subcontract Agreement with Raytheon Systems Limited) to the Agreement is hereby amended as set forth on Exhibit C hereto. 1.7. Transition Services. Schedule I, Schedule II and Schedule III of Exhibit Q (Transition Services Agreement) to the Agreement are amended and restated in their entirety to read as set forth on Exhibit D hereto. The Agreement is hereby amended by adding Exhibit S (Transition Services Agreement) to the Agreement in the form attached hereto as Exhibit E, such Exhibit S to document the agreement relating to transition services between Raytheon Australia and L-3 Communications Australia Pty Ltd. and to be executed at the Closing. 1.8. Australian Issues. The Parties agree as set forth on Exhibit F hereto with respect to certain Australian issues. 1.9. Schedule 2.12. The Parties agree that section (a)(ii) of Schedule 2.12 to the Agreement is amended and restated in its entirety to read as set forth on Exhibit J hereto. 1.10. Section 9.4. Section 9.4 of the Agreement is hereby amended by the addition of the following at the end thereof: "The monthly benefit rate used to calculate benefits from Raytheon under the Retirement Plan for Hourly Employees of the Greenville Division of E-Systems, Inc., of which Raytheon is the plan sponsor (the "Plan") shall be the rate in effect as of the earlier of the date the participant retires under the Plan and the date the participant terminates employment from the Buyer. Such rate shall never exceed $36.00 even though monthly rates negotiated in subsequent collective bargaining agreements by the Buyer and its successors may be higher." 1.11. Section 10.4. Section 10.4 of the Agreement is hereby amended by the addition of the following at the end thereof: "Without limiting the foregoing, the Buyer shall use commercially reasonable efforts (in accordance with the standards set forth in Section 4.2) to arrange, as promptly as practicable, for replacement arrangements (which shall include a full and complete release of each Seller and their respective Affiliates), with respect to the following Seller Guarantees: Performance Corporate Guarantee No. 2490 issued on November 2, 2001 by Raytheon Company for benefit of Empresa Brasileira de Aeronautica S.A. (EMBRAER) in the amount of U.S.$ 10,728,592; and Performance Corporate Guarantee No. 2491 issued on November 2, 2001 by Raytheon Company for benefit of Empresa Brasileira de Aeronautica S.A. (EMBRAER) in the amount of U.S.$ 3,576,197. If the Buyer is unable to effect such replacement arrangements within 30 days following the Closing Date, the Buyer shall, for either or both of such Seller Guarantees which have not been replaced, deliver to Raytheon, on such 30th day, an irrevocable, unconditional standby letter of credit in favor of Raytheon in an amount equal to the amount of such Seller Guarantee or Guarantees, issued by a bank rated A or better by Standard & Poor"s, in form and substance reasonably satisfactory to Raytheon." L-3 Communications Corporation March 8, 2002 1.12. Bank Account. Raytheon and the Buyer hereby agree (notwithstanding anything to the contrary in the Agreement) that (i) Fleet Bank Account No. 27852796 (the "Account"), which is owned and operated by Raytheon, shall be transferred by Raytheon to the Buyer as part of the transactions effected at the Closing and the Buyer shall honor all checks written on the Account which are outstanding as of the Closing and the amount of all such checks shall be Assumed Liabilities; (ii) Raytheon shall, on Monday, March 11, 2002, transfer, by wire transfer of immediately available funds, $18,638,589.82 into the Account (which amount represents the estimated amount of the overdraft of the Account as of the Closing Date), which funds (and any other funds therein) shall become property of the Buyer pursuant to this Agreement and shall be Acquired Assets; (iii) Raytheon shall issue checks as directed by the Buyer (including made payable to the Buyer, if so requested) from Saudi American Bank Account No. 132-3458 from time to time in an aggregate amount not to exceed 375,000 Saudi Riyads; and (iv) the Purchase Price and the Target Net Tangible Book Value shall be increased to $1,148,738,589.82 and $493,938,589.82, respectively. II. Miscellaneous 2.1. Except as amended as provided above, the Agreement remains in full force and effect and binding on the Parties in accordance with its terms. 2.2. This letter agreement (including the documents referred to herein) together with the Agreement (as amended hereby and including all documents referred to therein), constitutes the entire agreement among the Buyer, on the one hand, and the Sellers on the other hand, and supersedes any prior agreements or understandings among the Buyer, on the one hand, and the Seller, on the other hand, and any representations or statements made by or on behalf of any Seller or any of their respective Affiliates to the Buyer, whether written or oral, with respect to the subject matter hereof, other than the Confidentiality Agreement. This letter agreement shall not be amended or waived except by a written instrument hereafter signed by each of the Parties hereto. 2.3. This letter agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns and, to the extent specified herein or in the Agreement, their respective Affiliates. 2.4. The language used in this letter agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party. 2.5. THIS LETTER AGREEMENT AND ANY DISPUTES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE L-3 Communications Corporation March 8, 2002 THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF DELAWARE. 2.6. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. This letter agreement may be executed by facsimile signature. L-3 Communications Corporation March 8, 2002 Please sign where indicated below to confirm that the foregoing accurately reflects our agreement. Very truly yours, RAYTHEON COMPANY By: ------------------------------------------- Name: Title: RAYTHEON AUSTRALIA PTY LTD. (pursuant to S127(1) of the Corporations Act 2001 (C"th)) By: ------------------------------------------- Name: Title: By: ------------------------------------------- Name: Title: ACCEPTED AND AGREED: L-3 COMMUNICATIONS CORPORATION By: -------------------------- Name: Title: L-3 Communications Corporation March 8, 2002 L-3 COMMUNICATIONS INTEGRATED SYSTEMS L.P. By: L-3 Communications AIS GP Corporation its general partner By: ---------------------------------------- Name: Title: L-3 COMMUNICATIONS AUSTRALIA PTY LTD. (pursuant to S127(1) of the Corporations Act 2001 (C'th)) By: ---------------------------------------- Name: Title: By: ---------------------------------------- Name: Title: Exhibit A to ------------ Letter Agreement ---------------- Schedule 9.1 to --------------- Asset Purchase Agreement ------------------------ Retained Employees ------------------ Richard R. Anderson Gary Arnold Bob Bearden Mona R. Collins Susie Fleming Roy Larsen Anthony O"Brien Thomas Wheeler Vince McKenzie Kent Wong Kevin Hennabry Mike Romanczuk Exhibit B to ------------ Letter Agreement ---------------- Appendix E of Supply Agreement (Raytheon as Customer) ----------------------------------------------------- Exhibit C to ------------ Letter Agreement ---------------- Exhibit M (Subcontract Agreement with Raytheon Systems Limited) to the Agreement is hereby amended as follows: On the cover page (Page 1), "36599N" is hereby inserted after "SUBCONTRACT NUMBER." Immediately after the words "FOR THE" insert the words "WORK AS DESCRIBED HEREIN ON THE ASTOR PROGRAMME." On page 2, in the first line, the Effective Date shall be 8 March 2002. In Paragraph 12 (Page 3), the words "This Subcontract shall be effective on the date last written and signature by both parties hereto providing" is hereby deleted in its entirety. In addition, at the end of what was the third line of that paragraph, the words "have been" are hereby replaced by the words "shall be." In Condition 1, for the definition of "Design Authority" (Page 8), "[______]" is hereby deleted and replaced with "05-123 Chapter 101". In Condition 3 (Pages 13-14), that entire provision is deleted in its entirety and replaced with the new Condition 3 set out in Exhibit C-1 hereto. In Condition 8(a) (Page 19), the reference to $108,760,957 and the subsequent bracketed note is replaced with "the dollar amount indicated as the total of the column entitled "Price" in Condition 3, as that amount may be adjusted by the Contractor in accordance with the provisions in Condition 3." In Condition 8 (page 19), the following new paragraph 8(b)(ii) is inserted in place of the existing paragraph 8(b)(ii): "the "Direct Cost of Materials" (as defined below) and work subcontracted by the Subcontractor; as used above, the term "Direct Cost of Materials" shall mean the purchase cost of materials, plus the following: (x) the customary material burden rates of the Subcontractor as applied to the purchase cost of materials, and (y) the customary general and administrative expense rates of the Subcontractor as applied only to the material burden. The foregoing rates shall be determined in accordance with the standards and practices under the Raytheon Company Aircraft Integration Systems Segment Cost Accounting Standards Board Disclosure Statement (or any government approved successor thereto) in effect at the time the materials are purchased." In Condition 9 (page 21), the following new paragraph 9(b) is added, and the existing paragraph (b) is relabeled as paragraph (c): "Contractor and Subcontractor recognize and agree that until Design Authority is transferred to Contractor, as required by this Subcontract, Subcontractor will act as Design Authority for the ASTOR System. Such transfer of Design Authority for the ASTOR System shall be in accordance with this Subcontract, including without limitation the Statement of Work contained in Annex G, but in any event shall occur when agreed and approved by the Authority. Regardless of whether Contractor or Subcontractor is acting as Design Authority for the ASTOR System, in the event that the ASTOR System or any sub-system, component, parts or equipment thereof fails to meet the required ASTOR System performance specification or other requirement: (i) due to (1) Contractor's delivery of CFR (including CFR delivered by third-party subcontractors) that do not meet the requirements of the applicable CFR specification and Annex G hereto or (2) erroneous or incomplete designs or specifications for the ASTOR System or any sub-system, component, parts or equipment thereof provided by Contractor or any of its affiliates (other than Subcontractor or its predecessor, i.e., the AIS Business as defined in the asset purchase agreement dated 11 January 2002 between Raytheon Company, Raytheon Australia Pty. Ltd. and L-3 Communications Corporation ("Predecessor")), then Contractor shall bear the full cost of (A) reasonable time spent by Subcontractor in determining that such failure to meet the required ASTOR System performance specification or other requirement was due to the cause described in this part (i); (B) obtaining replacement CFR that meets those requirements or, at Contractor's sole option, identifying and implementing alternative system or other sub-system level solutions; (C) compensating Subcontractor for additional expenses and/or labour costs incurred in the delays resulting from the need to obtain replacement CFR and/or reperform services with respect to such replacement CFR; and (D) any other liabilities therefor. If Subcontractor incorrectly claims that Contractor is responsible for costs pursuant to this part (i), then Subcontractor shall reimburse Contractor for its costs resulting from such claim. (ii) due to erroneous or incomplete designs or specifications for the ASTOR System or any sub-system, component, parts or equipment thereof (except for those sub-systems identified in part (iii) below) provided by Subcontractor or its Predecessor occurring before the Effective Date, then Contractor and Subcontractor shall work together in order to minimize the costs to be incurred, to the extent technically feasible and in a manner consistent with the Authority's instructions, where relevant, (individually and/or jointly) with respect to (A) reasonable time spent in determining that such failure to meet the required ASTOR System performance specification or other requirement was due to the cause described in this part (ii); (B) (i) redesigning and respecifying the ASTOR System or any such sub-system, component, parts or equipment which were both designed and specified by Subcontractor or its Predecessor and (ii) respecifying (but not redesigning) the ASTOR System or any such sub-system, component, parts or equipment which were specified (but not designed) by Subcontractor or its Predecessor; (C) (i) redesigning (but not respecifying) the ASTOR System or any such sub-system, component, parts or equipment which were specified (but not designed) by Subcontractor or its Predecessor and (ii) whether or not designed by Subcontractor or its Predecessor, modifying all CFR or manufacturing new CFR; (D) causing other subcontractors or third parties to modify CFR or manufacture new CFR; (E) additional expenses and/or labour costs incurred by either Contractor or Subcontractor in the delays resulting from the actions described in (A), (B), (C) and (D) above (including without limitation the payment of liquidated damages to any third parties) and then reperforming services with respect to such replacement designs, specifications and/or CFR; and (F) any other liabilities therefor. Any work or rework, including redesign undertaken by the Subcontractor pursuant to this part (ii) and any reimbursement of costs thereof shall be subject to the procedures set forth in Condition 31 below, except that the third sentence of Condition 31(b) shall not apply. Subcontractor shall bear all its costs incurred under part (ii)(A) and (B) hereof, and reasonable costs incurred by Contractor in providing any assistance requested by Subcontractor in connection therewith. Contractor and Subcontractor further agree that the aggregate costs incurred by them, either individually or jointly, under part (ii)(C), (D), (E) and (F) hereof shall be divided equally between them on the basis of Contractor being responsible for fifty percent (50%) of those costs and Subcontractor being responsible for the remaining fifty percent (50%) of those costs; provided, however, that for the aggregate costs incurred under part (ii)(C), (D), (E) and (F) in excess of Forty Million Dollars (US$40,000,000), Contractor shall be 100% responsible for such costs (i.e., Subcontractor"s maximum costs incurred under part (ii)(C), (D), (E) and (F) shall not exceed Twenty Million Dollars (US$20,000,000). On a calendar quarterly basis, each party shall report to the other party its costs incurred under part (ii)(C), (D), (E) and (F) during such quarter, with appropriate supporting documentation as required in Condition 31 below; provided, however, that Contractor shall only be required to provide such reports until such aggregate amount is reached. To the extent Contractor provides to Subcontractor financial data in such reports, Subcontractor agrees that it will treat such data as confidential and will restrict access to such data to the same extent that Contractor has agreed to similar protections in Condition 41(e) below with respect to Subcontractor's financial data. If, prior to the time that such aggregate amount is reached, one party (the "first party") incurred (whether individually or jointly with the other party) during such quarter a percentage of those costs greater than the percentage for which it is responsible, the other party (the "second party") shall, within ten (10) days after a written request from the first party, pay whatever amount to the first party that is necessary in order to reduce the first party's costs to the percentage of those costs that is envisioned in the cost sharing percentages stated above. To the extent that liquidated damages would otherwise be recoverable by Contractor in accordance with Condition 19 below due to delays described in this part (ii), such liquidated damages shall not be recoverable by Contractor and this Condition 9(b)(ii) constitutes an express written waiver of Contractor's right to recover such liquidated damages, for the purposes of Condition 19(e) below. If either Contractor or Subcontractor incorrectly claims that the other party is responsible for costs pursuant to this part (ii), then the claiming party shall reimburse the other party for such other party's costs resulting from such claim. (iii) due to erroneous or incomplete designs or specifications provided by Subcontractor for those sub-systems awarded to other subcontractors by either Contractor or Subcontractor after the Effective Date (including without limitation related Subcontractor designs and specifications), then Subcontractor shall be 100% responsible for the types of costs described in part (ii)(A), (B), (C), (D), (E) and (F) above. Contractor and Subcontractor agree that if Contractor or an affiliate of Contractor is required to pay, or assume responsibility for, any amounts or liabilities pursuant to this Condition 9(b)(ii), the Purchase Price under the Asset Purchase Agreement of even date herewith by and among Raytheon Company, Raytheon Australia Pty Ltd. and Subcontractor (the "Asset Purchase Agreement") shall be deemed reduced for all purposes of the Asset Purchase Agreement by such additional amounts or liabilities." In Condition 14(d) (page 28), the following phrase is added at the end of the first sentence: "; provided, that the Subcontractor"s performance is the exclusive cause of the payment being withheld by the Authority". The title of Condition 19 shall be changed to "Liquidated Damages and Success Fees". In Condition 19 (page 34), the following language is added at the end of paragraph 19(c): "It is further agreed, that in the event that Subcontractor satisfies the requirements described in any of parts (x), (y) and (z) below by the date specified in such part, Contractor shall be required to pay Subcontractor, in addition to any and all other amounts payable to Subcontractor under this Subcontract, by way of a success fee the following amount for each such part: (x) delivery of Air Platform Number 1 on or before August 1, 2004 - -- US$3,146,814; (y) completion of all of Subcontractor's obligations with respect to the Logistical Support Date (as defined in the Statement of Work) on or before April 1, 2004 -- US$675,468; and (z) completion of installation of all training equipment into the Mission Operating Base on or before April 1, 2004 - US$945,618. The total amount of success fees which might be become payable to Subcontractor hereunder shall not exceed US$4,767,900." Conditions 19(d), (e) and (f) shall be renumbered accordingly. In Condition 19(f) (Page 34), insert the following after the word payable: ", and the right of the Subcontractor to obtain a Success Fee shall not be prejudiced,". At the end of Condition 19(f) (Page 34), add the following before the period: "or where the delay has been approved by the Authority or the Contractor." In Condition 25(c), line 2 (Page 44), "[(to be inserted)]" is hereby deleted and replaced with "JLK/L3/LET001". Annex N is set out in Exhibit C-7 hereto. In Condition 28(a), line 4 (Page 50), the phrase "except Contractor Furnished Requirements (CFR) which fail to meet the applicable CFR specification and SOW" is hereby inserted at the end of the second sentence. In Condition 28(b)(ii) (Page 50), the words "applicable and relevant" are hereby inserted after the word "the" and before the word "requirements." In Condition 28(c)(i) (Page 50), the parenthetical is hereby deleted in its entirety and replaced with "(other than CFR provided by Contractor which fail to meet the applicable CFR specification and SOW and those parts described in paragraph c.ii below)." In Condition 37(c) (Page 64), the words "and the Contractor's liability in respect to CFR supplied to the Subcontractor shall, in any event, cease with effect from the time that the CFR is made available or offered on such dates as may be agreed between the Parties." are hereby deleted and replaced with ". Nothing herein shall relieve Contractor of any obligation to timely deliver to Subcontractor CFR that meets the requirements of the applicable CFR specification and SOW." In Condition 37(j) (Page 65), the following sentence shall be added as the third sentence: "In the event Contractor and Subcontractor are unable to agree whether delay or additional cost are attributable to Contractor"s failure, Subcontractor shall be entitled to submit a claim to Contractor in accordance with Condition 31, except that the third sentence of Condition 31(b) shall not apply." In Condition 37(l), line 1 (Page 65), the words "in accordance with Condition 31" shall be added after the word "Subcontractor" and before the comma. In Condition 41 (Page 70), renumber the existing sub-clauses 41(e) and 41(f) as sub-clauses 41(f) and 41(g), respectively, and insert a new sub-clause 41(e) as follows: " Without prejudice to sub-clause 24.11, where the Subcontractor provides to the Contractor financial data, in the form of particulars of labour rates or actual costs incurred, the Contractor agrees that it will treat such data as confidential and will restrict access to such data only to Contractor employees working on and having a need to receive such data in connection with the ASTOR Programme, and to senior management of the Contractor"s parent and affiliate companies having a need to receive such data for use on the ASTOR Programme. The Parties shall put in place internal measures to ensure the requirements of this sub-clause are implemented at all levels." In Condition 41, in sub-clause 41(e) (now renumbered (f)), line 2 (Page 70), "of even date herewith" is deleted and replaced with "dated 11 January 2002." In Condition 41, in sub-clause 41(e) (now renumbered (f)), line 3 (Page 70), "[Buyer]" is hereby deleted and replaced with "L-3 Communications Corporation." In Condition 43(a), line 3 (Page 72), "[(to be inserted)]" is hereby deleted and replaced with the following: "Legal Counsel, AIS." In Condition 43 (a), lines 4-5 (Page 72), "[(to be inserted)]" is hereby deleted and replaced with the following: "President, AIS." Annex A is hereby deleted in its entirety and replaced with the new Annex A set out in Exhibit C-2 hereto. In Annex B, lines 1-3 (beginning "NOTE: Raytheon shall determine. . .) and the chart entitled "Engineering Services (US DOLLARS $)" are hereby deleted, and replaced with the chart set out in Exhibit C-3 hereto. The text and tables of Annex E are hereby deleted in their entirety and replaced with the following: " The Contractor Furnished Equipment to be provided to the Subcontractor shall be as set forth in the ASTOR Deliverables Database (hereinafter referred to as "ADDS") and the Government Furnished Supplies Database (hereinafter referred to as "GFSD"), as the same may be from time to time amended by agreement between the Parties. The ADDS and GFSD shall be held and maintained in accordance with a procedure to be agreed hereafter between the Parties." Annex F is hereby deleted in its entirety and replaced with the new Annex F set out in Exhibit C-4 hereto. Annex F1 is hereby deleted in its entirety and replaced with the new Annex F1 set out in Exhibit C-5 hereto. Annex G is hereby deleted in its entirety and replaced with the new Annex G set out in Exhibit C-6 hereto. In Annex H (Page 261), lines 1-3 (beginning "[NOTE: The Technical Specification. . .") are hereby deleted in their entirety, and replaced with the following: "As Design Authority for the ASTOR System and subject to Condition 9(b), the Subcontractor agrees to perform its obligations under the Subcontract in accordance with the Technical Specification which is set out in Annex A to Contract CIS4B/9 dated 17 December 1999, and which is already in the possession of the Subcontractor"s ASTOR Programme Office as of the Effective Date. Nothing herein shall relieve Contractor of any obligation to timely deliver to Subcontractor CFR that meets the requirements of the applicable CFR specification and SOW." In Annex I (Page 262) lines 1-3 (beginning "[NOTE: The Acceptance Specification. . .") are hereby deleted in their entirety, and replaced with the following: "As Design Authority for the ASTOR System and subject to Condition 9(b), the Subcontractor agrees to perform its obligations under the Subcontract in accordance with the Acceptance Specification which is set out in Annex C to Contract CIS4B/9 dated 17 December 1999, and which is already in the possession of the Subcontractor"s ASTOR Programme Office as of the Effective Date. Nothing herein shall relieve Contractor of any obligation to timely deliver to Subcontractor CFR that meets the requirements of the applicable CFR specification and SOW. " In Annex N (Page 286), "[To be provided by RSL]" is hereby deleted, and the words attached hereto as Exhibit C-7 are inserted in place thereof. Annex P (Pages 288 - 291) is hereby deleted in its entirety and replaced with the new Annex P set out in Exhibit C-8 hereto. In Annex R (Pages 300-302), the Contractor has exercised its right to amend that Annex. Annex R is hereby deleted in its entirety and replaced with the new Annex R set out in Exhibit C-9 hereto. EXHIBIT C-1 CONDITION 3 - SCHEDULE OF REQUIREMENTS 3. SCHEDULE OF REQUIREMENTS The Subcontractor shall design, develop, manufacture and supply to the Contractor, who shall purchase and where appropriate, take delivery of the Articles and/or Services specified below in accordance with the terms and conditions of the Subcontract, including without limitation the obligations set forth in Condition 4 below.
Notwithstanding anything contained in this Condition 3 to the contrary, the Contractor shall have the right, exercisable upon written notice to the Subcontractor before the date which is forty-five (45) days after the Effective Date, to decrease the costs and prices set forth above in an aggregate amount (which aggregate amount shall be allocable by the Contractor to the applicable line items set forth above) equal to the sum of (i) the costs incurred by the AIS Business (as defined in the Asset Purchase Agreement) during the period starting as of 26 January, 2002 and ending as of the Effective Date in the performance of work with respect to Articles and Services (as defined hereunder) and (ii) an amount equal to six percent (6%) of such costs. EXHIBIT C-2 ANNEX A - DELIVERY SCHEDULE
EXHIBIT C-3
EXHIBIT C-4 ANNEX F STAGE (MILESTONE) PAYMENT SCHEME
Notwithstanding anything contained in this Annex F to the contrary, the Contractor shall have the right to decrease the amounts specified in the last column, entitled "US ($) Dollars (inclusive of 6% fee)", to correspond to the line items in Condition 3, as those line items may be adjusted by the Contractor in accordance with the provisions of Condition 3; provided, however, that the revised Total Price for the column entitled "US ($) Dollars (inclusive of 6% fee)" shall be equal to the dollar amount indicated as the total of the column entitled "Price" in Condition 3, as that amount may be adjusted by the Contractor in accordance with the provisions of Condition 3. EXHIBIT C-5 ANNEX F1 STAGE (MILESTONE) PAYMENT CRITERIA This annex contains the criteria associated with each stage (milestone) payment as identified in Annex F that the Subcontractor shall complete.
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EXHIBIT C-6 REVISED STATEMENT OF WORK EXHIBIT C-7 The Secrets Matter Letter is to be sent by the security controller of the Contractor to the security controller of the Subcontractor under separate cover. For the purposes of this Subcontract the reference for the Secrets Matters Letter is JLK/L3/LET001. EXHIBIT C-8 ANNEX P - KEY PERSONNEL
EXHIBIT C-9 ANNEX R - ASSUMPTIONS GENERAL The ASTOR Air Segment peace time utilisation rate will be a maximum of three thousand two hundred (3,200) flying hours per annum. The ASTOR Air Segment usage during crisis and war utilisation rate will be a maximum of two thousand three hundred and ten (2,310) flying hours over a 90 day period. The combined Ground Segment peace time utilisation rate will be a maximum of twenty one thousand, two hundred (21,200) operating hours per annum. The combined Ground Segment utilisation rate during crisis and war will be a maximum of thirteen thousand eight hundred (13,800) operating hours over a 90 day period. The term 'in-service and supported' means any equipment in the MoD inventory that has an in-service Equipment Support Manager (ESM) and that spares provisioning, technical publications, training and PDS exist and are in place. That said, any element of support that is not already provided is excluded from this definition. A maximum deployment scenario consists of two (2) simultaneous independent Air Platform deployments and four (4) simultaneous independent Ground Station deployments, whilst continuing to maintain the remainder of the ASTOR System at the Main Operating Base. TRAINING The training courses to be developed by the Subcontractor and delivered by the Contractor are based on the manpower establishment as advised by the Authority in the Scoping Study (Issue 2.0) dated 7 Dec 99 (Once reviewed by RSL) - Phase One of the Training Needs Analysis. The training output standards for ASTOR personnel are of a comparable standard to current in-service courses. For example, pilots shall achieve a 100% overall pass mark for all AP safety related issues or electronic technicians are to be capable of carrying out repairs in accordance with the repair policy in that level 1 and 2 tasks should be completed within 30 mins and level 3 within 2 hours. During the design of the training systems, the Subcontractor will make best use of the knowledge available to enable the capability to link the ASTOR TSS to external training systems and equipment for real-time, realistic, interactive training. INITIAL PROVISIONING The Subcontractor is responsible for recommending deciding the content of the Initial Provisioning spares package. Initial Provisioning package, spares used by the Subcontractor to support the Integration and Test phase may be used and will be accepted by the Authority provided each such spare: a) is of the accepted build standard, b) has not been subject to environmental stressing beyond design limits, and c) has been appropriately refurbished. The OLGS AOS shall support both the JFACC and JFHQ, ie all 5 workstation containers and associated communications. Admin and Logistics Delay Times that affect the Supply Chain Pipeline when supporting deployed operations, including during sustained operations in Crisis, Tension and War have been taken into account. All spares supplied are capable of being identified when removed from their packaging. TECHNICAL DOCUMENTATION AND DATA By the System CDR the Contractor will either provide the Subcontractor with a Technical Documentation and Data (TD&D) viewer or confirm the specification of the TD&D viewer. Exhibit D to ------------ Letter Agreement ---------------- Exhibit E to ------------ Letter Agreement ---------------- Exhibit F to ------------ Letter Agreement ---------------- STAMP DUTY, GST AND SUPERANNUATION (AUSTRALIA) 1. STAMP DUTY The Sellers, L-3 Australian Subsidiary and Buyer agree to prepare a schedule within 75 days of Closing containing a description of the Australian Acquired Assets, their location within Australia and an allocation of their value to enable the L-3 Australian Subsidiary to lodge that schedule with relevant Australian Governmental Entities for stamp duty purposes, provided however that such allocation shall conform with the Allocation Schedule prepared in accordance with clause 1.4 of the Asset Purchase Agreement. 2. GST 2.1 SUPPLY OF A GOING CONCERN Raytheon Australia and L-3 Australian Subsidiary acknowledge and agree that: (a) the sale of the Australian AIS Business is a supply of a going concern for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth); (b) Raytheon Australia will supply to L-3 Australian Subsidiary all of the things that are necessary for the continued operation of the Australian AIS Business as provided by Article 1.1 of the Asset Purchase Agreement; (c) L-3 Australian Subsidiary warrants that it is Registered or is Required to be Registered at the date of Closing; and (d) Raytheon Australia will carry on the Australian AIS Business until the date of the supply of the Australian AIS Business to L-3 Australian Subsidiary. 2.2 GST If any Supply made by a party under this Agreement is subject to GST, including if the supply of the Australian AIS Business is not a supply of a going concern for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (C'th), the Supplier may, in addition to the consideration for the Supply, recover an additional amount on account of GST from the Recipient. The parties agree, that this clause overrides the effect that clause 8.1(d) of the Asset Purchase Agreement would otherwise have in respect of the manner in which the GST cost is to be borne between the parties. 2.3 ADDITIONAL AMOUNT The additional amount on account of GST referred to in clause 2.2 ("GST"): (a) is equal to the GST exclusive consideration payable by the Recipient for the relevant Supply multiplied by the prevailing GST rate; and (b) subject to clause 2.4, is payable not later than 14 days from the day the Supplier gives notice to the Recipient that the Supply is subject to GST. 2.4 TAX INVOICE The Supplier must provide a tax invoice to the Recipient in a form that complies with the GST Law when the Supplier gives notice to the Recipient that the Supply is subject to GST. 3. SUPERANNUATION 3.1 L-3 AUSTRALIAN SUBSIDIARY'S OBLIGATION Prior to Closing and with effect from the Closing, the L-3 Australian Subsidiary must establish or identify a superannuation fund or funds which will provide benefits for the Transferring Employees on terms no less favourable than those of the Australian Disclosed Funds that applied to the AIS Employees immediately before Closing and the Buyer must ensure that L-3 Australian Subsidiary offers to Transferring Employees, membership of such superannuation fund which provides to the particular Transferring Employee benefits on terms no less favourable than that Transferring Employee had in respect of the particular Australian Disclosed Funds of which it was a member. 3.2 WARRANTIES AND INDEMNITIES - SUPERANNUATION - AUSTRALIA (a) Except in relation to the Australian Disclosed Funds and the AIS Benefit Plans , the Sellers do not make payments to any funds, schemes or arrangements relating to retirement, death or disablement benefits, and there is no contract, agreement, arrangement or proposal in force or promised whereby the Sellers could become so liable at any time for the Transferred Employees. (b) Prior to Closing, the Sellers have disclosed full details, in relation to the Transferring Employees, of: (i) the level of benefits payable; and (ii) the rate at which employer contributions are currently paid to the Australian Disclosed Funds, the basis on which those contributions are calculated and whether those contributions are paid in advance or in arrears. (c) All amounts due to the Australian Disclosed Funds (including all contributions, taxes and expenses) have been paid and no services have been rendered or requested in relation to the Australian Disclosed Funds which have not been paid for. (d) In respect of the Australian Disclosed Funds, the Sellers have given the L-3 Australian Subsidiary true, correct and up to date copies of: (i) all trust deeds and rules; (ii) all explanatory booklets, announcements and notices of current effect; (iii) all relevant accounts; and (iv) the most recent actuarial valuations. 4. DEFINITIONS All other capitalised terms used in this clause and not defined have the meaning given to them in the Asset Purchase Agreement. In this Exhibit F, these meanings apply unless the contrary intention appears. AUSTRALIAN ACQUIRED ASSETS means the Australian assets utilized exclusively or primarily in the Australian AIS Business. AUSTRALIAN AIS BUSINESS means the Maritime Aircraft Patrol Division of the Sellers located at Avalon, Victoria and Adelaide, South Australia. AUSTRALIAN DISCLOSED FUNDS means Westpac Business Superannuation - Raytheon Systems Company Australia Superannuation Fund, The Superannuation Trust of Australia and Raytheon Superannuation Fund. GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cwlth). GST-FREE has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth). GST LAW has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth). SUPPLY means any supply (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth) and includes the sale of the Business) made by a party under this agreement. SUPPLIER means any party making a Supply under this agreement. RECIPIENT means the recipient of any Supply under this agreement. REGISTERED OR REQUIRED TO BE REGISTERED has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth). Exhibit G to ------------ Letter Agreement ---------------- APPENDIX D THALES-RAYTHEON SYSTEMS LLC (SUPPLIER) PAGE 1 Prime Contractor (Customer): Buyer Subcontractor (Supplier): Thales-Raytheon Systems LLC (TRS) Prospective Program Customer and Program Name: Korean Air Force AEW&C Existing Work: None. IOT: None. Proposed Activities: The parties shall cooperate in joint marketing for the Program to the prospective Program Customer particularly promoting the use of the SAADS MCRC software and related Operational capabilities, and the advantages of this being both at the ground sites and in the AEW. In event that the contract for the Program is awarded to Buyer, TRS LLC shall supply and support the implementation of the SAADS-based software into the AEW&C aircraft. Exclusivity: The teaming arrangement shall be exclusive with respect to both Parties. Exhibit H to ------------ Letter Agreement ---------------- Appendix F of Supply Agreement (Raytheon as Supplier) ----------------------------------------------------- Exhibit I to ------------ Letter Agreement ---------------- Appendix D of Supply Agreement (Raytheon Technical Services Company as Customer) ------------------------------------------------------------------------------- Exhibit J to ------------ Letter Agreement ---------------- (a)(ii)
*Upon the mutual agreement of the Buyer and Raytheon Systems Limited, the requirement to purchase IFF Transponders under Order No. 4500092659 may be amended and the corresponding value of the ULO($) may be reduced after the Closing to reflect a reduction in the quantity of deliverable units.