Exhibit 10.10
EXECUTION COPY
TRANSITION SERVICES AGREEMENT dated as of June 27, 2001 (this "Services
Agreement"), between RAYTHEON AIRCRAFT HOLDINGS, INC., a Delaware corporation
("Seller"), RAYTHEON AEROSPACE LLC, a Delaware limited liability company and a
wholly owned subsidiary of Seller (the "Company"), and RA AEROSPACE HOLDINGS,
LLC, a Delaware limited liability company ("Buyer"). Each of Seller and Buyer
are sometimes hereinafter referred to as a "Party" and collectively as the
"Parties".
WHEREAS Seller, Buyer, Wing Corp. and Raytheon Aerospace Company
have entered into the Combination Agreement dated as of April 5, 2001 (as
amended by Amendment Number One dated as of June 27, 2001, the "Agreement"),
relating to the formation of a joint venture by Seller, Buyer and Company,
pursuant to which Raytheon Aerospace Company merged with and into Wing Corp.
and Wing Corp. was converted into the Company; and
WHEREAS Buyer is interested in purchasing certain services from
Seller and its subsidiaries and Seller and its Subsidiaries are interested in
providing such services to Buyer during a transition period commencing on the
Closing Date.
WHEREAS Seller and its Subsidiaries are interested in purchasing
certain services from Buyer and Company and Buyer and Company are interested in
providing such services to Seller and its Subsidiaries during a transition
period commencing on the Closing Date.
NOW, THEREFORE, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
All terms used herein and not defined herein shall have the meanings
assigned to them in the Agreement.
ARTICLE II
AGREEMENT TO PROVIDE AND ACCEPT SERVICES
SECTION 2.01. PROVISION OF SERVICES. (a) On the terms and subject to
the conditions contained herein, Seller shall provide, or shall cause its
Subsidiaries or third parties designated by it and reasonably acceptable to
Buyer (such designated Subsidiaries and third parties, together with the Seller,
being herein collectively referred to as the "Seller Service Providers") to
provide, to the Buyer and the Company the services ("Seller Services") listed on
the attached Schedule 1 ("Schedule 1"). Each Seller Service shall be provided in
exchange for the consideration set forth with respect to such Seller Service on
Schedule 1 or as the Parties may otherwise agree in writing. Each of the Seller
Services shall be provided and accepted in accordance with the terms,
limitations and conditions set forth herein and on Schedule 1.
(b) On the terms and subject to the conditions contained herein,
Buyer and Company shall provide, or shall cause their Subsidiaries or third
parties designated by it and reasonably acceptable to Seller (such designated
Subsidiaries and third parties, together with the Buyer and Company, being
herein collectively referred to as the "Buyer Service Providers," and together
with the Seller Service Providers, the "Service Providers") to provide, to the
Seller the services ("Buyer Services" and together with the Seller Services, the
"Services") listed on the attached Schedule 1 ("Schedule 1"). Each Buyer Service
shall be provided in exchange for the consideration set forth with respect to
such Buyer Service on Schedule 1 or as the Parties may otherwise agree in
writing. Each of the Buyer Services shall be provided and accepted in accordance
with the terms, limitations and conditions set forth herein and on Schedule 1.
SECTION 2.02. ACCESS. Buyer and Company shall make available on a
timely basis to the Seller Service Providers all information and materials
reasonably requested by any of the Seller Service Providers to enable it to
provide the Seller Services. Buyer and Company shall provide to the Seller
Service Provider reasonable access to the Buyer's and the Company's premises to
the extent necessary for the purpose of providing the Seller Services.
ARTICLE III
SERVICES; PAYMENT; INDEPENDENT CONTRACTORS
SECTION 3.01. SERVICES TO BE PROVIDED. (a) Unless otherwise agreed
by the Parties, Buyer and Seller shall be required to perform, or to cause the
other applicable Service Providers to perform, the Services only in a manner
that is substantially similar in all material respects to the manner in which
such Services were performed for the Company or the Seller, as the case may be,
prior to the Closing Date, and the Services shall be used for substantially the
same purposes and in substantially the same manner as the Services had been used
prior to such date; PROVIDED, HOWEVER, that in no event shall the scope of the
Services required to be performed hereunder exceed that described on Schedule 1
unless otherwise agreed in writing. Each of Seller and the Seller Service
Providers shall act under this Services Agreement solely as an independent
contractor and not as an agent of the Buyer or the Company. Each of Buyer,
Company and the Buyer Service Providers shall act under this Services Agreement
solely as an independent contractor and not as an agent of the Seller.
(b) If it is necessary for any Seller Service Provider to increase
staffing or acquire equipment or make any investments or capital expenditures to
accommodate an increase in the use of any Seller Service beyond the level of use
of such Seller Service by the Buyer or the Company prior to the Closing Date, as
a result of an increase in volume of the business of the Company or a change in
the manner in which the business of the Company is being conducted, Seller shall
inform Buyer in writing of such increase in staffing level, equipment
acquisitions, investments or capital expenditures before any such cost or
expense is incurred. Upon mutual agreement of the Parties as to the necessity of
any such increase, Buyer (unless Buyer and Seller
shall otherwise agree in writing) shall advance to the relevant Seller Service
Providers an amount equal to the actual costs and expenses to be incurred in
connection therewith. If such mutual agreement is not reached, Seller's
obligation to provide or cause to be provided such Seller Service shall be
limited to the level of use of such Seller Service by the Company prior to the
Closing Date.
(c) The Service Providers shall have the right to shut down
temporarily for any reason specified in Article V (Force Majeure) hereof.
(d) Buyer and Seller agrees to use their reasonable good faith
efforts to reduce or eliminate their dependency on the Services as soon as is
reasonably practicable.
(e) If it is necessary for Seller or any other Seller Service
Provider to increase staffing or acquire equipment or make any investments or
capital expenditures or otherwise absorb or incur incremental expenses in order
to provide any Seller Service as a result of the initial conversion or
transition of such Seller Service (including, for example, costs incurred by
Seller or a Seller Service Provider in order to segregate data or systems for
the Company from other data or systems of Seller or the Seller Service
Provider), then Buyer agrees to reimburse the Seller Service Provider in cash,
promptly upon receipt of a written invoice, an amount equal to one half of the
actual costs and expenses incurred by the Seller Service Provider in connection
therewith.
(f) The parties will use good faith efforts to reasonably cooperate
with each other in all matters relating to the provision and receipt of
Services. Such cooperation shall include obtaining all consents, licenses or
approvals necessary to permit each party to perform its obligations hereunder;
PROVIDED that neither Buyer nor Seller shall be required to pay any amounts to
any third parties or to grant any accommodation, financial or otherwise, to
secure the same. The parties will, for a period of five (5) years after the
Closing Date, maintain documentation supporting the information contained in the
Exhibits and Schedules and cooperate with each other in making such information
available as needed, subject to appropriate confidentiality requirements, in the
event of any tax audit or litigation.
SECTION 3.02. BUYER PAYMENT. Statements will be delivered to Buyer
each month by Seller or such other Seller Service Providers designated by Seller
for Seller Services provided to the Buyer and the Company during the preceding
month, and each such statement shall set forth a brief description of such
Seller Services and the amounts charged therefor and such amounts shall be
payable by Buyer net 30 days after the date of such statement. Statements not
paid within such 30-day period shall be subject to late charges, calculated
based on the then current prime or base rate of Chase Manhattan Bank plus one
percentage point, for each month or portion thereof the statement is overdue. In
addition to the charges for the Seller Services provided hereunder, Buyer will
reimburse Seller and the other Seller Service Providers for any and all actual
out-of-pocket ancillary fees, costs, or expenses incurred by Seller or such
Seller Service Providers in connection with providing for the Seller Services
hereunder, including shipping and transportation costs, duties, taxes and other
fees or expenses, where such ancillary
fees, costs or expenses are not specifically included, or exceed, the amounts
provided for such items on Schedule 1.
SECTION 3.03. SELLER PAYMENT. Statements will be delivered to Seller
each month by Buyer or such other Buyer Service Providers designated by Buyer
for Buyer Services provided to the Seller during the preceding month, and each
such statement shall set forth a brief description of such Buyer Services and
the amounts charged therefor and such amounts shall be payable by Seller net 30
days after the date of such statement. Statements not paid within such 30-day
period shall be subject to late charges, calculated based on the then current
prime or base rate of Chase Manhattan Bank plus one percentage point, for each
month or portion thereof the statement is overdue. In addition to the charges
for the Buyer Services provided hereunder, Seller will reimburse Buyer and the
other Buyer Service Providers for any and all actual out-of-pocket ancillary
fees, costs, or expenses incurred by Buyer or such Buyer Service Providers in
connection with providing for the Buyer Services hereunder, including shipping
and transportation costs, duties, taxes and other fees or expenses, where such
ancillary fees, costs or expenses are not specifically included, or exceed, the
amounts provided for such items on Schedule 1.
SECTION 3.04. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH
IN THE AGREEMENTS, THE SERVICES AND GOODS TO BE PURCHASED UNDER THIS SERVICES
AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
SECTION 3.05. TAXES. The amounts set forth as the applicable
consideration with respect to each Service on Schedule 1 do not include any
sales tax, value added tax, goods and services tax or similar tax (collectively,
"Taxes") and any such Taxes required to be paid by any Service Provider in
connection with this Services Agreement or the performance hereof will be
promptly reimbursed to such Service Providers and such reimbursement shall be in
addition to the amounts required to be paid as set forth on Schedule 1.
SECTION 3.05. USE OF SELLER SERVICES. Seller shall be required to
provide, or to cause any other Seller Service Provider to provide, Seller
Services only to the Company in connection with its conduct of the business of
the Company as performed prior to the Closing Date. Neither Buyer nor Company
shall resell any Seller Services to any person whatsoever or permit the use of
the Seller Services by any person other than in connection with the conduct of
the business of the Company.
ARTICLE IV
TERM OF SERVICES
The provision of Services shall commence on the Closing Date and
shall terminate no later than the date indicated for each such Service on
Schedule 1; PROVIDED, HOWEVER, that: (i) any Service may be cancelled or reduced
in amount or any portion thereof upon 30-days' written notice thereof subject to
the requirement that the party receiving the service pay to the Service Provider
the out-of-pocket costs incurred by the Service Provider, as well as the
incremental internal costs incurred by the Service Providers, in each case as a
result of such cancellation, which out-of-pocket and internal costs shall be set
forth in reasonable detail in a written statement provided by the Service
Provider to the recipient of the services; PROVIDED, HOWEVER, that if the
recipient of the services provides the Service Provider with more than 30-days
written notice (such days in excess of the 30-days being collectively referred
to as "additional notice"), then the recipient of the services shall not be
liable for such costs as and to the extent that such additional notice is
sufficient to permit the Service Provider to avoid (through the use of
commercially reasonable means) such costs and (ii) Seller may cease or cause any
other Seller Service Provider to cease providing a Seller Service upon 90-days'
written notice thereof to Buyer to the extent that Seller and the other Seller
Service Providers cease to provide such Seller Services to Seller's similarly
situated Subsidiaries, divisions and business units.
ARTICLE V
FORCE MAJEURE
The Service Providers shall not be liable for any interruption of
Service or delay or failure to perform under this Services Agreement that is due
to acts of God, acts of a public enemy, acts of a nation or any state,
territory, province or other political division thereof, fires, floods,
epidemics, riots, theft, quarantine restrictions, freight embargoes or other
similar causes beyond the control of the Service Providers. In any such event,
the Service Provider's obligations hereunder shall be postponed for such time as
its performance is suspended or delayed on account thereof. The Service Provider
will promptly notify the recipient of the Service, either orally or in writing,
upon learning of the occurrence of such event of force majeure. Upon the
cessation of the force majeure event, the Service Provider will use reasonable
efforts to resume, or to cause any other relevant Service Provider to resume,
its performance with the least practicable delay.
ARTICLE VI
LIABILITIES
SECTION 6.01. CONSEQUENTIAL AND OTHER DAMAGES. None of the Service
Providers shall be liable with respect to this Services Agreement, whether in
contract, tort (including negligence and strict liability) or otherwise, but
excluding willful misconduct or bad faith, for any special, indirect, incidental
or consequential damages whatsoever which in any way
arise out of, relate to or are a consequence of, the performance or
nonperformance by it hereunder or the provision of, or failure to provide, any
Service hereunder, including with respect to loss of profits, business
interruptions or claims of customers (other than, with respect to customers, the
Service Provider in its capacity as a customer). Buyer agrees to indemnify and
hold harmless each Seller Service Provider from and against any such damages
incurred thereby and any costs and expenses thereof arising in connection with
any Seller Service and Seller agrees to indemnify and hold harmless each Buyer
Service Provider from and against any such damages and any costs and expenses
thereof arising in connection with any Buyer Service.
SECTION 6.02. LIMITATION OF LIABILITY. Subject to Section 6.03, in
any event, the liability of any Service Provider with respect to this Services
Agreement or any act or failure to act in connection herewith (including, but
not limited to, the performance or breach hereof, but excluding willful
misconduct or bad faith), or from the sale, delivery, provision or use of any
Service provided under or covered by this Services Agreement, whether in
contract, tort (including negligence and strict liability) or otherwise, shall
not exceed the fees previously paid to such Service Provider under this Services
Agreement in respect of the Service from which such purported liability flows.
SECTION 6.03. OBLIGATION TO REPERFORM. In the event of any breach of
this Services Agreement by any Service Provider with respect to any error,
defect or breach (which breach Service Provider can reasonably be expected to
reperform in a commercially reasonable manner) in the provision of any Service,
the Service Provider shall correct in all material respects such error, defect
or breach or reperform in all material respects such Service at the request of
the recipient of such Service and at the expense of the Service Provider. The
remedy set forth in this Section 6.03 shall be the only remedy of the recipient
of such Service for any such breach. To be effective, any such request by the
recipient of such Service must (i) specify in reasonable detail the particular
error, defect or breach, (ii) be made no more than one year from the date such
Service was provided and (iii) in the case of a Seller Service be made no less
than 30 days prior to the date Seller and the other Seller Service Providers
cease to provide such Seller Service to Seller's similarly situated
Subsidiaries, divisions and business units.
SECTION 6.04. RELEASE AND INDEMNITY. (a) Except as specifically set
forth in this Services Agreement, Buyer and Company hereby releases, each
Service Provider and each of its employees, agents, officers and directors
(collectively, the "Seller Indemnitees"), and Buyer and Company hereby agree to
jointly and severally indemnify, defend and hold harmless the Seller
Indemnitees, from and against any and all claims, demands, complaints,
liabilities, losses, damages, costs and expenses arising from or relating to the
use of any Seller Service provided hereunder by the Company or the Buyer or any
other person using such Seller Service.
(a) Except as specifically set forth in this Services Agreement,
Seller hereby releases, each Service Provider and each of its employees, agents,
officers and directors (collectively, the "Buyer Indemnitees"), and Seller
hereby agree to jointly and severally indemnify, defend and hold harmless the
Buyer Indemnitees, from and against any and all claims, demands, complaints,
liabilities, losses, damages, costs and expenses arising from or
relating to the use of any Buyer Service provided hereunder by the Seller or any
other person using such Seller Service.
ARTICLE VII
TERMINATION
SECTION 7.01. TERMINATION. Notwithstanding anything herein to the
contrary, this Services Agreement shall terminate, and the obligation of the
Service Providers to provide or cause to be provided any Service shall cease, on
the earliest to occur of (i) the last date indicated for the termination of any
Service on Schedule 1, (ii) the date on which the provision of all Services has
terminated or been canceled pursuant to Article IV, (iii) the date on which this
Services Agreement terminates and (iv) the fifth anniversary of the Closing
Date.
SECTION 7.02. BREACH OF SERVICES AGREEMENT. Subject to Article VI,
if either Party shall cause or suffer to exist any material breach of any of its
material obligations under this Services Agreement, including any failure to
make payments when due, and that Party does not cure such default in all
material respects within 30 days after receiving written notice thereof from the
nonbreaching Party, the nonbreaching Party may terminate this Services
Agreement, including the provision of Services pursuant hereto, immediately by
providing written notice of termination.
SECTION 7.03. SUMS DUE. In the event of a termination of this
Services Agreement, the Service Providers shall be entitled to the immediate
payment of, and the recipient of such Services shall within five Business Days
pay to the Service Providers, all accrued amounts for Services under this
Agreement as of the date of termination.
SECTION 7.04. EFFECT OF TERMINATION. Sections 3.02, 3.03, 7.03
and 8.13, this Section 7.04 and Article VI shall survive any termination of
this Services Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. ASSIGNMENT. Neither this Services Agreement nor any
rights or obligations hereunder may be assigned or otherwise transferred by
either Party (including by operation of law) without the prior written consent
of the other Party; PROVIDED that Seller may delegate performance of all or any
part of its obligations under this Services Agreement, and assign the rights
relating thereto, to (i) any Subsidiary of Seller or (ii) third parties to the
extent such third parties are routinely used to provide Seller Services to
similarly situated Subsidiaries, divisions or business units of Seller PROVIDED
FURTHER that, in each case, no such delegation shall in any way affect Seller's
or Buyer's rights (including the provisions of Article VI) and
obligations under this Services Agreement. Any purported assignment or transfer
in violation of this Section 8.01 shall be null and void and of no effect.
SECTION 8.02. NO THIRD PARTY BENEFICIARIES. Except as provided in
Section 6.04 with respect to release and indemnity, this Services Agreement is
for the sole benefit of the Parties, their Subsidiaries and their permitted
assigns and nothing herein expressed or implied shall give or be construed to
give to any person, other than the Parties, such Subsidiaries and such permitted
assigns, any legal or equitable rights hereunder, whether as third party
beneficiaries or otherwise, except for the third party Service Providers
designated by Seller or Buyer, as the case may be, as set forth in Section 2.01.
SECTION 8.03. AMENDMENTS. No amendment to this Services
Agreement shall be effective unless it shall be in writing and signed by each
Party.
SECTION 8.04. WAIVERS. No failure or delay of any Party and their
Subsidiaries in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Parties and their
Subsidiaries hereunder are cumulative and are not exclusive of any rights or
remedies which they would otherwise have hereunder. No provision of this
Services Agreement may be waived except pursuant to a writing executed by the
waiving Party.
SECTION 8.05. NOTICES. All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by facsimile or sent, postage prepaid, by registered, certified or
express mail or reputable overnight courier service and shall be deemed given
when so delivered by hand or facsimile, or if mailed, three days after mailing
(one Business Day in the case of express mail or overnight courier service), as
follows (or at such other address for a Party as shall be specified by notice
given in accordance with this Section 8.05):
(i) if to Seller,
Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Corporate Secretary
Fax No: (000) 000-0000
And a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax No: (000) 000-0000
(ii) if to Buyer,
Raytheon Aerospace Holding, LLC
c/o Veritas Capital Fund, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxx
Fax No.: (000) 000-0000
With a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Fax No.: (000) 000-0000
SECTION 8.06. EXHIBITS AND SCHEDULES; INTERPRETATION. The headings
contained in this Services Agreement or in any Schedule or Annex hereto are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Services Agreement. All Schedules and Annexes annexed
hereto or referred to herein are hereby incorporated in and made a part of this
Services Agreement as if set forth in full herein. Any capitalized terms used in
any Schedule or Annex but not otherwise defined therein, shall have the meaning
as defined in this Services Agreement. When a reference is made in this Services
Agreement to an Article, Section, Schedule or Annex, such reference shall be to
an Article or Section of, or a Schedule or Annex to, this Services Agreement
unless otherwise indicated. For all purposes hereof, the terms "include" and
"including" shall be deemed followed by the words "without limitation". The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Services Agreement shall refer to this Services Agreement as a whole and
not to any particular provision of this Services Agreement. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including (in
the case of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. A "person" means any individual, firm,
corporation, partnership, joint stock company, limited liability company, trust,
joint venture, Governmental Entity or other entity. References to a person are
also to its permitted successors and assigns and, in the case of an individual,
to his or her heirs and estate, as applicable.
SECTION 8.07. COUNTERPARTS. This Services Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the Parties and delivered to the other Parties.
SECTION 8.08. ENTIRE AGREEMENT. This Services Agreement, including
the Schedules and Annexes hereto, contains the entire agreement and
understanding between the Parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
SECTION 8.09. SEVERABILITY. If any provision of this Services
Agreement or the application of any such provision to any person or circumstance
shall be held invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision hereof.
SECTION 8.10. CONSENT TO JURISDICTION. Buyer and Company irrevocably
submit to, and Seller irrevocably submits to the exclusive jurisdiction of (i)
the Supreme Court of the State of New York, New York County, and (ii) the United
States District Court for the Southern District of New York, for the purposes of
any action, suit or other proceeding arising out of this Services Agreement or
any transaction contemplated hereby (and each agrees that no such action, suit
or proceeding relating to this Services Agreement shall be brought by it or any
of its Subsidiaries except in such courts). Buyer and Company further agree, and
Seller further agrees that service of any process, summons, notice or document
by U.S. registered mail to such person's respective address set forth above
shall be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction as
set forth above in the immediately preceding sentence. Buyer and Company
irrevocably and unconditionally waives (and agrees not to plead or claim), and
Seller irrevocably and unconditionally waives (and agrees not to plead or
claim), and agrees to cause its Subsidiaries to irrevocably and unconditionally
waive (and not to plead or claim), any objection to the laying of venue of any
action, suit or proceeding arising out of this Services Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County or (ii) the United States District Court for the Southern
District of New York or that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
SECTION 8.11. GOVERNING LAW. This Services Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York applicable to agreements made and to be performed entirely within such
State.
SECTION 8.12. WAIVER OF JURY TRIAL. Each Party hereby waives, and
agrees to cause each of its Subsidiaries to waive, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any litigation directly or indirectly arising out of, under or in connection
with this Services Agreement. Each Party (i) certifies that no Representatives
of any other Party has represented, expressly or otherwise, that such other
Party would not, in the event of litigation, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other Party have been induced to
enter into this Services Agreement by, among other things, the mutual waivers
and certifications in this Section 8.12.
SECTION 8.13. CONFIDENTIALITY; TITLE TO DATA. (a) Each of the
Parties agrees that any confidential information of the other Party received in
the course of performance under this Services Agreement shall be kept strictly
confidential by the Parties, except that Seller may, for the purpose of
providing Seller Services pursuant to this Services Agreement, disclose such
information to any of its Subsidiaries or to third party Service Providers;
PROVIDED that any such third party shall have agreed to be bound by this Section
8.13; and either Party may disclose such information to the extent reasonably
necessary in connection with the enforcement of this Services Agreement. Upon
the termination of this Services Agreement, each Party and its Subsidiaries
shall return to the other Party and its Subsidiaries all of such other Party's
and its Subsidiaries' confidential information to the extent that such
information has not been previously returned. The obligations under this Section
8.13 shall not apply to (i) information of the disclosing Party or its
Subsidiaries that was known to the receiving Party, without restrictions on
disclosure or use, prior to its coming within the knowledge of such receiving
Party in the course of performance of this Services Agreement except as provided
in Section 6.3 of the Agreement, (ii) information of the disclosing Party that
is, or through no fault of the receiving Party becomes, publicly available (iii)
information which lawfully becomes available, without restriction on disclosure
or use, from a third party and (iv) information independently developed without
reference to the information provided hereunder.
(b) Buyer and Company acknowledge that they will acquire no right,
title or interest (including any license rights or rights of use) in any
firmware or software, and the licenses therefor which are owned by any Service
Provider, by reason of the provision of the Seller Services provided hereunder.
Seller acknowledges that the Seller Service Providers will acquire no right,
title or interest (including any license rights or rights of use) in any
firmware or software, and the licenses therefor which are owned by Buyer or the
Company, by reason of the provision of the Seller Services provided hereunder.
SECTION 8.14. REPRESENTATIVES. The parties shall each appoint a
representative (a "Representative") to facilitate communications and performance
under this Services Agreement. Each party may treat an act of a Representative
of the other party as being authorized by such other party without inquiring
behind such act or ascertaining whether such Representative had authority to so
act. The initial Representatives shall be appointed within ten Business Days
after the date hereof. Each party shall have the right at any time and from time
to time to replace any of its Representatives by giving notice in writing to the
other party setting
forth the name of (i) each Representative to be replaced and (ii) the
replacement, and certifying that the replacement Representative is authorized to
act for the party giving the notice in all matters relating to this Agreement.
EXECUTION COPY
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IN WITNESS WHEREOF, the Parties have executed this Services
Agreement as of the date first written above.
RAYTHEON AIRCRAFT HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: V.P. and General Counsel
RAYTHEON AEROSPACE LLC
By /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
RA AEROSPACE HOLDING LLC
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
