ACCESS AND SECURITY AGREEMENT
Amcast Industrial Corporation ("Supplier") and General Motors
Corporation ("GM" or the "Customer"), enter into this Access and Security
Agreement (the "Agreement") on August 28, 2003.
RECITALS
A. Pursuant to certain purchase orders and/or supply contracts issued
by the Customer to Supplier (collectively, the "Purchase Orders"), Supplier is
obligated to manufacture and supply the Customer with the Customer's
requirements for certain Component Parts (as defined below).
B. KeyBank National Association and certain other financial
institutions (collectively, with KeyBank National Association, the "Bank" or
"Lender") provide substantially all of Supplier's financing.
C. Customer has agreed to make certain accommodations to Supplier and
Lender pursuant to an Accommodation Agreement dated as of the date hereof (the
"Accommodation Agreement"), among the Customer, the Supplier and the Lender. It
is a condition of the Accommodation Agreement that Supplier execute and deliver
this Agreement with regard to each of Supplier's facilities listed on Exhibit A
attached hereto.
D. Supplier acknowledges that any delay in production of the Component
Parts or default under the Purchase Orders may cause the Customer irreparable
harm.
E. The Supplier is entering into this Agreement for the benefit of
Customer to afford the Customer the right to use certain of Supplier's assets as
provided below if a "Default" (as defined below) occurs and to induce Customer
to defer its right to resource existing business.
BASED ON THE FOREGOING RECITALS which are incorporated as
representations and warranties of the parties, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Supplier
and the Customer agree as follows:
TERMS AND CONDITIONS
1. Defined Terms. In addition to those terms defined elsewhere in this
Agreement, the following terms have the indicated meanings, unless the context
otherwise requires:
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"Accounts" means any "account" or "chattel paper," as defined
in Sections 9-102(a)(2) and 9-102(a)(11), respectively, of the Code,
owned now or hereafter by Supplier, and shall also mean and include (i)
all accounts receivable, contract rights, book debts, notes, drafts,
instruments, documents, acceptances, payments under leases and other
forms of obligations, now owned or hereafter received or acquired by or
belonging or owing to Supplier (including under any trade name, styles,
or division thereof) whether arising out of goods sold or leased or
services rendered by Supplier or from any other transaction, whether or
not the same involves the sale of goods or services by Supplier
(including, without limitation, any such payment obligation or right to
payment which might be characterized as an account, contract right,
general intangible, or chattel paper under the Uniform Commercial Code
in effect in any jurisdiction); (ii) all monies due to or to become due
to Supplier under all contracts for the sale or lease of goods or the
performance of services by Supplier (whether or not yet earned by
performance on the part of Supplier) now in existence or hereafter
arising; and (iii) deposit accounts, insurance refunds, tax refunds,
tax refund claims and related cash and cash equivalents, now owned or
hereafter received or acquired by or belonging or owing to Supplier.
"Code" means the Uniform Commercial Code as in effect in the
State of Michigan as of the date of this Agreement.
"Component Parts" shall mean all goods to be manufactured or
produced by Supplier for or sold to the Customer pursuant to the terms
of the Purchase Orders.
"Contract Rights" means all rights of Supplier (including to
payment) under each Contract (defined below).
"Contracts" means, collectively, any licensing agreements and
any and all other contracts, supply agreements, or other agreements
used in or related to the manufacture of Component Parts and in or
under which Supplier may now or hereafter have any right, title, or
interest and which pertain to the lease, sale, or other disposition by
Supplier of Equipment, Inventory, fixtures, 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) Supplier acknowledges in writing that it is unable to
timely satisfy the respective delivery requirements
of Component Parts of the Customer and will not be
able to cure such defaults within a reasonable period
of time; provided, however, that delivery
requirements are consistent with (and no more onerous
than) releases customarily issued by the Customer
pursuant to the parties' previous course of dealing;
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(b) A voluntary or involuntary petition under Chapter 7
of the Bankruptcy Code is filed against Supplier and
the petition is not (i) dismissed within 30 days or
(ii) converted to a proceeding under Chapter 11 of
the Bankruptcy Code within 30 days;
(c) Supplier makes an assignment for the benefit of
creditors or a similar transfer of or action
involving a material portion of the Operating Assets
or real property, or a trustee, custodian or receiver
is appointed over all or substantially all of
Supplier's property;
(d) Supplier ceases to satisfy the Customer's
requirements pursuant to releases issued by the
Customer to Supplier so as to result in the imminent
interruption of Customer's assembly operations;
provided, however, that delivery requirements are
consistent with (and no more onerous than) releases
customarily issued by the Customer pursuant to the
parties' previous course of dealing;
(e) Supplier fails or refuses for any reason (other than
a breach by Customer) to ship or produce Component
Parts, the consequence of which is a substantial
likelihood that production at Customer's assembly
plant is interrupted;
(f) Any secured or lien creditor commences a foreclosure
action of its liens, security interests and/or
mortgages in or against a material portion of the
Operating Assets; provided, however, if such action
does not interfere with Supplier's use of the
Operating Assets, the commencement of such action
will not constitute an Event of Default, if such
action is dismissed within 30 days following its
commencement; or
(g) An Event of Default occurs under the Accommodation
Agreement.
Notwithstanding the foregoing: (i) a Default under this Agreement cannot be
created or caused by the Customer's resourcing of any Component Part in
violation of the terms of this Agreement, and (ii) any breach, failure to
perform or delay in the manufacture, production, assembly or delivery of
Component Parts beyond Supplier's reasonable control in the conduct of its
business, including acts of God, fires, floods or other natural disasters,
epidemics, quarantine restrictions, freight embargoes, unusually severe weather,
wars, acts of terrorism and riots, shall not constitute a Default under the
terms of this Agreement.
"Documents" means all "documents" as defined in Section
9-102(a)(30) of the Code.
"Equipment" means any "equipment," as that term is defined in
Section 9-102(a)(33) of the Code, now or hereafter owned by Supplier,
which is
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used or related to the manufacture of Component Parts, and
shall also mean and include all machinery, equipment, vehicles,
furnishings, and fixtures (as such terms are defined in Section
9-102(a)(41) of the Code) now owned or hereafter acquired by Supplier,
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 to any of the foregoing items and all attachments,
components, parts (including spare parts), and accessories whether
installed thereon or affixed thereto in each case to the extent used in
or related to the manufacture of Component Parts.
"General Intangibles" means all "general intangibles," as such
term is defined in Section 9-102(a)(42) of the Code, now or hereafter
owned by Supplier, which are used in or related to the manufacture of
Component Parts, including, without limitation, customer lists, rights
in intellectual property, goodwill, trade names, service marks, trade
secrets, patents, trademarks, copyrights, applications therefor,
permits, licenses, now owned or hereafter acquired by Supplier, but
excluding items described in the definition of Accounts.
"Instruments" means all "instruments," as defined in Section
9-102(a)(47) 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, in each case to the extent used in or
related to the manufacture of Component Parts, 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 that term is defined in
Section 9-102(a)(48) of the Code, wherever located, now owned or
hereafter acquired by Supplier or in which Supplier now has or
hereafter may acquire any right, title or interest including, without
limitation, all goods and other personal property now or hereafter
owned by Supplier which are leased or 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 Supplier's business, or in the processing,
packaging or shipping of the same, and all finished goods.
"Obligations" means solely the obligation to provide the
Customer or its designee(s) the "Right of Access" as defined below.
"Operating Assets" means all assets necessary or helpful for
production of Component Parts, wherever located, including Equipment,
Real Estate, Contract Rights (other than Contract Rights in respect of
Inventory) and General
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Intangibles, but specifically excluding any
Accounts, Inventory, Documents, Instruments, chattel paper and Proceeds
of such excluded items and proceeds of General Intangibles as defined
below.
"Proceeds" shall have the meaning provided it under the
Section 9-102(a)(64) of the Code and, in any event, shall include, but
not be limited to: (i) any and all proceeds of any insurance,
indemnity, warranty, or guaranty payable to Supplier from time to time
with respect to any of the Collateral; (ii) any and all payments (in
any form whatsoever) made or due and payable to Supplier from time to
time in connection with any requisition, confiscation, condemnation,
seizure, or forfeiture of all or any part of the Collateral by any
governmental body, authority, bureau, or agency (or any Person acting
under color of governmental authority): and (iii) any and all other
amounts from time to time paid or payable under or in connection with
any of the Collateral.
"Real Estate" means the real property set forth on the
attached Exhibit 1.
2. Grant of Liens and Security Interests. As collateral security for
the Obligations, Supplier hereby grants to the Customer a continuing security
interest in the Operating Assets and Real Estate, as all are defined herein,
whether now owned or hereafter acquired by Supplier, or in which Supplier now
has or at any time in the future may acquire any right, title or interest
("Collateral"). Further, Supplier hereby grants the Customer permission to file
on its behalf any financing statements deemed necessary by the Customer to
perfect its security interest granted hereby. The security interests granted to
the Customer pursuant to this Agreement to secure the Obligations shall be
junior to the liens and security interests granted to Bank (and any security
interests perfected before the date of this Agreement) in all respects.
3. Right of Access
(a) General. Upon a Default, the Customer or its agreed-upon
designee(s) shall have a right, but not the obligation, to use and occupy the
Operating Assets and Real Estate to manufacture Component Parts (the "Right of
Access") for a period of up to 360 days ("Access Period") commencing upon the
occurrence of a Default and Customer invoking its Right of Access as set forth
below. Customer may invoke the Right of Access by delivering written notice to
Supplier and to Lender indicating its intention to invoke the Right of Access.
The Customer shall have no right to sell, transfer, or dispose of the Operating
Assets or the Real Estate as part of the Right of Access or as the holder of a
security interest in the Operating Assets.
(b) The Customer's Obligations. If the Customer invokes the Right of
Access for itself or its designee(s), the Customer and its designee shall:
(i) use such reasonable care in the custody and
preservation of the Operating Assets and Real Estate as a
prudent owner would use in connection with the custody and
preservation of its own assets, and indemnify and hold
harmless Supplier, its officers and directors,
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and the Bank
and the owners of the Real Estate from any physical damage
to property, including the Operating Assets and Real Estate,
or physical injury suffered by third parties caused directly
or indirectly by the Customer or its designee's use of the
Operating Assets and Real Estate during the Access Period,
which obligation to indemnify shall not be subject to any
right of setoff or recoupment that Customer may have against
Supplier;
(ii) indemnify, defend and hold Bank and Supplier and
their respective officers, directors, 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 after the date of
Customer's exercise of the Right of Access,
regardless of when such claims are asserted, which
obligation to indemnify shall not be subject to any
right of setoff or recoupment that Customer may have
against Supplier;
(iii) insure with comparable coverage, loss payees and
additional insureds and maintain the Operating Assets
and the Real Estate in the same condition as existed
on the date the Customer exercised the Right of
Access, ordinary wear and tear excepted;
(iv) pay the actual costs and expenses incurred in
connection with the manufacturing of Component Parts
during the Access Period, including, without
limitation, utilities and other overhead expenses,
prorated property taxes and assessments attributable
to the Operating Assets and Real Estate, royalty
payments under licenses with third parties, and any
payments due on account of any of the Operating
Assets which are leased from third parties and leased
Real Estate;
(v) subject to the Customer's or its designee's right to
use and occupy the Operating Assets and Real Estate
during the Access Period, afford Supplier's
representatives (and representatives of the Bank,
secured creditors or mortgagees of the Operating
Assets and/or Real Estate) reasonable access to
inspect the Operating Assets and the Real Estate, to
prepare for a liquidation of the Operating Assets and
Real Estate at the end of the Access Period, and to
sell any asset other than the Operating Assets and
Real Estate prior to expiration of the Access Period;
(vi) subject to Supplier's other customers agreeing to:
(a) make payment to the Customer or its designee(s)
on account of its allocable share of overhead and
related expenses and all direct expenses related to
such other customer's production; and (b) Supplier
making the necessary tangible personal property
available for use during the Access Period, the
Customer agrees,
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for itself and its designee(s), to
produce parts for such other customers during the
Access Period or to provide the other customers
access provided such customers do not interfere with
the production of Component Parts;
(vii) pay to the Lender monthly in advance, on account of
Supplier, a use and occupancy charge for each of
Supplier's facilities at which Customer exercises the
Right of Access as set forth on Exhibit 3(b)(vii);
(viii) Within forty-five (45) days after Customer exercises
the Right of Access, Customer shall cause all
accounts payable existing in Customer's account
payable system on the date on which the Customer
exercises the Right of Access to be paid directly to
Lender net of "Allowed Setoffs" (as defined in the
Accommodation Agreement). Customer will exercise its
commercial best efforts to reconcile any remaining
accounts payable to Supplier.
(c) If Customer invokes its Right of Access, Supplier
shall comply with the following:
(i) If Customer exercises the Right of Access (at the
Customer's election in its sole discretion), Supplier shall
use commercially reasonable efforts to continue to employ
those of its employees which the Customer determines are
necessary to maintain production of Component Parts (the
"Employees") and in turn lease the Employees to the Customer
or the Customer's designee(s), and the Customer or its
designee(s) shall reimburse Supplier for all costs and
expenses relating to Supplier's employment of the Employees
incurred during the Access Period. Without limiting the
generality of the foregoing, the Customer or its designee(s)
shall reimburse Supplier all amounts incurred by Supplier to
meet its regular payroll obligations, including salaries,
wages, payroll taxes, workers' compensation, unemployment
insurance, disability insurance, welfare, pension and other
payments and contributions required to be made by Supplier
with respect to the Employees, which are incurred during the
Access Period, but in no event will the Customer be liable
for any costs for unfunded pension liability or other
obligations relating to service prior to the time the
Customer exercises the Right of Access. Notwithstanding the
foregoing, under no circumstances will the Customer be
responsible for reimbursing Supplier for costs and expenses
relating to Supplier's employment of the Employees to the
extent the Employees are performing services unrelated to
the production of the Component Parts;
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(ii) During the Access Period, Supplier shall not increase
compensation or benefits of the Employees without the
consent of the Customer, except as may be required by
applicable law;
(iii) Supplier shall indemnify, defend and hold the
Customer, its designee(s) and its 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 date of
the Customer's exercise of the Right of Access, so
long as such claims are asserted within the
applicable statute of limitations; and
(iv) During the Access Period, Supplier agrees that the
Customer and its designee(s) and agents and
representatives shall have reasonable access to
Supplier's books and records for the purposes of
confirming and calculating the amounts due, if any,
from the Customer under this Agreement.
(d) Right to Terminate. The Customer shall have the absolute right to
terminate the Right of Access upon twenty (20) days' written notice to Supplier
and to the Lender. Upon expiration of the notice period, the Access Period will
terminate (and thereafter shall not be recommenced or invoked by the Customer)
and, except for the Customer's obligations under subparagraph b(i) and (ii),
payment of any amounts payable under subparagraphs b(i) through (viii) above not
paid as of the termination of the Access Period, and Customer ensuring that the
Operating Assets and the Real Estate are left in a safe and secure state, the
Customer shall have no further obligations or liabilities to Supplier on account
of the Right of Access.
(e) Specific Performance. IN CONNECTION WITH ANY ACTION OR PROCEEDING
TO ENFORCE THE RIGHT OF ACCESS, SUPPLIER ACKNOWLEDGES THAT THE CUSTOMER WILL NOT
HAVE AN ADEQUATE REMEDY AT LAW, THAT THE OPERATING ASSETS AND REAL ESTATE ARE
UNIQUE AND THAT THE CUSTOMER SHALL BE ENTITLED TO SPECIFIC PERFORMANCE OF
SUPPLIER'S OBLIGATIONS TO AFFORD THE CUSTOMER ITS RIGHT OF ACCESS UNDER THIS
AGREEMENT.
(f) Appointment of Receiver. In addition to any rights and remedies the
Customer may have as a secured creditor or under the terms of this or any other
agreement between the Customer and Supplier, the Customer shall have the right
to the appointment of a receiver to effectuate the Right of Access. In
connection with any hearing on the appointment of a receiver, Supplier agrees
that at least twenty-four (24) hours' actual notice of any request for a hearing
on such appointment shall be adequate notice and that the only issue to be
litigated at the hearing will be whether or not a Default has occurred.
(g) Irreparable Harm; Limitation of Notice. SUPPLIER ACKNOWLEDGES THAT
THE CUSTOMER MAY SUFFER IRREPARABLE HARM IF THE CUSTOMER
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INVOKES THE RIGHT OF
ACCESS AND SUPPLIER FAILS TO COOPERATE WITH THE CUSTOMER IN ALLOWING THE
CUSTOMER TO EXERCISE THE RIGHT OF ACCESS UNDER THIS AGREEMENT. ACCORDINGLY,
PROVIDED THAT SUPPLIER RECEIVES AT LEAST TWENTY-FOUR (24) HOURS' ACTUAL NOTICE
OF ANY REQUEST FOR HEARINGS IN CONNECTION WITH PROCEEDINGS INSTITUTED BY THE
CUSTOMER, SUPPLIER WAIVES, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW,
THE RIGHT TO NOTICE IN EXCESS OF 24 HOURS IN CONNECTION WITH ANY JUDICIAL
PROCEEDINGS INSTITUTED BY THE CUSTOMER TO ENFORCE THE RIGHT OF ACCESS.
4. Obligation to Purchase Inventory. If the Customer elects to exercise
the Right of Access, the Customer shall purchase all raw materials, work in
process and finished goods inventory related to goods produced by Supplier for
Customer which are usable by the Customer and in a merchantable condition at
such time (collectively, the "Subject Inventory"). For purposes of this
Agreement, the term "usable" means usable in the production of Component Parts
in the quantities called for by the Customer's fabrication authorization and the
releases issued against current Purchase Orders in effect as of the date the
Customer exercises the Right of Access. The term "merchantable" as used in this
Agreement means merchantable as defined in UCC ss. 2-314. The Customer may not
use any Inventory of Supplier which is not purchased pursuant to this paragraph.
The Customer will purchase the Subject Inventory (free and clear of all liens
and security interests granted in favor of Bank) for the following amounts:
(a) for raw materials, 100 percent (100%) of Supplier's actual cost;
(b) for work in process, 85 percent (85%) of the pro-rated Purchase
Order price if the same were completed (with such pro-ration made on a
percentage completion basis); and
(c) for finished goods, 100 percent (100%) of the price called for by
the underlying purchase order or supply contract, as amended from time to time
to reflect any price increase agreed to by Supplier and the Customer.
Customer will purchase the Subject Inventory on an as needed basis. Lender and
Supplier are obligated to deliver the Subject Inventory purchased by Customer to
Customer free and clear of any and all liens, claims and security interests.
Customer will only be obligated to purchase the Subject Inventory under this
Agreement if Lender can satisfy all of the requirements of this Agreement and
Customer is allowed to take possession of the Subject Inventory no later than
fifteen (15) days after Customer exercises the Right of Access. For
clarification, Customer agrees to pay for any freight costs associated with
Customer's removal of the Subject Inventory from Supplier's premises. Supplier
acknowledges that the foregoing prices to be paid for the Subject Inventory by
Customer constitute commercially reasonable prices, and that any sale pursuant
to the foregoing shall be deemed to be commercially reasonable in all respects,
including method, time, place and terms. The parties agree that they
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will
undertake a physical inventory as soon as reasonably practical after invocation
of the Right of Access.
5. License. Subject to subsection (a) below, Supplier hereby grants the
Customer a non-exclusive worldwide, irrevocable, fully paid right and license to
use any Intellectual Property necessary or helpful for the manufacture of the
Component Parts for the Customer's use and/or use by third parties (the
"License"). The Customer's right to use the License shall include the right to
grant one or more third parties sublicenses for the manufacture of Component
Parts, provided, however, that any sublicensee must satisfy the terms of this
Agreement and sublicensing will have no effect on the Customer's obligations
under this Agreement.
(a) Right to Use License. Although the License is being granted to the
Customer as of the date set forth above, the Customer agrees that neither it nor
its sublicensees will utilize the License unless:
Customer invokes the Right to Access (and then it will only use the
License during the Access Period after which the rights granted in this
paragraph 5 shall automatically expire and be of no further force and
effect).
(b) No Royalty. For all purposes, Supplier has been fully paid for the
License and other rights granted to the Customer under this Agreement (except as
otherwise provided in this Agreement) and (except as otherwise provided in this
Agreement) no royalties, fees, payments, charges or other consideration shall be
due from the Customer on account of the License or this Agreement or the
Customer's (or sublicensee's) use of the License or other rights granted
pursuant to this Agreement. The above is not intended to relieve the Customer in
any way of payment obligations under this Agreement, or of any other payment
obligations contained herein, in the Accommodation Agreement or which may
otherwise exist.
(c) Protection of Ownership. The Customer shall treat and preserve the
Intellectual Property in accordance with the same practices employed by the
Customer to safeguard its own intellectual property against unauthorized use and
disclosure and will only use such information, data and trade secrets during the
Access Period in connection with producing Component Parts. The foregoing
obligations of the Customer shall not be applicable to information which is now
or becomes hereafter available to the public through no action, conduct,
admission or fault of the Customer. Without waiving any rights under the
Purchase Orders, which rights, if any, are expressly reserved, no such
sub-licensee shall have any rights respecting the continued use of intellectual
property upon terminating the Access Period. The provisions of this paragraph
shall survive termination of this Agreement.
(d) Sale of Intellectual Property. Nothing contained herein shall
prevent Supplier from marketing and selling the Intellectual Property subject to
the rights of Customer granted under this section 5 of the Agreement.
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6. Protection of Production. Subject to its obligations under the
Customer's Accommodation Agreement, the Customer shall have the unlimited right
to, among other things, enter into discussions, negotiations, and agreements
regarding the production of the Component Parts by any potential alternative
supplier(s), including without limitation, any current or former agents,
consultants, directors, employees, or officers of Supplier so long as such
parties are not subject to restrictions under a noncompetition agreement.
7. Customer's Tooling. All parties agree to be bound by the terms of
Section 13 of the Accommodation Agreement.
8. Bankruptcy Court Approvals. In the event that bankruptcy is filed,
Supplier hereby agrees that it will exercise its best efforts in good faith to
obtain the Bankruptcy Court's entry of a final order under 11 U.S.C. ss. 364 or
ss. 363 and ss. 105, binding on any subsequently appointed chapter 11 or chapter
7 trustee, confirming the Customer's rights under this Agreement and authorizing
Supplier to enter into same.
9. Rights of the Customer; Limitations on the Customer's Obligations.
Unless the Customer exercises the Right of Access, in which case the Customer
shall have the obligations as are expressly provided in this Agreement, except
as provided by applicable law, the Customer shall not have any obligation or
liability by reason of or arising out of this Agreement nor shall the Customer
be required or obligated in any manner to perform or fulfill any of the
obligations of Supplier under this Agreement.
10. Remedies. Subject to the terms of any agreement between the
Customer and the Bank, upon a Default and the expiration of any applicable cure
periods, the Customer shall have all rights and remedies provided in this
Agreement, in any other agreements with Supplier, and all rights and remedies
available to a secured creditor under applicable law provided that the
Customer's rights as a secured creditor shall be strictly limited to enforcing
its Right of Access under this Agreement. The Customer shall have no right to
attach, foreclose, sell or otherwise dispose of all or any portion of the
Collateral and shall not have the right to recover any proceeds from the sale or
other disposition of all or any portion of the Collateral. Further, in
connection with the Customer's rights and remedies under this Agreement:
(a) Supplier waives any right it may have to require the Customer to
foreclose its security interests and liens and/or reduce the Obligations to a
monetary sum;
(b) If the Customer exercises the Right of Access, the Customer shall
be treated as a secured party in possession and the Customer's use and occupancy
of the Operating Assets will not be deemed to be acceptance of such assets in
satisfaction of the Obligations; and
(c) All of the Customer'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.
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11. Injunctive Relief. Given that the Customer may incur significant
damages if Supplier fails to timely satisfy its obligations to the Customer and
the Customer's assembly plant operations may be negatively impacted, and because
the Customer does not have adequate remedy at law and would be irreparably
harmed by such events, Supplier agrees that the Customer shall be entitled to
injunctive relief (both prohibitive and mandatory) in connection with any
Default by Supplier under this Agreement. The Customer agrees to provide the
Bank notice of any proceeding seeking injunctive relief simultaneous with
providing such notice to Supplier.
12. Representations and Warranties. Supplier represents and warrants to
the Customer that:
(a) Title; No Other Security Interests. Except for the security
interest granted under this Agreement to the Customer, and the liens and
security interests granted to the Bank and Bank One, NA, Supplier owns the
Collateral free and clear of any and all security interests or claims of others.
(b) Addresses. Supplier's chief executive office and the location of
the Collateral are set forth in paragraph 23 and shall not be changed without
prior written notice to the Customer, but the Operating Assets, wherever
located, are covered by this Agreement. Supplier must immediately advise the
Customer in writing of any change in its name, trade name, address, or form of
organization.
(c) Trade Names. Any and all trade names under which Supplier transacts
any part of its business, and all former names of Supplier, are those which have
been previously disclosed to the Customer in writing.
(d) Accuracy of Information. All information, certificates, or
statements given to the Customer under this Agreement must be true and complete
in all material respects, when given.
13. Covenants. Supplier covenants and agrees with the Customer that
from and after the date of this Agreement until the Obligations are paid in
full:
(a) Further Documentation. At any time and from time to time, upon the
written request of the Customer, and at Supplier's sole expense, Supplier will
promptly and duly execute and deliver any and all such further instruments and
documents and take such further action as the Customer may reasonably request
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 the provisions of section
3(b)(iv) of this Agreement, Supplier will pay promptly when due, all taxes,
assessments and governmental charges or levies imposed upon the Collateral and
the Real Estate or in respect of Supplier's income or profits, as well as all
claims of any kind (including, without limitation, claims for labor, materials
or supplies) against or with respect to the Collateral and Real Estate.
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(c) Sales or Dispositions of Assets; Certain Uses Prohibited. Supplier
will not sell or otherwise dispose of or encumber the Operating Assets or the
Real Estate, except in the ordinary course of business, without the written
consent of the Customer, which consent will not be unreasonably withheld, and
the Bank. Further, Supplier will not use any of the Operating Assets or the Real
Estate in any way which would materially adversely affect the Customer's Right
of Access or the Customer's other rights and remedies under this Agreement.
Supplier acknowledges and agrees that it will be reasonable for the Customer to
withhold consent if the proposed sale or encumbrance impairs, or may impair, the
Customer's rights under this or any other Agreement between the Customer and
Supplier.
(d) Limitations on Modifications of Agreements, etc. Supplier 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 the
Customer's Right of Access; or (ii) fail to exercise promptly and diligently
each and every right which it may have under each Contract in any manner which
could materially adversely affect the Customer's Right of Access or the
Customer's other rights or remedies under this Agreement.
(e) Maintenance of Insurance. Subject to the provisions of section
3(b)(iii) of this Agreement, Supplier must, at its expense, keep and maintain
the Collateral and the Real Estate insured against all risk of loss or damage
from fire, theft, malicious mischief, explosion, sprinklers, and all other
hazards or risks of physical damage included within the meaning of the term
"extended coverage" in amounts as are ordinarily insured against by other
similar businesses and shall name, in addition to Bank, the Customer as loss
payee and additional insured thereon. The Customer agrees that any and all
proceeds of insurance, including any Proceeds, shall be paid to Bank until such
time as all of Supplier's indebtedness and other obligations to Bank have been
irrevocably paid, satisfied and discharged in full.
(f) Right of Inspection; Cooperation. In addition to any rights the
Customer may have under the Purchase Orders, the Customer and its
representatives shall, at Customer's expense, upon reasonable request and at
reasonable times, have the right to enter into and upon any premises where any
of the Collateral and the Real Estate are located for the purpose of inspecting
the same, observing their use or otherwise protecting the Customer's interests
therein. The Customer will take reasonable steps to maintain the confidentiality
of information obtained by the Customer, except as required by law.
(g) Notice of Default. Supplier will provide immediate notice to the
Customer, by way of facsimile transmission and overnight express mail service,
of its or its attorneys' or agents' receipt of any notice of default under
Supplier's agreements with the Bank, or any other secured creditors including
but not limited to taxing authorities. Supplier hereby grants to the Customer
the option, but not the obligation, to exercise whatever rights to cure defaults
that Supplier has under such agreements or by law.
13
14. Secured Party and Lessor Acknowledgments.
(a) Supplier will obtain the Bank's acknowledgment to the
rights and interests granted to the Customer under this
Agreement by providing a copy of a form substantially similar
to Schedule 14(a) executed by a duly authorized representative
of the Bank.
(b) If subsequent to the execution of this Agreement, Supplier
intends to grant additional or further security interests,
liens or mortgages in the Collateral or the Real Estate to any
party other than the Customer or the Bank, ten (10) business
days prior to granting such liens, security interests,
mortgages, or leaseholds, Supplier must deliver to the
Customer an acknowledgment from such secured creditors,
mortgagees, and/or lessees in a form substantially similar to
Schedule 14(a).
(c) Upon the request of the Customer, Supplier will deliver to
the Customer acknowledgements of the lessors of leased Real
Property to the Customer's rights hereunder, in a form
substantially similar to Schedule 14(b) (attached).
15. Term. The rights granted to the Customer under this Agreement shall
continue as long as any Purchase Orders are in effect (exclusive of any
termination of such Purchase Orders by Supplier) unless (a) the Customer has
invoked the Right of Access prior to the expiration of the Purchase Orders, in
which case this Agreement shall expire and the Customer shall promptly release
the lien and security interest granted in paragraph 2 above, upon the earlier of
(i) the expiration of the Access Period, or (ii) when Customer's requirements
under the Purchase Orders are satisfied or all of the Component Parts are
resourced, or (b) upon the sale of the Operating Assets to a "Qualified Buyer"
(as defined in the Accommodation Agreement) who agrees to perform the Purchase
Orders on the existing terms and who can reasonably demonstrate the ability to
perform such Purchase Orders.
16. Confidential Information and Data. Without limiting the Customer's
rights under this Agreement, to the extent the Operating Assets include or the
Customer or its designee(s) otherwise comes into possession of or becomes aware
of, Supplier's trade secrets or proprietary information during the Customer's
exercise of the Right of Access, the Customer and its designee(s) must (a) keep
the information, data, and trade secrets confidential; and (b) only use the
information, data, and trade secrets during the Access Period in connection with
producing Component Parts. The provisions of this paragraph shall survive
termination of this Agreement. The Customer acknowledges and agrees that
Supplier will suffer irreparable harm if the Customer or its designee(s) violate
or breach their obligations under this paragraph 16. The Customer agrees that
Supplier shall be entitled to injunctive relief (both prohibitive and mandatory)
in connection with any violations by the Customer or its designee(s) of their
obligations under this paragraph 16.
14
17. Severability. Should any provision of this Agreement be held
invalid, prohibited or unenforceable in any one jurisdiction it shall, as to
that jurisdiction only, be ineffective to the extent of such holding without
invalidating the remaining provisions of this Agreement, and any such holding
does not invalidate or render unenforceable that provision in any other
jurisdiction wherein it would be valid and enforceable.
18. Authorization. The parties executing this Agreement as
representatives warrant that they have the power and authority to execute this
Agreement on behalf of the corporation that they represent and that their
signatures bind said corporations to the terms of this Agreement.
19. Section Headings. 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 consideration in the interpretation of this Agreement. All
references to Sections, Schedules, and Exhibits are to Sections, Schedules, and
Exhibits in or to this Agreement unless otherwise specified.
20. No Waiver; Cumulative Remedies. The Customer shall not by any act,
delay, indulgence, omission, or otherwise be deemed to have waived any right or
remedy under this Agreement or of any breach of the terms and conditions of this
Agreement. A waiver by the Customer 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
the Customer would otherwise have had on a subsequent occasion. No failure to
exercise nor any delay in exercising on the part of the Customer any right,
power, or privilege under this Agreement, shall operate as a waiver, 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, may be exercised singly or concurrently, and are not exclusive
of any rights and remedies provided by any other agreements or applicable law.
21. Waivers and Amendments; Successors and Assigns. No term or
provision of this Agreement may be waived, altered, modified, or amended except
by a written instrument, duly executed by Supplier, the Customer and Bank. This
Agreement and all of Supplier's obligations are binding upon the successors and
assigns of Supplier, and together with the rights and remedies of the Customer
under this Agreement, inure to the benefit of the Customer and Bank, and their
respective successors and assigns. Supplier may not assign or transfer any right
or obligation under this Agreement without the prior written consent of the
Customer and Bank; it being understood that the Bank has a security interest in
the right, title and interest of Supplier under this Agreement
22. Governing Law and Forum. This Agreement is made in the State of
Michigan and shall be governed by, and construed and enforced in accordance
with, the laws of the State of Michigan. The parties agree that the federal and
state courts sitting in Xxxxx County, Michigan, have personal jurisdiction over
the parties and that proper
15
jurisdiction and venue for any dispute arising from
or under this Agreement shall be in the federal or state courts sitting in Xxxxx
County, Michigan.
23. Notices All notices, requests, and other communications that are
required or may be given under this Agreement must 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 given to Supplier, sent to: Amcast Industrial Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
with a copy to: Xxxxxxxx Xxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
If given to GM, sent to: General Motors Corporation
30009 Xxx Xxxx, M/C 000-000-000
Xxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If given to Bank: KeyBank National Association
Mail Code: OH-01-27-0504
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
With a copy to: Xxxxxx Xxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
16
24. No Intended Third Party Beneficiary. The parties hereto acknowledge
and agree that, other than Bank, the rights and interests of the parties under
this Agreement are intended to benefit solely the parties to this Agreement.
Bank is an intended beneficiary of this Agreement and may enforce the terms of
this Agreement against the parties hereto.
25. Counterparts. This Agreement may be executed in any number of
counterparts and by each party 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. For purposes of this Agreement, signatures obtained by facsimile
shall constitute original signatures.
26. 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 writing signed by the Customer, Supplier and Bank. The terms and
conditions of the Purchase Orders shall be unaffected by this Agreement except
to the extent that an inconsistency or conflict exists between the express terms
of the Purchase Orders and this Agreement in which event the terms of this
Agreement shall govern and control. To the extent any term or condition of this
Agreement is inconsistent or in conflict with the terms of any other agreements
between the parties, the terms of this Agreement shall govern and control.
27. 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.
28. 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.
17
WITNESSED
AMCAST INDUSTRIAL CORPORATION
___________________________ By:
-------------------------------------
Name
___________________________ Its:
----------------------------
Name
STATE OF OHIO )
) SS
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _____ day
of August 2003 by ________________,
the duly authorized _______________________ of Supplier on behalf of the
company.
Notary Public
County, My commission
expires:
18
WITNESSED GENERAL MOTORS CORPORATION
a Delaware corporation
__________________________ By:
---------------------------------------
Name
___________________________ Its:
-----------------------------
Name
STATE OF MICHIGAN )
) SS
COUNTY OF MACOMB )
The foregoing instrument was acknowledged before me this _____day of
August, 2003 by ___________________________, the _____________________ of
General Motors Corporation, a Delaware corporation, on behalf of the
corporation.
Notary Public
,County, Michigan
My commission expires:
19
SCHEDULE 14(a)
ACKNOWLEDGMENT AND CONSENT
While not a party to the Access and Security Agreement ("Access
Agreement") between General Motors Corporation (the "Customer") and Amcast
Industrial Corporation ("Supplier") dated August ___, 2003, KeyBank National
Association, as agent for Supplier's lending syndicate ("Bank") is a third
beneficiary thereof and is party to various loan and/or security agreements with
Supplier and has secured Supplier's obligations to it with all of Supplier's
assets, including first liens on the Operating Assets and Real Estate. In such
capacity, the Bank acknowledges, consents to, and agrees that its liens and
security interests in the Operating Assets and Real Estate shall be subject to
the terms and conditions of the Access Agreement; but Bank's liens shall not be
subordinate to any liens or security interests granted to Customer under the
Access Agreement. The fact that the Bank is executing this Acknowledgment and
Consent shall not in any way make it a guarantor or surety for Supplier's
performance under the Access Agreement. Further, subject to the Access
Agreement, the Bank reserves its rights under its agreements with Supplier and
applicable law.
WITNESSED:
___________________________ By:
-------------------------------------
Name
___________________________ Name:
------------------------------------
Name
Title:
-----------------------------------
Date: August ___, 2003
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SCHEDULE 14(b)
LESSOR'S
ACKNOWLEDGMENT AND CONSENT
While not a party to the Access and Security Agreement ("Access
Agreement") between General Motors Corporation (the "Customer") and Amcast
Industrial Corporation ("Supplier") dated August __, 2003 the undersigned leases
certain real estate and/or equipment to Supplier and, in such capacity, the
undersigned acknowledges, consents to, and agrees with, and agrees to be bound
by, the terms and conditions of the foregoing Agreement, including the
Customer's right to use the Operating Assets and the Real Estate during Access
Period.
-----------------------------------
Name of Lessor
Dated: August __, 2003
21
EXHIBIT 1 - REAL PROPERTY
22
EXHIBIT 3(b)(vii)
Facility Monthly Fee
--------- -------------
Gas City $193,000
Fremont $100,000
Wapakoneta $171,000
Richmond $140,000
CTC (Franklin) $107,000
23
DET_C\548749.6
