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ACCESS AND OCCUPANCY AGREEMENT
General Motors Corporation ("GM"), Xxxxxxx-Xxxxxx Greenville, Inc.
("Greenville") and Xxxxxxx-Xxxxxx, Inc. ("Xxxxxxx-Xxxxxx"), both direct and
indirect, respectively, wholly-owned subsidiaries of Harvard Industries, Inc.
("Harvard"), enter into this Access and Occupancy Agreement (this "Agreement")
on March __, 1997.
RECITALS
X. Xxxxxxx-Xxxxxx and Greenville are major suppliers of component
parts to GM pursuant to various purchase orders and/or supply contracts issued
by GM (collectively, the "Purchase Orders").
X. Xxxxxxx-Xxxxxx entered into a supply arrangement with GM to supply
the requirements of GM's Delphi Automotive Systems Division ("Delphi") for the
V-8 Lower Intake Manifold (the "V-8 Manifold").
C. Prior to a price increase granted by GM pursuant to the terms of a
Term Sheet dated July 25, 1996 (the "Term Sheet") Xxxxxxx-Xxxxxx and Greenville
assert that they were incurring significant operating losses in connection with
the production of V-8 Manifolds by Xxxxxxx-Xxxxxx and/or Greenville, as
applicable. Xxxxxxx-Xxxxxx and Greenville also advised GM that the financial
stability of Xxxxxxx-Xxxxxx and Greenville could be threatened if
Xxxxxxx-Xxxxxx and/or Greenville, as applicable, continued to produce and
deliver the V-8 Manifold at the existing contract price and requested that XX
xxxxx a price increase and other financial accomodations to Xxxxxxx-Xxxxxx and
Greenville as a condition to continuing to deliver V-8 Manifolds to GM.
D. GM asserts that Xxxxxxx-Xxxxxx and/or Greenville's failure or
refusal to satisfy GM's requirements for the V-8 Manifold would irreparably
injure GM.
E. On July 25, 1996, the parties executed the Term Sheet outlining
the terms of an agreement pursuant to which Xxxxxxx-Xxxxxx would be granted a
price increase on the V-8 Manifold and GM would provide certain additional
financial accomodations in consideration for the agreements and commitments of
Harvard, Xxxxxxx-Xxxxxx and Greenville set forth therein.
F. The parties are entereing into this Agreement and the Exhibits
hereto to memorialize the agreements of the parties set forth in the Term
Sheet.
THEREFORE, in consideration of the above recitals (which are part of
this Agreement) and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Xxxxxxx-Xxxxxx, Greenville, and GM agree
as follows:
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TERMS AND CONDITIONS
1. Certain Defined Terms. In addition to those terms defined elsewhere
in this Agreement, the following terms shall have the indicated meanings,
unless the context otherwise requires:
"Code" means the Uniform Commercial Code as in effect in the State
of Michigan as of the date of this Agreement.
"Components Parts" shall mean all component parts called for by any
purchase order issued by GM to Xxxxxxx-Xxxxxx or Greenville whether as of
the date of this Agreement or in the future which Component Paris are in
whole or in part manufactured or assembled at the Greenville Plant as
defined herein.
"Contract Rights" means all rights of Xxxxxxx-Xxxxxx or Greenville
(including, without limitation, all rights to payment) under each Contract
(defined below).
"Contracts" means, collectively, all licensing agreements and any
and all other contracts, supply agreements or other agreements in or
under which Xxxxxxx-Xxxxxx or Greenville may now or hereafter have any
right, title or interest and which pertain to the lease, sale or other
disposition by Xxxxxxx-Xxxxxx and/or Greenville of Equipment, Inventory,
fixtures, real property or any interest in real property, or the right to
use or acquire personal property, as any of the same may from time to time
be amended, supplemented or otherwise modified.
"Default" shall mean any of the following events:
(a) An executive officer of Xxxxxxx-Xxxxxx or Greenville
acknowledges in writing that Xxxxxxx-Xxxxxx or Greenville is
unable or unwilling to timely satisfy GM's delivery
requirements of the Component Parts in accordance with the
terms and conditions of the purchase orders relating to the
Component Parts and any other agreements between GM and
Xxxxxxx-Xxxxxx or Greenville. For this purpose "executive
officer" means any of the Chairman, President, Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer,
Chief Accounting Officer, Vice Presidents, Treasurer,
Controller or Secretary of Xxxxxxx-Xxxxxx or Greenville.
(b) A voluntary or involuntary petition under Chapter 7 of the
Bankruptcy Code is filed against Xxxxxxx-Xxxxxx or Greenville
and such portion is not (i) dismissed within thirty (30) days,
or (ii) converted to a proceeding under Chapter 11 of the
Bankruptcy Code within thirty (30) days.
(c) Xxxxxxx-Xxxxxx or Greenville makes an assignment for the
benefit of creditors or a similar transfer of or action
involving any Operating Assets or Real Estate for purposes of
liquidating a material portion of the
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Operating Assets or Real Estate, or a Trustee, custodian or
receiver is appointed over all or substantially all of
Xxxxxxx-Xxxxxx'x or Greenville's property.
(d) Xxxxxxx-Xxxxxx or Greenville ceases to satisfy GM's reasonable
requirements pursuant to releases issued by GM to
Xxxxxxx-Xxxxxx or Greenville so as to result in the imminent
interruption of GM's assembly operations.
(e) Xxxxxxx-Xxxxxx or Greenville fails or refuses for any reason
to ship or produce the Component Parts pursuant to releases
issued by GM to Xxxxxxx-Xxxxxx or Greenville in the ordinary
course of business, the consequence of which is that
production at any GM plant is negatively impacted to a
material extent.
(f) Any Lender (or a successor secured lender holding a security
interest in a material portion of Xxxxxxx-Xxxxxx'x or
Greenville's assets) commences a foreclosure action of its
liens, security interests and/or mortgages in or against all
or any of the Real Estate or Operating Assets.
Notwithstanding the provisions of this Section 1 or any other provision of
this Agreement, any delay or failure of Xxxxxxx-Xxxxxx or Greenville to
perform their respective obligations to GM shall not constitute a Default
hereunder if and to the extent that such delay or failure is caused,
without the fault or negligence of either Xxxxxxx-Xxxxxx or Greenville, by
acts of God, actions by any governmental authority (whether valid or
invalid), fires, floods, windstorms, explosions, riots, natural disasters,
wars, labor problems (including lockouts, strikes and slowdowns and
including labor problems of GM) inability to obtain power, materials,
labor, equipment or transportation not resulting from Harvard's,
Xxxxxxx-Xxxxxx'x or Greenville's inability or unwillingness to pay for
such items (including Payment on COD or CIA terms), and court injunctions
or orders so long as Harvard, Xxxxxxx-Xxxxxx or Greenville did not seek or
participate directly or indirectly in the seeking of such court injunction
or order, provided that written notice of such delay (including the
anticipated duration of the delay) shall be given by the affected party to
GM within ten (10) days.
"Documents" means all "documents" as that term is defined in Section
9-105(f) of the Code.
"Equipment" means any "equipment", as such term is defined in
Section 9-109(2) of the Code, now or hereafter owned by Xxxxxxx-Xxxxxx or
Greenville, wherever located, and shall also mean and include all
machinery, equipment, vehicles, furnishings and fixtures (as such term is
defined in Section 9-313(a) of the Code) now owned or hereafter acquired
by Xxxxxxx-Xxxxxx or Greenville, including without limitation, all items
of machinery and equipment of any kind, nature and description, whether
affixed to real property or not, as well as all additions to,
substitutions for, replacements of or accessions
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to any of the foregoing items and all attachments, components, parts
(including spare parts) and accessories whether installed thereon or
affixed thereto.
"General Intangibles" means all "general intangibles", as such term
is defined in Section 9-106 of the Code, now or hereafter owned by
Xxxxxxx-Xxxxxx or Greenville, including, without limitation, customer
lists, rights in intellectual property, goodwill, trade names, service
marks, trade secrets, patents, trademarks, copyrights, applications
therefore, permits, licenses, now owned or hereafter acquired by
Xxxxxxx-Xxxxxx or Greenville, but excluding items described in the
definition of Accounts.
"GM Agreements" means, collectively, this Agreement, the Purchase
Orders and the Accommodation Agreement.
"Instruments" means all "instruments", as such term is defined in
Section 9-105(i) of the Code.
"Intellectual Property" means all now existing or hereafter acquired
patents, trademarks, copyrights, inventions, licenses, discoveries,
processes, know-how, techniques, trade secrets, designs, specifications
and the like (regardless of whether such items are now patented or
registered, or registerable, or patentable in the future), and all
technical, engineering, or other information and knowledge, production
data and drawings, including without limitation, all items, rights and
property defined as Intellectual Property under 11 U.S.C. Section 101, as
amended from time to time.
"Inventory" means any "inventory", as such term is defined in Section
9-109(4) of the Code, wherever located, now owned or hereafter acquired by
Xxxxxxx-Xxxxxx or Greenville or in which Xxxxxxx-Xxxxxx or Greenville now
has or hereafter may acquire any right, title or interest, wherever
located, including, without limitation, all goods and other personal
property now or hereafter owned by Xxxxxxx-Xxxxxx or Greenville which are
leased or are held for sale or lease or are furnished or are to be
furnished under a contract of service or which constitute raw materials,
work in process or materials used or consumed or to be used or consumed in
Xxxxxxx-Xxxxxx'x or Greenville's business, or in the processing, packaging
or shipping of the same, and all finished goods.
"Lenders" means the several financial institutions party to the
Financing Agreement dated as of October 4, 1996 among Harvard,
Xxxxxxx-Xxxxxx, Greenville, the Borrowers named therein, The CIT
Group/Business Credit, Inc., as Agent and Lender, and such Lenders.
"Obligations" means Xxxxxxx-Xxxxxx'x and Greenville's obligations
under this Agreement and the other GM Agreements, including, without
limitation, the obligation to provide GM (or its designee) the Right to
Occupy as defined herein.
"Operating Assets" means all assets located at the Greenville Plant
(as defined below) and used in the production of Component Parts, including
Equipment, Contract
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Rights and General Intangibles (other than deposit accounts, insurance
refunds, tax refunds, tax refund claims and cash and cash
equivalents), but specifically excluding Inventory, Documents,
Instruments, accounts (as defined in the Code) and chattel paper (as
defined in the Code) (and cash or cash equivalent Proceeds of such
excluded items and of General Intangibles).
"Proceeds" shall have the meaning provided it under the Code.
"Real Estate" means, collectively, the ownership and/or leasehold
interests and related rights and interests in the premises described on
Schedule I attached hereto which is owned by Greenville (the "Greenville
Plant").
"Requirement of Law" means the charter and bylaws or other
organizational or governing documents of any entity, and any material law,
treaty, rule or regulation or determination of arbitration or a court or
other governmental authority, in each case applicable to or binding upon
any applicable person or entity or any of its property or to which such
entity or person or any of its property is subject.
2. Right of Access and Occupancy.
(a) Effective immediately, Xxxxxxx-Xxxxxx and Greenville, jointly
and severally, hereby xxxxx XX or its designee a fully-paid right to use
the Operating Assets and a right to use and occupy the Real Estate
(collectively, the "Right to Occupy") to manufacture Component Parts for
GM. Such Right to Occupy shall be effective immediately and shall expire
365 days after GM provides a Default Notice (as defined below) to
Xxxxxxx-Xxxxxx and Greenville (the "Occupancy Period"). Though
Xxxxxxx-Xxxxxx and Greenville acknowledge that, pursuant to the Right to
Occupy granted immediately above, GM has the immediate right to occupy and
use the Operating Assets and the Real Estate to manufacture Component
Parts, GM agrees that it will defer from exercising such rights until a
Default occurs and GM provides Xxxxxxx-Xxxxxx and Greenville written
notice thereof (the "Default Notice").
(b) GM's Obligations. If GM invokes its Right to Occupy (for
itself or its designee) by providing a Default Notice, GM shall:
(i) indemnify and hold Xxxxxxx-Xxxxxx, Greenville and their
officers and directors and Lenders harmless from any
and all costs, damages, liabilities or injury caused by
GM's or its designee's use of the Operating Assets and
the Real Estate during that portion of the Occupancy
Period during which GM is using and occupying the
Operating Assets and the Real Estate (the "Operating
Period");
(ii) insure (by continuing in force then existing
Xxxxxxx-Xxxxxx or Greenville insurance if it is more
economical to do so) and maintain the Operating Assets
and the Real Estate in the same
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condition as existed on the first day of the
Operating Period, ordinary wear and tear excepted;
(iii) pay all actual costs and expenses incurred in
connection with the manufacturing of Component Parts
during the Operating Period, including, without
limitation, utilities and other overhead expenses,
prorated property taxes and assessments attributable to
the Operating Assets and Real Estate, any payments due
on account of any of the Operating Assets which are
leased from third parties (without acceleration), and
regularly scheduled monthly principal and interest
payments with respect to term loans to Xxxxxxx-Xxxxxx
or Greenville for equipment comprising a portion of the
Operating Assets, without acceleration and without
regard to any balloon payments.
(iv) subject to GM's or its designee's right to use and
occupancy of the Operating Assets and the Real Estate
during the Operating Period, afford Xxxxxxx-Xxxxxx'x
and Greenville's representatives (and representatives
of Lenders, secured creditors or mortgagees of the
Operating Assets and/or Real Estate) reasonable access
to inspect the Operating Assets and the Real Estate;
(v) subject to Xxxxxxx-Xxxxxx'x and Greenville's other
customers agreeing to (a) make payment to GM or its
designee on account of their allocable share of
overhead and related expenses and all direct expenses
related to such other customer's production, and (b)
Xxxxxxx-Xxxxxx, Greenville or Lenders making the
necessary tangible personal property available for use
during the Operating Period, GM agrees, for itself and
its designee, to produce component parts for such other
customers during the Operating Period or to provide the
other customers access provided such customers do not
interfere with the production of Component Parts;
(vi) comply with the following:
(a) During the Operating Period, Xxxxxxx-Xxxxxx and/or
Greenville, as applicable, shall continue to
employ their respective employees who work at the
Greenville Plant whose employment, in the
discretion of GM, is necessary to maintain
continued production of the Component Parts (the
"Greenville Employees") for the benefit of GM or
GM's designee, and GM or its designee shall
reimburse Xxxxxxx-Xxxxxx and Greenville for all
costs and expenses relating to Xxxxxxx-Xxxxxx'x
and Greenville's employment of the Greenville
Employees, which are incurred during the
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Operating Period. Without limiting the generality
of the foregoing, GM or its designee shall
reimburse Xxxxxxx-Xxxxxx and Greenville all
amounts incurred by Xxxxxxx-Xxxxxx and Greenville
to meet their regular payroll obligations,
including without limitation, salaries, wages,
payroll taxes, workers' compensation, unemployment
insurance, disability insurance, welfare, pension
and other payments and contributions required to
be made by Xxxxxxx-Xxxxxx or Greenville with
respect to the Greenville Employees, which are
incurred during the Operating Period, but in no
event will GM be liable for any costs or expenses
relating to service prior to the time GM exercises
its Right to Occupy including, without limitation,
the costs of unfunded pension liability.
Notwithstanding the foregoing, Xxxxxxx-Xxxxxx and
Greenville may, at their sole cost and expense,
continue to employ employees not involved in the
production of Component Parts (the "Other
Employees") but under no circumstances will GM be
responsible for reimbursing Xxxxxxx-Xxxxxx or
Greenville for costs and expenses relating to
Xxxxxxx-Xxxxxx'x or Greenville's employment of the
Other Employees, or the Greenville Employees to
the extent the Greenville Employees are performing
services unrelated to the production of the
Component Parts.
(b) During the Operating Period, Xxxxxxx-Xxxxxx or
Greenville shall not increase compensation or
benefits of the Greenville Employees except as
may be required by applicable law or pursuant to
contracts in existence prior to the commencement
of the Operating Period.
(c) Xxxxxxx-Xxxxxx and Greenville, jointly and
severally, shall indemnify, defend and hold GM,
its designee and their respective employees and
agents harmless from any and all costs, expenses
(including reasonable attorneys' fees), losses,
damages, liabilities or injury arising from claims
or liabilities arising or accruing prior to the
first day of the Operating Period, regardless of
when such claims are asserted.
(c) Right to Terminate. GM shall have the right to terminate the
Operating Period upon ten (10) days written notice to Xxxxxxx-Xxxxxx.
Upon expiration of the referenced notice period, the Operating Period
shall terminate and, except for the obligations referenced in subparagraph
2(b)(i) and payment of any amounts payable under subparagraphs 2(b)(i)
through 2(b)(vi) above not paid as of the termination of the
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Operating Period, GM shall have no further obligations or liabilities to
Xxxxxxx-Xxxxxx, Greenville, Harvard or Lenders.
(d) SPECIFIC PERFORMANCE. IN CONNECTION WITH ANY ACTION OR
PROCEEDING TO ENFORCE GM'S RIGHT TO OCCUPY, XXXXXXX-XXXXXX AND GREENVILLE
ACKNOWLEDGE THAT GM WILL NOT HAVE AN ADEQUATE REMEDY AT LAW, THAT THE
OPERATING ASSETS AND REAL ESTATE ARE UNIQUE AND GM SHALL BE ENTITLED TO
SPECIFIC PERFORMANCE OF GREENVILLE'S AND XXXXXXX-XXXXXX'X OBLIGATIONS TO
GM UNDER THIS AGREEMENT.
(e) Appointment of Receiver. In addition to any rights and
remedies GM may have under the terms of this or any other agreement
between GM and Xxxxxxx-Xxxxxx, Greenville and/or Harvard, GM shall have
the right to the appointment of a receiver to effectuate its Right to
Occupy. In connection with any hearing on the appointment of a receiver,
Xxxxxxx-Xxxxxx and Greenville agree that at least seventy-two (72) hours
actual notice of any request for a hearing on such appointment shall be
adequate notice and that the only issue to be litigated in any such
hearing will be whether or not a Default has occurred.
(f) IRREPARABLE HARM; LIMITATION OF NOTICE. XXXXXXX-XXXXXX AND
GREENVILLE ACKNOWLEDGE THAT GM WILL SUFFER IRREPARABLE HARM IF
XXXXXXX-XXXXXX AND GREENVILLE FAIL TO COOPERATE WITH GM IN ALLOWING GM TO
EXERCISE ITS RIGHTS UNDER THIS AGREEMENT. ACCORDINGLY, PROVIDED THAT
XXXXXXX-XXXXXX AND GREENVILLE RECEIVE AT LEAST FORTY-EIGHT (48) HOURS
ACTUAL NOTICE OF ANY REQUEST FOR HEARINGS IN CONNECTION WITH PROCEEDINGS
INSTITUTED BY GM, XXXXXXX-XXXXXX AND GREENVILLE. WAIVE TO THE FULLEST
EXTENT POSSIBLE UNDER APPLICABLE LAW, THE RIGHT TO NOTICE IN EXCESS OF 48
HOURS IN CONNECTION WITH ANY JUDICIAL PROCEEDINGS INSTITUTED BY GM IN
CONNECTION WITH THE ENFORCEMENT OF ITS RIGHTS UNDER THIS AGREEMENT.
4. Obligation to Purchase Inventory. If GM invokes the Right to
Occupy, GM shall purchase all raw materials, work in process and finished goods
inventory (other than such items that are owned by GM and provided to
Xxxxxxx-Xxxxxx or Greenville on consignment or bailment) related to goods
produced by Xxxxxxx-Xxxxxx or Greenville for GM at the Greenville Plant which
are usable by GM and in a merchantable condition (the "GM Greenville
Inventory"). For purposes of this Agreement, the term "usable" means usable in
the production of Component Parts at the Greenville Plant in the quantities
called for by GM in effect as or the date GM exercises the Right of Access. GM
will purchase the GM Greenville Inventory (free and clear of all liens and
security interests) for the following amounts:
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(a) For raw materials, ninety percent (90%) of Xxxxxxx-Xxxxxx'x or
Greenville's actual invoice cost;
(b) For work in process, the pro-rated current Purchase Order
price for the Component Part in question based on a percentage of
completion, and
(c) For finished goods, the price called for by the underlying
Purchase Order, as amended from time to time to reflect any price changes
agreed to by Xxxxxxx-Xxxxxx and/or Greenville and GM.
Within three (3) business days of the date GM invokes the Right to Occupy, GM
and Lenders, or their respective designees, will undertake a physical
inventory of the GM Greenville Inventory, which physical inventory shall be
completed within twenty (20) business days from the date GM exercises the Right
to Occupy. GM shall make payment to Lenders for Greenville's account, for the
GM Greenville Inventory within five (5) business days after completion of the
physical inventory. The forgoing payment shall be free and clear of any rights
of setoff or recoupment. Xxxxxxx-Xxxxxx and Greenville acknowledge that the
foregoing prices to be paid for the GM Greenville Inventory by GM constitute
commercially reasonable prices, and that any sale by Lenders pursuant to the
foregoing shall be deemed to be commercially reasonable in all respects,
including method, time, place and terms.
5. Bankruptcy Court Approvals. Xxxxxxx-Xxxxxx and Greenville hereby
agree that in the event Xxxxxxx-Xxxxxx and/or Greenville seek protection under
or become subject to Chapter 11 of the Bankruptcy Code, the terms of a
financing order submitted to the Bankruptcy Court for approval will contain a
provision confirming GM's rights under the Accommodation Agreement and this
Agreement and Xxxxxxx-Xxxxxx and Greenville will exercise their best efforts in
good faith to obtain the Bankruptcy Court's approval of such provision.
6. Rights of GM: Limitations on GM's Obligations. Unless GM exercises
its Right to Occupy, in which case GM shall have the obligations outlined in
Section 2(b) above, GM shall not have any obligation or liability by reason of
or arising out of this Agreement, nor shall GM be required or obligated in any
manner to perform or fulfill any of the obligations of Xxxxxxx-Xxxxxx or
Greenville.
7. Remedies. Subject to the terms of any agreement between GM and
Lenders, upon Default, GM shall have all rights and remedies provided in this
Agreement and in any other agreements with Xxxxxxx-Xxxxxx, Greenville or
Harvard. Further, all of GM's rights and remedies under this Agreement are
cumulative and not exclusive of any rights and remedies under any other
agreement or under applicable law.
8. Injunctive Relief. Given that GM will incur significant damages if
Xxxxxxx-Xxxxxx or Greenville fail to timely satisfy its obligations to GM and
GM's operations are materially and negatively impacted, and because GM does not
have an adequate remedy at law and would be irreparably harmed by such events,
Xxxxxxx-Xxxxxx and Greenville agree that GM shall be entitled
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to injunctive relief (both prohibitive and mandatory) in connection with any
actual or threatened violations of any terms or conditions of this Agreement.
GM agrees to provide Lenders notice of any proceeding seeking injunctive relief
simultaneous with providing such notice to Xxxxxxx-Xxxxxx or Greenville.
9. Representations and Warranties. Xxxxxxx-Xxxxxx and Greenville,
jointly and severally, hereby represent and warrant to GM that:
(a) Accuracy of Information. All information, certificates or
statements given to GM pursuant to this Agreement shall be true and
complete in all material respects, when given.
(b) Authority. Xxxxxxx-Xxxxxx and Greenville have the authority
to provide to GM all of the rights and interests provided to GM hereunder.
The individuals signing this Agreement on behalf of Xxxxxxx-Xxxxxx and
Greenville are authorized representatives of each of such respective
companies, and have the power and authority to bind Xxxxxxx-Xxxxxx and
Greenville, as applicable, to the terms and conditions of this
Agreement.
(c) Description of Real Estate. The legal description of the Real
Estate attached as Schedule I is a complete and accurate description of
the Real Estate and includes all property on which all buildings and other
facilities of the Greenville Plant necessary for the production of
Component Parts are located.
10. Covenants. Xxxxxxx-Xxxxxx and Greenville covenant and agree with GM
that from and after the date of this Agreement until the Obligations we paid in
full:
(a) Further Documentation. At any time and from time to time,
upon the written request of GM, and at the sole expense of Xxxxxxx-Xxxxxx
and Greenville, Xxxxxxx-Xxxxxx and Greenville will promptly and duly
execute and deliver any and all such further instruments and documents and
take such further action as GM may reasonably request, subject to existing
obligations of Harvard, Xxxxxxx-Xxxxxx or Greenville to parties other than
GM, for the purpose of obtaining the full benefits of this Agreement and
of the rights and powers herein granted.
(b) Payment of Obligations. Subject to Section 3(b) above, if GM
invokes the Right to Occupy, Xxxxxxx-Xxxxxx and Greenville will pay
promptly when due, all taxes, assessments and governmental charges or
levies imposed upon the Operating Assets, the Real Estate or in respect of
its income or profits therefrom, as well as all claims of any kind
(including, without limitation, claims for labor, materials and supplies)
against or with respect to the Operating Assets and the Real Estate.
(c) Sales or Dispositions of Operating Assets: Certain Uses
Prohibited. Xxxxxxx-Xxxxxx and Greenville will not sell or otherwise
dispose of any Operating Assets or the Real Estate except in the ordinary
course of business. Further, Xxxxxxx-Xxxxxx and
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Greenville will not use any of the Operating Assets or Real Estate in any
way which would materially adversely affect GM's rights and remedies under
this Agreement.
(d) Limitations on Modifications of Agreements, etc.
Xxxxxxx-Xxxxxx and Greenville will not, other than in the ordinary course
of business, (i) amend, modify, terminate or waive any provision of any
Contract which might materially adversely affect GM's Right to Occupy, or
(ii) fail to exercise promptly and diligently each and every right which
it may have under each Contract in an manner which could materially and
adversely affect GM's rights and remedies under this Agreement.
(e) Maintenance or Insurance. Subject to Section 2(b),
Xxxxxxx-Xxxxxx and Greenville shall, at their expense, keep and maintain
the Operating Assets and the Real Estate insured against all risk of loss
or damage from fire, theft, malicious mischief, explosion, sprinklers, and
all other hazards and risks of physical damage included within the meaning
of the term "extended coverage" in such amounts as are ordinarily insured
against by other owners of similar businesses.
(f) Right of Inspection: Cooperation. In addition to any rights
GM may have under the Purchase Orders, GM and its representatives shall,
upon reasonable request and reasonable times, have the right to enter into
and upon any premises where any of the Operating Assets and the Real
Estate are located for the purpose of inspecting the same, observing its
use or otherwise protecting GM's interests therein. GM will take
reasonable steps to maintain the confidentiality of information obtained
by GM, except as required by law.
11. Secured Party and Lessor Acknowledgments.
(a) Simultaneously with the execution of this Agreement,
Xxxxxxx-Xxxxxx will deliver to GM acknowledgements from the Lenders, in
the form of Exhibit 11-A. Consent of the Lenders is a precondition to the
effectiveness of this Agreement and the Accommodation Agreement.
(b) Within 30 days of the execution of this Agreement,
Xxxxxxx-Xxxxxx will exercise its best efforts deliver to GM
acknowledgements from lessors of certain equipment located in the
Greenville plant, in the form of Exhibit 11-B.
(c) If subsequent to the execution of this Agreement, Xxxxxxx-Xxxxxx
or Greenville intends to grant additional or further security interests,
liens or mortgages in the Operating Assets to any party other than
Lenders, five business days prior of granting such liens, security
interests or mortgages Xxxxxxx-Xxxxxx or Greenville shall deliver to GM an
acknowledgment from such secured creditors and/or mortgagees in a form
substantially similar to Exhibit 11-A.
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12. Limitation on Setoffs. For the benefit of Lenders only and subject
to Lenders' compliance with the terms of Exhibit 11-A and Lenders otherwise not
materially interfering with GM's Right to Occupy, GM agrees:
(a) If GM invokes the Right to Occupy, GM will pay to Lenders, for
Greenville's account, all outstanding bona fide accounts payable due
Greenville net of (i) ordinary course of business setoffs (short
shipments, defective product, mathematical errors, etc.) and (ii) any
damages incurred or to be incurred by GM as a result of Greenville's
breaches of its obligations to GM, provided, however, that the aggregate
setoffs under (i) and (ii) shall be limited to 15% of outstanding bona
fide accounts payable due to Greenville.
(b) 25% of the net amount due by GM under subparagraph (a) above will be
paid at or prior to the time GM invokes the Right to Occupy.
(c) The balance of the amount owing by GM under subparagraph (a) above
will be paid within 30 days of GM's invocation of the Right to Occupy.
(d) For purposes of this paragraph 12, the term bona fide means arising
in the ordinary course of business from goods or services actually
received by GM as called for by the Purchase Orders.
13. Term. The rights granted GM under this Agreement shall continue as
long as the Purchase Orders between Xxxxxxx-Xxxxxx and/or Greenville and GM
with respect to Component Parts are in effect (exclusive of the termination of
such Purchase Orders by Xxxxxxx-Xxxxxx and/or Greenville). Nevertheless, the
Access and Occupancy Period shall be limited as provided in Section 2(a).
Notwithstanding the forgoing, the termination of this Agreement shall not
affect the parties' rights, duties and obligations under the Accommodation
Agreement.
14. Confidential Information and Data. To the extent the Operating
Assets include or GM (or its designee) otherwise comes into possession of or
becomes aware of, Xxxxxxx-Xxxxxx'x or Greenville's trade secrets or proprietary
information during the Operating Period, GM (and its designee) shall (a) keep
such information, data and trade secrets confidential, and (b) only use such
information, data and trade secrets during the Operating Period in connection
with producing Component Parts. The provisions of this paragraph shall survive
termination of this Agreement.
15. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Section Headings, etc. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into
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consideration the interpretation hereof. All references to Sections, Schedules
and Exhibits are to Sections, Schedules and Exhibits in or to this Agreement
unless otherwise specified.
17. No waiver: Cumulative Remedies. GM shall not by any act, delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
under this Agreement or any breach of the terms and conditions of this
Agreement. A waiver by GM of any right or remedy under this Agreement on any
one occasion shall not be construed as a bar to any right or remedy which GM
would otherwise have had on any future occasion. No failure to exercise nor
any delay in exercising on the part of GM any right, power or privilege under
this Agreement, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege under this Agreement preclude
any other or future exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies under this Agreement are cumulative and
may be exercised singly or concurrently, and are not exclusive of any rights
and remedies provided by any other agreements or applicable law.
18. Waivers and Amendments. Successors and Assigns. Governing Law.
None of the terms or provisions of this Agreement may be waived, altered,
modified or amended except by a written instrument, duly executed by
Xxxxxxx-Xxxxxx, Greenville and GM. This Agreement and all obligations of
Xxxxxxx-Xxxxxx and Greenville hereunder shall be binding upon the successors
and assigns of Xxxxxxx-Xxxxxx and Greenville, and shall, together with the
rights and remedies of GM hereunder, inure to the benefit of GM and its
successors and assigns. Xxxxxxx-Xxxxxx and Greenville may not assign or
transfer any of their respective rights or obligations hereunder without the
prior written consent of GM. This Agreement shall be governed by, and be
construed and interpreted in accordance with, the laws of the State of
Michigan, without regard to principles regarding conflict of laws.
19. Notices All notices, requests and other communications that are
required or may be given under this Agreement shall be in writing, and shall be
deemed to have been given on the date of delivery, if delivered by hand,
telecopy or courier, or three (3) days after mailing, if mailed by certified or
registered mail, postage prepaid, return receipt requested, addressed as set
forth below (which addresses may be changed, from time to time, by notice given
in the manner provided in this Section):
If to Xxxxxxx-Xxxxxx Harvard Industries, Inc.
or Greenville; 0000 X. Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
and a copy to: Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
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If to GM: General Motors Corporation
Worldwide Purchasing
Delphi Automotive Systems
Energy & Engine Management Systems
0000 X. Xxxxxxx Xx.
X.0. Xxx 0000
Xxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Director
with a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
20. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
21. Entire Agreement: Conflicts. This Agreement together with any
other agreements and schedules executed in connection with this Agreement
constitutes the entire understanding of the parties in connection with the
subject matter hereof This Agreement may not be modified, altered or amended
except by an agreement in waiting signed by GM, Xxxxxxx-Xxxxxx and Greenville.
To the extent any terms or conditions of this Agreement are inconsistent or
conflict with the terms of any other agreements between the parties, the terms
of this Agreement shall govern and control,
22. Preservation of Rights under Purchase Orders. The purpose of this
Agreement is to expand upon the rights and interests of GM under the Purchase
Orders and by entering into this Agreement GM is not waiving or limiting any
lights GM has under the Purchase Orders. This Agreement shall be deemed to be
incorporated by reference into, and shall be part of, all existing and future
Purchase Orders without any specific reference to this Agreement in any such
Purchase Orders.
23. CONSULTATION WITH COUNSEL. THE PARTIES HERETO ACKNOWLEDGE THAT THEY
HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL BEFORE EXECUTING THIS
AGREEMENT AND ARE EXECUTING SUCH AGREEMENT WITHOUT DURESS OR COERCION AND
WITHOUT RELIANCE ON ANY REPRESENTATIONS, WARRANTIES OR COMMITMENTS OTHER THAN
THOSE REPRESENTATIONS, WARRANTIES AND COMMITMENTS SET FORTH IN THIS AGREEMENT.
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24. WAIVER OF JURY TRIAL. THE PARTIES HERETO ACKNOWLEDGE THAT THE
RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE
WAIVED. THE PARTIES EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION,
WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN
RELATION TO THIS AGREEMENT OR ANY OTHER AGREEMENTS BETWEEN THE PARTIES. NO
PARTY SHALL BE DEEMED TO HAVE RELINQUISHED THE BENEFIT OF THIS WAIVER OF JURY
TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN INSTRUMENT SIGNED BY THE PARTY
TO WHICH SUCH RELINQUISHMENT WILL BE CHARGED.
XXXXXXX-XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Its: President
---------
STATE OF Michigan )
) SS
COUNTY OF Oakland )
The foregoing instrument was acknowledged before me this 12 day of
March, 1997 by Xxxxx X. Xxxxxxx, the President, of Xxxxxxx-Xxxxxx, Inc., a
Delaware corporation, on behalf of the corporation.
/s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Niemist, Notary Public
Oakland County, Michigan
My commission expires: 5/20/97
[signatures continued on next page]
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[signatures continued from previous page]
XXXXXXX-XXXXXX GREENVILLE, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Its: President
---------
STATE OF Michigan )
) SS
COUNTY OF Oakland )
The foregoing instrument was acknowledged before me this 12 day of
March, 1997 by Xxxxx X. Xxxxxxx, the President, of Xxxxxxx-Xxxxxx Greenville,
Inc., a Delaware corporation, on behalf of the corporation.
/s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx, Notary Public
Oakland County, Michigan
My commission expires: 5/20/97
[signatures continued on next page]
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[signatures continued from previous page]
GENERAL MOTORS CORPORATION
By: /s/
-----------------------
Its: ---------------
STATE OF )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of _____,
1997 by _________________, the ________________________ of General Motors
Corporation, a Delaware corporation, on behalf of the corporation.
---------------------------
Notary Public
--------------,
County
--------------
My commission expires:
--------
SCHEDULES
I - Real Estate
EXHIBITS
11-A - Lender's Acknowledgement and Consent
11-B - Equipment Lessors' Acknowledgment and Consent
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SCHEDULE I
REAL ESTATE
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Xxxxxx County, Tennessee
SCHEDULE I
BEGINNING at a spike at the intersection of the Xxxx Xxxxxx Xxxx xxx xxx Xxx
Xxxxx Xxxxx Xxxx: thence with the center of the Old Stage Coach Road the
following four (4) calls: N 86 degrees 07' 15" E, 284.86 feet: N 88 degrees
54' 31" E, 136.96 feet: S 89 degrees 53' 58" E, 287.65 feet: end N 88 degrees
18' 18" E, 358.32 feet to a point in the center of the Old Stage Road: thence
leaving the Old Stage Coach Road and with the Ottingers line and the fence line
S 04 degrees 36' 20" W, 375.74 feet to a fence post: thence continuing with the
fence line and the Xxxxxxxx line S 05 degrees 21' 03" W. 456.74 feet to a point
in the fence line: thence continuing with the Xxxxxxxx'x line and thence line
S 68 degrees 21' 02" N, 165.00 feet to an iron pin: thence containing with the
Xxxxxxxx line S 23 degrees 38' 58" E, 74.58 feet to an iron pin in the center
of the Old School House Lane and in the line of the several property: thence
with the center of the School House Lane and the Several line the following two
(2) calls: S 61 degrees 42' 45" W, 121.26 feet and S 63 degrees 20' 40" W,
146.69 feet: thence continuing with the center of the School House Lane and
with the Faith Temple Church line and the Xxxxxx line S 63 degrees 00' 33" W,
398.32 feet to an iron pin corner to Xxxxxx and Xxxxxxx: thence with the
Xxxxxxx line and the center of an old dirt lane N 34 degrees 17' 14" W, 53.10
feet to a spike in the Xxxx Xxxxxx Road: thence with the Xxxx Xxxxxx Road:
thence with the Xxxx Xxxxxx Road the following three (3) calls: N 03 degrees
03' 14" N, 146.51 feet: N 00 degrees 55' 58" W, 332.62 feet; and N 01 degrees
31' 20" W, 377.25 feet to the BEGINNING.
BEING the same property conveyed to Xxxxxxx-Xxxxxx Limited Partnership by
Special Warranty Deed dated July 20, 1990, filed for record in the office of
the Register of Deeds for Xxxxxx County, Tennessee, on July 26, 1990, at 2:30
P.M. in Deed Book 422, Page 33.
20
EXHIBIT 11-A
LENDERS'
ACKNOWLEDGEMENT AND CONSENT
While not a party to the foregoing Access and Occupancy Agreement or
the other GM Agreements (as defined in the Access and Occupancy Agreement)
between General Motors Corporation ("GM"), Xxxxxxx-Xxxxxx Greenville, Inc.
("Greenville"), and Xxxxxxx-Xxxxxx, Inc. ("Xxxxxxx-Xxxxxx"), dated as of March
12, 1997, Congress Financial Corporation General Electric Capital Corporation
Xxxxxx Financial, Inc., Fidora Capital Corporation and Foothill Capital
Corporation ("Lenders") are parties to various loan and/or security agreements
with Harvard Industries, Inc. and/or Xxxxxxx-Xxxxxx and/or Greenville. In such
capacity, Lenders acknowledge, consent to, and agree that their security
interests in Xxxxxxx-Xxxxxx'x and Greenville's assets shall be subject to, the
terms and conditions of the GM Agreements. The fact that Lenders are executing
this Acknowledgment and Consent shall not in any way make Lenders guarantors or
sureties for Xxxxxxx-Xxxxxx'x and Greenville's performance under the GM
Agreements. However, for good and valuable consideration, the receipt and
sufficiency of which is herby acknowledged, the Lenders agree that in the event
Xxxxxxx-Xxxxxx and/or Greenville file for relief under, or become subject to,
Chapter 11 of the Bankruptcy Code and the Lenders parties to a proposed
post-petition financing order, the Lenders will exercise their reasonable
commercial efforts in good faith to include in the provisions of such order a
provision expressly confirming GM's rights under the Accommodation Agreement
and the Access and Occupancy Agreement.
Lenders' Acknowledgement and Consent as set forth herein is provided in
reliance upon, and the express understanding that, (i) neither the Access and
Occupancy Agreement nor the Accommodation Agreement will be amended without the
Lenders' prior written consent and (ii) the Lenders are third party
beneficiaries of the provisions of paragraph 4 of the Access and Occupancy
Agreement.
By:
---------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
for itself and as agent for the Lenders
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------
Title: Vice President
-----------------------
Date: April 16, 1997
--------
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EXHIBIT 11-B
EQUIPMENT LESSORS'
ACKNOWLEDGEMENT AND CONSENT
While not a party to the foregoing Access and Occupancy Agreement between
General Motors Corporation, Xxxxxxx-Xxxxxx, Inc. ("Xxxxxxx-Xxxxxx") and
Xxxxxxx-Xxxxxx Greenville, Inc. ("Greenville"), the undersigned leases certain
equipment located at the Greenville Plant to Xxxxxxx-Xxxxxx or Greenville and,
in such capacity, the undersigned acknowledges, consents to and agrees that
General Motors Corporation can occupy and use these Operating Assets which are
the subject matter of those certain lease agreements executed by and between
Xxxxxxx-Xxxxxx, Inc. and Caterpillar Financial Services Corporation ("Leases")
pursuant to the terms and conditions of said Leases.
/s/
------------------------------------------
Caterpillar Financial Services Corporation
Date: April 11, 1997
