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EXHIBIT 10.31
AMENDED AND RESTATED AGREEMIENT
THIS AMENDED AND RESTATED AGREEMENT (the "Agreement"), entered into as
of the _ day of April, 1998, is by and between Talon Automotive Group L.L.C., a
Michigan limited liability company ("TAG") and Talon L.L.C., a Michigan limited
liability company ("Talon").
WHEREAS, TAG and Talon entered into that certain Agreement dated July
1, 1997 (the "Agreement"), pursuant to which Talon agreed to provide certain
services to the TAG Group (as hereinafter defined), as provided therein;
WHEREAS, the parties hereto desire to amend and restate the Agreement
upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premise and the covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby amend and
restate the Agreement in its entirety as follows:
1. Engagement. TAG hereby engages Talon, and Talon agrees to provide
to the TAG Group, the following services (the "Services"), upon the terms and
conditions set forth herein:
a. Insurance/Employee Benefit Administration Assistance. Talon
shall assist the TAG Group, as requested from time to time, in
connection with the development and implementation of
property/casualty, employee benefits, insurance portfolio submissions
and applications.
b . Accounting/Financial Assistance Services. Talon shall assist
the TAG Group, as requested from time to time, in connection with the
administration of various accounting/financial matters, including the
annual financial audits with their independent auditors and
institutional financing matters.
C. Tax Assistance Services. Talon shall prepare drafts of federal
and state income and franchise tax returns for TAG's review and
approval, and, if requested, represent the TAG Group before Internal
Revenue service and state taxing authorities regarding disputes as to
tax liability. Talon shall also assist the TAG Group, as requested
from time to time, in connection with review of depreciation systems,
payroll tax matters, and tax considerations of proposed transactions,
and advise the TAG Group as requested from time to time as to the
effect of various tax provisions of federal and state law.
d . Acquisition Assistance. Talon shall assist the TAG Group as
requested from time to time in connection with various acquisition
matters, including providing assistance with respect to the
structuring, negotiation and financing thereof.
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Notwithstanding anything contained herein to the contrary, in no event
shall Talon provide or be responsible for providing (i) any management services
for the TAG Group of any kind, or (ii) any services with respect to the
planning, supervision or overseeing of the management or operations (including
safety or regulatory compliance matters) of the TAG Group of any kind. In
addition, nothing contained herein shall require Talon to provide any services
which would be in contravention of law or which would disrupt Talon's provision
of services for its own business, and, in no event shall Talon be required to
retain any additional employees in order to accommodate TAG's request for any
services hereunder.
2. Term. Unless terminated earlier pursuant to Section 4 hereof, the
initial term of this Agreement shall commence as of the date hereof and continue
for a period of one (1) year following July 1, 1997; provided, however, this
Agreement shall be automatically renewed for successive one (1) year periods
thereafter, unless either party provides written notice of nonrenewal to the
other within ninety (90) days prior to the expiration of the initial term or any
such renewal term or unless otherwise terminated pursuant to Section 4 hereof.
3. Compensation. As compensation for the services to be rendered by
Talon pursuant to this Agreement, TAG shall pay to Talon an annual fee in an
amount equal to Five Hundred Thousand ($500,000) Dollars, which annual fee shall
be subject to adjustment by the mutual agreement of TAG and Talon, and which
annual fee shall be paid in twelve (12) equal monthly installments commencing as
of the date hereof and continuing on the first day of each month thereafter
during the term of this Agreement. If the term of this Agreement commences or
terminates during any calendar month, then the monthly installment for such
calendar month shall be pro rated based upon the number of days during such
month in which this Agreement was in effect in relation to the total number days
of such month.
4. Default and Termination. If either party hereto defaults in the
performance of any of its obligations hereunder, and such default continues for
a period of thirty (30) days after written notice thereof to the other party,
such other party shall have the right to terminate this Agreement immediately
upon notice thereof to the defaulting party.
5. Confidentiality.
a. In connection with the services provided hereunder, TAG or Talon
may provide or disclose to the other certain confidential and
proprietary information concerning their respective businesses,
including, without limitation, certain confidential and proprietary
information regarding the machines, processes, practices, products,
inventions, developments, customers, employees, contracts,
relationships, financial condition, and other information, data and
documents relating thereto (the "Confidential Information").
Accordingly, TAG and Talon hereby agree that, during the term of this
Agreement, and for a period of two (2) years thereafter, to:
i. hold in confidence all Confidential Information relating to
the other and not disclose any such Confidential Information to any
third party without the
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prior written consent of the party providing or disclosing such
Confidential Information; and
ii. use all Confidential Information relating to the other
solely for purposes of this Agreement and for no other purpose
whatsoever.
b. The obligations of the parties set forth in this Section 5 shall
not apply to any information which:
i. is in the public domain at the time of disclosure or becomes
part of the public domain through no violation of this Agreement or
any other agreement between the parties; or
ii. either party is require to disclose by law.
6. Definition. For purposes hereof, "TAG Group" shall mean and include
TAG, Hawthorne Metal Products Co., J & R Manufacturing, Inc., VS Holdings Inc.,
Production Stamping, Inc., Xxxxxx Holdings USA, Inc., and Xxxxxx Metal Products
Company, together with their successors in interest and those additional
entities mutually agreed in writing by TAG and Talon after the date hereof to be
included in the TAG Group.
7. No Warranties. TALON MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO
THE SERVICES PROVIDED HEREUNDER, AND ALL WARRANTIES, EXPRESSED OR IMPLIED, ARE
HEREBY DISCLAIMED AND EXCLUDED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TALON'S SOLE LIABILITY
HEREUNDER SHALL BE LIMITED TO THE AMOUNTS PAID TO IT PURSUANT TO SECTION 2
HEREOF, AND IN NO EVENT SHALL TALON BE LIABLE FOR ANY FEES, COSTS, LOST PROFITS,
INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF
THIS AGREEMENT OR OTHERWISE.
8. Notices. All notices and demands of any kind which either party
hereto may be required to or desires to serve upon the other party under the
terms of this Agreement shall be in writing and shall be served by personal
service upon such other party or by mailing a copy thereof by certified mail,
postage prepaid, with return receipt requested, addressed as follows:
If to TAG: Talon Automotive Group L.L.C.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: President
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If to Talon: Talon L.L.C.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: President
In the case of service by mail, it shall be deemed complete on the day
of actual delivery as shown by the addressee's registered or certified mail
receipt or at the expiration of the third business day after the date of
mailing, whichever first occurs. The addresses to which notices and demands
shall be delivered or sent may be changed from time to time by notice served as
provided herein by either party upon the other party.
9. Amendments. Any and all amendments to this Agreement shall be in
writing signed by each of the parties hereto.
10. Assignment. Neither party may assign this Agreement or any
interest herein without the prior written consent of the other party. This
Agreement shall be binding upon and shall inure to the benefit of the heirs,
executors, administrators, successors and assigns of the parties hereto.
11. Headings. The headings of the various sections of this Agreement
are inserted solely for convenience of reference, and are not a part of and are
not intended to govern, limit or aid in the construction of any term or
provision hereof.
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Michigan.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
and year first above written.
TALON AUTOMOTIVE GROUP L.L.C. TALON L.L.C.
By: By:
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