MASTER AGREEMENT
----------------
The purpose of this agreement ("Master Agreement") is to summarize the mutual
intent and expectations of General Motors Corporation ("GM") and AM General
Corporation ("AMG") with regard to a series of contractual agreements, as listed
in Section 1 below, to be executed by the parties on or about December 21, 1999
(collectively the "Contracts") and to formalize the parties agreement that the
Contracts constitute a single contractual commitment (this Master Agreement and
all of the Contracts shall be collectively referred to as the "Agreement").
Recitals:
---------
1. GM is engaged in, among other things, the design, manufacture, marketing,
sale, and distribution of motor vehicles and motor vehicle related products.
2. AMG is in the business of designing, manufacturing, marketing and
distributing motor vehicles for both commercial and military application,
including the "HUMMER" brand vehicles currently being manufactured by AMG for
non-military application (the "Current Vehicle").
3. GM and AMG, concurrent with this agreement, wish to enter into a series of
contractual agreements through which the parties shall, among other things;
design, assemble, market and distribute a new vehicle based on a platform, and
each Contract is a condition of each of the other Contracts.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained
herein, the execution and delivery by GM and AMG of each of the Contracts, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
Section 1 - Documents
On or before the Closing Date, GM and AMG shall execute and deliver to the other
the following agreements:
1.1 Assignment Agreement. An assignment agreement through which AMG will
---------------------
assign to GM all rights, title and interest to the HUMMER trademark (as further
defined therein), pursuant to the terms and conditions of that agreement
substantially in the Form attached as Exhibit A.
1.2 New Vehicle Assembly Agreement. An assembly agreement through which GM will
-------------------------------
provide AMG with a 7.5 to 8 year contract for the assembly of a new vehicle to
be based on a platform (the "New Vehicle"), pursuant to the terms and conditions
of that agreement substantially in the Form attached as Exhibit B.
1.3 Management Services Agreement. A services agreement through which GM will
------------------------------
provide AMG with certain management services with respect to the global
marketing and distribution of the Current Vehicle, pursuant to the terms of that
agreement substantially in the Form attached as Exhibit C.
-1-
1.4 License Agreement. A license agreement through which GM will grant AMG a
------------------
limited license to utilize the HUMMER trademark for the duration of the New
Vehicle Assembly Agreement for the purpose of branding the Current Vehicle which
AMG will continue to produce substantially in the Form attached as Exhibit D.
1.5 Promissory Note. An interest free Promissory Note (or series of Promissory
----------------
Notes) through which GM promises to provide AMG the funding required for jointly
agreed upon facility improvements and other capital investment necessary for AMG
to fulfill its assembly obligations under the New Vehicle Assembly Agreement
referenced above, pursuant to the terms and conditions set forth in the
Promissory Note substantially in the Form attached as Exhibit E.
1.6 Security Agreement. A security agreement through which AMG shall grant to
-------------------
GM a purchase money security interest in the real and personal property acquired
or otherwise produced with the proceeds of the Promissory Note referenced above,
pursuant to the terms and conditions of the Security Agreement substantially in
the Form attached as Exhibit F.
1.7 Right of Access Agreement. A right of access agreement through which AMG
--------------------------
will xxxxx XX, in the event of certain specified events the right to enter,
occupy and utilize certain real and personal property for the production of the
New Vehicle, pursuant to the terms of that agreement substantially in the Form
attached as Exhibit G.
1.8 HUMVEE Trademark Agreement. A letter agreement through which AMG commits
---------------------------
to limit the use of the HUMVEE trademark to military related vehicles, goods,
and services for the duration of the New Vehicle Assembly Agreement referenced
above, pursuant to the terms of that letter agreement substantially in the Form
attached as Exhibit H.
1.9 Royalty Sharing Agreement. A letter agreement through which GM and AMG
--------------------------
agree to share the royalties and licensing fees resulting from the licensing of
the HUMMER and HUMVEE trademarks, pursuant to the terms and conditions of that
letter agreement substantially in the Form attached as Exhibit I.
1.10 Joint Review Board Agreement. A letter agreement through which GM and
-----------------------------
AMG establish one or more joint review boards which the parties intend to
utilize to manage the business relationship between GM and AMG relating to this
transaction and other possible collaborations between the parties substantially
in the Form attached as Exhibit J.
1.11 Equity Conversion Agreement. A letter agreement through which GM and AMG
----------------------------
agree on the terms and conditions under which GM shall be able to convert the
unamortized balance of the Promissory Note into an equity interest in AMG,
pursuant to the terms and conditions of that letter agreement substantially in
the Form attached as Exhibit K.
-2-
Section 2 - The Closing
2.1 The Closing. The Closing will take place at the offices of the General
Motors Truck Group at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx, or at such
other place as GM and AMG mutually agree, at 10:00 A.M. local time, on the
Closing Date, which date shall be mutually agreed, not to occur later than
December 31, 1999.
2.2 Delivery of Documents. At the closing GM and AMG shall each execute and
deliver to the other, as applicable, the following documents:
(a) the Assignment Agreement;
(b) the New Vehicle Assembly Agreement;
(c) the Management Services Agreement;
(d) the License Agreement;
(e) the Promissory Note;
(f) the Security Agreement;
(g) the Right of Access Agreement;
(h) the HUMVEE Trademark Agreement;
(i) the Royalty Sharing Agreement;
(j) the Joint Review Board Agreement; and
(k) the Equity Conversion Agreement.
2.3 Conditions Precedent. The obligations of GM entering into each of the
---------------------
Contracts is conditioned upon the execution and delivery by AMG of all the
Contracts and the obligations of AMG entering into each of the Contracts is
conditioned upon the execution and delivery by GM of all the Contracts.
-3-
SECTION 3 - REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of AMG. AMG represents and warrants to GM
as follows:
(a) Organization, Power, Standing and Qualification. AMG is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. AMG has all requisite corporate power and authority to enter into
and perform this Master Agreement and the Contracts.
(b) Due Authorization. The execution and delivery by AMG of this Master
-----------------
Agreement and the Contracts, the performance by it of its obligations
thereunder, and the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of AMG. This Master
Agreement and the Contracts have been duly executed and delivered by AMG and are
valid and binding obligations of AMG enforceable in accordance with their
respective terms.
(c) No Conflict. Except as set forth on Schedule 3.1(c) hereof, the execution
-----------
and delivery of this Master Agreement and the Contracts does not, and the
consummation of the transactions contemplated hereby will not, (i) violate or
conflict with the provisions of the Articles of Incorporation and/or By-Laws of
AMG., (ii) result in the imposition of any lien under, cause the acceleration of
any obligation under, or violate or conflict with the terms, conditions or
provisions of, any note, indenture, mortgage, lease, guaranty or other agreement
or instrument to which AMG is a party or by which it is bound, or (iii) require
any consent or approval of, filing with or notice to any governmental authority,
except for filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the expiration of any applicable waiting period thereunder.
(d) Due Consideration. This Master Agreement and the Contracts were and
------------------
will be executed and delivered by AMG for reasonable and equivalent value and
fair consideration.
(e) Title to AMG Licenses. AMG owns the entire right, title and interest in
---------------------
and to the "HUMMER" trademark (as defined in the Assignment Agreement) and the
"HUMVEE" trademark (as defined in the HUMVEE Trademark Agreement), subject to
the licenses granted by AMG to third parties as set forth in Schedule 3.1(e),
and the licenses required to be owned by AMG under the Contracts, and each such
trademark and license is in full force and effect.
(f) Financial Stability. (i) As of the date of the Closing and immediately
--------------------
following the execution of this Master Agreement and the Contracts and
consummation of the transactions contemplated therein, AMG will be able to pay
its debts as they become due and AMG will not have unreasonably small capital in
order to carry on its business; (ii) AMG is not insolvent and will not be
rendered insolvent by the execution and delivery of this Master Agreement and
the Contracts or consummation of the transactions contemplated therein, and the
capital, monies and assets remaining in AMG thereafter are not now and will not
become so unreasonably small as to preclude AMG from carrying on its business;
and (iii) All material undisputed debts AMG owes to third parties are current
and not past due.
3.2 Representations and Warranties of GM. GM represents and warrants to AMG
as follows:
(a) Organization, Power, Standing and Qualification. GM is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. GM has all requisite corporate power and authority to enter into
and perform the Agreements.
(b) Due Authorization. The execution and delivery by GM of this Master
-----------------
Agreement and the Contracts, the performance by it of its obligations
thereunder, and the transactions contemplated hereby
-4-
have been duly and validly authorized by all necessary corporate action on the
part of GM. This Master Agreement and the Contracts have been duly executed and
delivered by GM and are valid and binding obligations of GM enforceable in
accordance with their respective terms.
(c) No Conflict. Except as set forth on Schedule 3.2(c) hereof, the execution
-----------
and delivery of this Master Agreement and the Contracts does not, and the
consummation of the transactions contemplated hereby will not, (i) violate or
conflict with the provisions of the Articles of Incorporation and/or By-Laws of
GM, (ii) result in the imposition of any lien under, cause the acceleration of
any obligation under, or violate or conflict with the terms, conditions or
provisions of, any note, indenture, mortgage, lease, guaranty or other agreement
or instrument to which GM is a party or by which it is bound, or (iii) require
any consent or approval of, filing with or notice to any governmental authority,
except for filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the expiration of any applicable waiting period thereunder.
(d) Due Consideration. This Master Agreement and the Contracts were and
------------------
will be executed and delivered by GM for reasonable and equivalent value and
fair consideration.
Section 4 - Events of Default and Remedies
4.1 Single Contractual Commitment. Although each of the Contracts is a
------------------------------
stand alone document, the parties acknowledge and agree that the parties
respective rights and obligations under each of the Contracts are inseparably
linked, are intended to constitute a single contractual commitment , and that
the parties would not have been induced to enter into any one of the Contracts
absent the existence of the other Contracts. Accordingly, in the event a party
materially breaches its obligations under one or more of the Contracts, the
other party shall be free to pursue appropriate remedies, legal or otherwise at
its sole discretion; provided, however, that (i) in no event shall either party
-----------------
be liable for indirect, consequential or special damages; and (ii) that prior to
the commencement of any legal action, the parties shall utilize their reasonable
best efforts to resolve the dispute in as promptly as reasonably possible under
the circumstances.
4.2 Trademark. Any other provision of this Master Agreement or the Contracts
----------
notwithstanding, under no circumstances shall AMG make any attempt, through
litigation, petition of any court, or otherwise, to set aside the assignment of
the HUMMER Trademark to GM pursuant to the Assignment Agreement or otherwise
have the HUMMER Trademark returned to AMG or in anyway relinquished by GM.
4.3 Direct Damages. The provisions of Section 4.1(i) above or any similar
---------------
provisions in any Contract notwithstanding, the parties acknowledge and agree
that AMG shall be entitled to recover the fair market value of the HUMMER
trademark assigned to GM pursuant to the Assignment Agreement (as of the time of
such assignment) as direct damages in the event that GM fails to perform its
obligations under the New Vehicle Assembly Agreement to provide funding for the
New Vehicle Facilities or to order New Vehicles from AMG.
4.4 Material Breach. The parties acknowledge and agree that breach of the
----------------
representations and warranties set forth in Sections 3.1 and 3.2 above, shall
not constitute a material breach as contemplated in Section 9.3(a) of the New
Vehicle Assembly Agreement.
Section 5 - Dispute Resolution and Confidentiality
5.1 Dispute Resolution. In the event of any dispute between the parties
-------------------
relating to this Master Agreement or the Contracts, the parties shall use their
reasonable best efforts to resolve such disputes at an
-5-
appropriate business level within their respective business organizations within
sixty (60) days. In the event such efforts fail, such dispute may be submitted
to a dispute resolution panel. On a case by case basis, the panel shall consist
of the chief financial officer of AMG and the GM Truck Group or their respective
designees, plus one person jointly selected by the parties. The panel may
establish procedures for submission of the dispute, including that reasonable
requests made by one party to the other for information shall be honored in
order that each of the parties may be fully advised of all relevant facts. A
majority decision of the panel shall control but shall not be binding on the
parties unless the parties agree otherwise in writing in advance of submission
of the dispute to the panel. Following issuance of the panel's decision in cases
of non-binding determinations, each party shall be free to pursue further
appropriate action that may be available to it, legal or otherwise, in its sole
discretion.
5.2 Confidential Information. During the course of the parties performance
-------------------------
of this Master Agreement, the Contracts and the transactions contemplated
thereunder, each party will have occasion to provide the other with information
that it deems to be proprietary in nature. In this regard, the parties mutually
agree to protect the confidentiality of any such information in the same manner
in which each party protects similar information of its own, including but not
limited to restricting the access to such information to a need to know basis,
as appropriate.
-6-
Section 6 - General Provisions
6.1 Assignment. This Agreement shall not be assigned by either party without
-----------
the prior written consent of the other party.
6.2 Governing Law. This Agreement shall be governed by the laws of the State of
--------------
Michigan, without regard to the principles of conflict of laws.
6.3 Waiver and Delay. No waiver by either party of any breach or series of
-----------------
breaches or defaults in performance by the other party, and no failure, refusal
or neglect of either party to exercise any right, power or option given to it
hereunder or to insist upon strict compliance with or performance of either
party's obligations under this Agreement, shall constitute a waiver of the
provisions of this Agreement with respect to any subsequent breach thereof or a
waiver by either party of its right at any time thereafter to require exact and
strict compliance with the provisions thereof.
6.4 Limited Liability Company. The parties acknowledge that AMG is currently
--------------------------
contemplating certain modifications to its existing corporate structure
including the possible contribution of all of its assets and liabilities to a
limited liability company. In this regard, AMG, and any successor entity agree
to indemnify and hold GM harmless from any and all material adverse financial
consequences resulting directly from any such modification in AMG's corporate
structure.
6.5 Successors and Assigns. This Agreement shall be binding upon and inure to
-----------------------
the benefit of the successors and assigns of the parties hereto, subject to the
restrictions on assignment contained herein.
6.6 Titles and Headings for Convenience. Titles and headings used in this
------------------------------------
Agreement are for convenience only and shall not be deemed to affect the meaning
or construction of any of the terms, provisions, covenants, or conditions of
this Agreement.
6.7 Severability. Nothing contained in this Agreement shall be construed as
-------------
requiring the commission of any act contrary to law. If any tribunal or court of
competent jurisdiction deems any provision hereof unenforceable, such provision
shall be modified only to the extent necessary to render it enforceable and the
remaining provisions shall remain in full force and effect.
6.8 Entire Agreement. This Agreement contains all of the terms and conditions
agreed upon by the parties hereto with reference to the subject matter hereof.
No other agreements, oral or otherwise, shall be deemed to exist or to bind
either of the parties hereto, and all prior agreements and understandings are
superseded hereby. This Agreement cannot be modified or changed except by
written instrument signed by both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused two (2) copies this Agreement
to be duly executed and delivered by their proper and duly authorized
representatives effective as of the date first written above.
-7-
GENERAL MOTORS CORPORATION AM GENERAL CORPORATION
By: _____________________________ By: ___________________________
Title: __________________________ Title: _________________________
-8-
