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ACCOMMODATION AGREEMENT
General Motors Corporation ("GM") and Harvard Industries, Inc.,
Xxxxxxx-Xxxxxx, Inc. and Xxxxxxx-Xxxxxx Greenville, Inc. (collectively, "The
Harvard Group") enter into this Accommodation Agreement (this "Agreement") this
____ day of March, 1997:
RECITALS
X. Xxxxxxx-Xxxxxx, Inc. ("Xxxxxxx-Xxxxxx") and Xxxxxxx-Xxxxxx
Greenville, Inc. ("Greenville") are, respectively, direct and indirect wholly
owned subsidiaries of Harvard Industries, Inc. ("Harvard").
B. The Harvard Group (including Xxxxxxx-Xxxxxx and Greenville) are
major suppliers of component parts (the "Component Parts") to GM pursuant to
various purchase order and/or supply contracts ussed by GM (collectively, the
"Purchase Orders").
X. Xxxxxxx-Xxxxxx entered into a supply arrangment 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").
D. Prior to the price increase referenced in paragraph 1 below, The
Harvard Group asserts that it was incurring significant operating losses in
connection with the production of V-8 Manifolds by Xxxxxxx-Xxxxxx and/or
Greenville, as applicable. The Harvard Group also advised GM that the
financial stability of the Harvard Group 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 accommodations to the Harvard Group as a condition
to continuing to deliver V-8 Manifolds to GM.
E. GM asserts that the Harvard Group's failure or refusal to satisfy
GM's requirements for the V-8 Manifold would irreparably injure GM.
F. On July 25, 1996, the parties executed a term sheet (the "Term
Sheet") outlining the terms of an agreement pursuant to which the Harvard Group
would be granted a price increase on the V-8 Manifold and GM would provide
certain additional financial accommodations in consideration for the agreements
and commitments of the Harvard Group set forth therein.
G. The parties are entering into this Agreement and the Schedules
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 hereby acknowledged, GM and the Harvard Group agree as
follows:
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TERMS AND CONDITIONS
1. V-8 Manifold Price Incease. GM has granted Xxxxxxx-Xxxxxx
and/or Greenville, as applicable, a price increase of $7.41 per V-8 Manifold
for an effective adjusted price of $45.83 per V-8 Manifold, plus any additional
adjustments pursuant to GM's aluminim metal market adjustment policy. The
above-referenced price increase was effective for all V-8 Manifolds shipped and
delivered on or after Xxxx 1, 1996.
2. Continued Delivery. As consideration for GM agreeing to the
price increase referred to above,
(a) Xxxxxxx-Xxxxxx and/or Greenville, as applicable, shall
deliver to GM conforming V-8 Manifolds pursuant to GM releases and GM
requirements of 24,000 V-8 Manifolds per week (the "Required Amount")
as of October 1, 1996. Xxxxxxx-Xxxxxx and/or Greenville, as
applicable, plans to produce the Required Amount on a 5-day, 3-shift
basis but inititially Xxxxxxx-Xxxxxx and/or Greenville, as applicable,
will work on a 6 or 7-day per week basis, if necessary, to produce the
Required Amount. No later than March 15, 1997, Xxxxxxx-Xxxxxx and/or
Greenville, as applicable, will produce the Required Amount on a 5-day,
3-shift basis, and if required by GM, Xxxxxxx-Xxxxxx and/or Greenville,
as applicable, will work a minimum of two Satureday per four week
period to provide at least 8,800 V-8 Manifolds over and above the
Required Amount during each such four week period; and
(b) The Harvard Group shall continue production and delivery
of all Component Parts called for by the Purchase Orders pursuant to
GM releases (excluding the Xxxx Housing which has been resourced).
3. No Further Modification. With the exception of engineering,
specification or standard changes which may be required by GM in the future,
the Harvard Group will not seek any modification to the terms and conditions of
contracts and agreements between the Harvard Group and GM, including the
Purchase Orders, this Agreement and the Access and Occupancy Agreement,
including price increases, for so long as Component Parts are being installed
in vehicles. Without limiting the generality of the foregoing, with the
exception of engineering, specification or standard changes which may be
required by GM in the future, the Harvard Group will not seek any further price
increase from GM regarding the V-8 Manifold for so long as such V-8 Manifold is
being installed in vehicles.
4. Sharing Cost Savings. Xxxxxxx-Xxxxxx and/or Greenville, as
applicable, will share reductions in costs resulting from reduction in scrap
rate and/or implementation of a sand reclamation process on a 50-50 basis with
GM as follows:
(a) For the period from July 1 through June 30 (the
"Measurement Period") commending July 1, 1996 through the life of the V-8
Manifold Program, Xxxxxxx-Xxxxxx and/or Greenville, as applicable, shall retain
50% of the Cost Savings (as defined below)
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achieved in such Measurement Period and 50% of such Cost Savings shall
be passed on to GM by means of a price reduction on the V-8 Manifold.
(b) For the purposes of this Agreement, "Cost Savings"
resulting from reduction in scrap rate shall mean the difference
between (i) the actual variable manufacturing cost to produce V-8
Manifolds multiplied by the actual scrap rate for the most recently
ended Measurement Period and (ii) the actual variable manufacturing
cost to produce V-8 Manifolds multiplied by the actual scrap rate for
the immediately preceding Measurement Period. For purposes of this
calculation, the beginning actual variable manufacturing cost
multiplied by the actual scrap rate as of June 30, 1996 shall be
$6,9018. The initial variable manufacturing cost and the method for
determining the future values will be computed consistent with the
previously agreed upon method developed between the Company and BBK
Ltd. (GM's representative).
(c) At the end of each Measurement Period, sand and related
disposal Cost Savings resulting from implementation of a sand
reclamation system will be determined by the parties and such Cost
Savings will also be shared by Xxxxxxx-Xxxxxx and/or Greenville, as
applicable, and GM on a 50/50 basis.
5. Payment Terms. For the period commencing August 1, 1996 and ending
at the close of business on December 31, 1996, with respect to V-8 Manifolds
only, all invoices (a) received by GM from the 15th of the month will be paid
by the 10th of the following month, and (b) received by GM from the 16th to the
last day of the month will be paid by the 25th of the following month. Payment
terms with respect to all other Component Parts shall be those set forth in the
underlying Purchase Orders.
6. Molds and Cores. Harvard will make arrangements to obtain, at the
Harvard Group's cost, for installation no later than March 15, 1997, three
additional sets of the molds described on Schedule 6 ("Molds") at an aggregate
cost of approximately $275,000 and one set of core boxes described on Schedule
6 ("Cores") at a cost of approximately $325,000, which Molds and Cores are to
be used in connection with the production of V-8 Manifolds. The Harvard Group
acknowledges and agrees that upon completion of such Molds and Cores, GM will
solely own all right, title and interest in and to the Molds and Cores and the
Harvard Group will have no rights whatsoever in such Molds and Cores, other
than the right to use such Molds and Cores as bailee at will to produce
Component Parts for GM.
7. Business Plan; Access to Information.
(a) On or before 5 days after execution of this Agreement,
Harvard Industries, Inc. shall submit a business plan which demonstrates in
GM's sole judgment the long-term financial viability of the Greenville
manufacturing facility (the "Greenville Plant"). In addition, every six
months, Harvard Industries, Inc. shall provide GM consolidated and
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individual balance sheets, income statements and cash flows for
Harvard Industries, Inc., Xxxxxxx-Xxxxxx, Greenville and the
Greenville Plant. The Harvard Group shall also provide GM, upon
request, information or business plans regarding any facility or
business unit or subsidiary of the Harvard Group, on a consolidated or
individual basis as specified on Schedule 7 attached hereto.
(b) The Harvard Group shall provide to GM or its designee full
access to the Greenville Plant to monitor operations and review
financial and costing information. In addition, the Harvard Group
shall provide to GM, copies of all notices of default or
non-compliance received from Agent or any Lender.
(c) GM shall keep all information provided to it by Harvard
Group that is labeled "confidential" or "non-public" when received by GM,
confidential unless and until such information is in the public domain, and GM
will advise its employees who have access to such non-public information that
so long as such information is not in the public domain, they should not trade
in Harvard securities.
8. Access and Occupancy Agreement. Simultaneously with the
execution of this Agreement, Xxxxxxx-Xxxxxx and Greenville shall execute and
deliver to GM an agreement in the form of Schedule 8 attached hereto, (the
"Access and Occupancy Agreement"). In addition, upon request by GM,
Xxxxxxx-Xxxxxx and Greenville agree to execute or to cause Xxxxxxx-Xxxxxx
Pottstown, Inc. and/or Xxxxxxx-Xxxxxx Toledo, Inc. to execute, an Access and
Occupancy Agreement relating to the plants located in Pottstown and Toledo on
terms and conditions substantially identical to the terms and conditions of
agreement attached hereto as Schedule 8 (a) subject to Ford Motor Company
consenting to the parties entering into such agreement, and (b) if any time
prior to the date on which GM exercises its Right to Occupy under such other
Access and Occupancy Agreements, any single customer, other than Ford, has 25%
or more of the total production at such facility, then subject to such
customer(s)' consent.
9. Tooling Acknowledgement. The Harvard Group agrees that all
tooling, assembly, fixtures, test or checking fixtures, gauges, jigs, patterns,
casting patterns, dies and molds, including, without limitation, the Molds and
Cores referred to in paragraph 6 above, being used by the Harvard Group in
connection with its manufacture of Component Parts for GM, together with all
appurtenances, accessions thereto (collectively the "Tooling"), except for
those specific items of tooling set forth on Schedule 9 (the "Non-GM Owned
Tooling"), are owned by GM and are being held by the Harvard Group and, to the
extent the Harvard Group has transferred the tooling to third parties, by such
parties as bailee at will pursuant to bailment arrangements. The Harvard Group
acknowledges and agrees that any and all tooling being utilized to manufacture
Component Parts for GM, whether pursuant to direct agreements between the
Harvard Group and GM or agreements between the Harvard Group and third parties,
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except for the Non-GM Owned Tooling. Neither the Harvard Group nor any other
person or entity other than GM has any right, title or interest in the Tooling,
other than the Harvard Group's right, subject to GM's unfettered discretion,
to utilize the Tooling to manufacture the Component Parts. The Harvard Group
hereby grants GM a power of attorney to execute on its behalf and file a notice
financing statement to reflect GM's interest in the Tooling and/or to affix any
plate, stamp or other evidence of GM ownership upon each item of tooling. GM
shall have the right to take immediate possession of the Tooling at any time
without payment of any kind from GM to the Harvard Group. The Harvard Group
agrees to cooperate with GM in GM's taking possession of the Tooling.
Likewise, effective immediately upon written notice to the Harvard Group,
without further notice or court hearings, which rights, if any, are hereby
waived, GM shall have the right to immediately enter the Harvard Group's
premises and take possession of any and all Tooling without payment of any kind
from GM to the Harvard Group, and the Harvard Group agrees to provide GM or its
nominee with such access. The fact that GM's right to possession of the
Tooling is and shall be independent of GM's obligation to make payments to
the Harvard Group (including payments for tooling refurbishment, repair or
construction) shall not affect any other obligation GM may have to make such
payments to the Harvard Group after GM has taken possession of the Tooling.
Further, nothing in this acknowledgement is intended to affect any claims the
Harvard Group may have against GM for taking possession of any property which is
determined to not to be the property of GM.
10. Second Assembly Line. The Harvard Group hereby acknowledges and
agrees that the second assembly line described in Schedule 10, including,
without limitation, all equipment, machinery, test, assembly or checking
fixtures, parts, hardware, software and all appurtenances, accessions and
accessories thereto (the "Second Line") currently being installed at the
Harvard Group's Greenville Plant is solely owned by GM and neither the Harvard
Group nor any other person or entity other than GM has any right, title or
interest in the Second Line, other than the Harvard Group's right, subject to
GM's unfettered discretion, to utilize the Second Line to manufacture V-8
Manifolds. The Harvard Group hereby grants GM the power of attorney to execute
on its behalf and file a notice financing statement to reflect GM's ownership
interest in the Second Line and/or to affix any plate, stamp or other evidence
of GM's ownership upon each item of the Second Line. GM shall have the right to
take immediate possession of the Second Line at any time without payment of any
kind from GM to the Harvard Group and the Harvard Group agrees to cooperate
with GM in GM's taking possession of the Second Line. Likewise, effective
immediately upon written notice to the Harvard Group, without further notice or
court hearing, which rights, if any, are hereby waived, GM shall have the right
to enter the Harvard Group's premises and take possession of all or any part of
the Second Line without payment of any kind from GM to the Harvard Group, and
the Harvard Group agrees to provide GM or its nominees with such access.
11. Fees and Expenses. The Harvard Group hereby agrees to reimburse
GM for all legal and consultant fees and expenses incurred by GM in connection
with the Harvard Group, ("GM's Costs") for services rendered on or after June
1, 1996. GM shall have the right to offset
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GM's Costs from amounts owed by GM to the Harvard Group in amount not to exceed
$20,000 per month. GM's Costs in excess of $20,000 per month may be carried
forward and set off in future months, provided that no monthly set off shall
exceed $20,000.
12. Premium Costs. The Harvard Group has paid to GM the sum of
$550,000 representing reimbursement of premium costs incurred by GM in 1995
under its Purchase Orders with GM.
13. Amendment to Purchase Orders. The Purchase Orders are hereby
amended effective immediately to include the following as paragraph 32 to the
Purchase Order terms and conditions:
"32. Access Rights. This Purchase Order is subject to all terms
and conditions of that certain Access and Occupancy Agreement dated
March __, 1997 between, among other parties, Buyer and Seller and
consented to by The CIT Group/Business Credit, Inc. (as agent and
lender). The Access and Occupancy Agreement is incorporated by
reference and shall also be deemed a part of this Purchase Order
for all purposes.
14. Agreements of Lenders and Lessor.
(a) Simultaneously with the execution of this Agreement, Harvard
Industries, Inc. shall deliver to GM the consent and acknowledgement of
the Harvard Group's Lenders in the form of Schedule 14-A attached hereto.
(b) It is a condition precedent to GM's duties and obligations
under this Agreement that simultaneously with the execution of this Agreement,
the Lenders enter into the Acknowledgement attached hereto as Schedule 14-A.
15. Bid List. So long as the Harvard Group fully complies with all of
the terms and conditions of this Agreement in all material respects, the Access
and Occupancy Agreement and the Purchase Orders (as amended hereby), GM shall
permit the Harvard Group to bid on future GM programs, but GM shall have no
obligation whatsoever to award future business to the Harvard Group and
reserves all rights to award such future business in GM's absolute discretion.
16. Harvard Release. Except for Harvard Reserved Claims, as defined
below, Xxxxxxx-Xxxxxx, Inc., Xxxxxxx-Xxxxxx Greenville, Inc. and Harvard
Industries, Inc., on behalf of themselves and all of their subsidiaries hereby
release and waive all claims and causes of action of any kind or nature against
GM, its officers, agents, employees, and attorneys, and covenant not to xxx GM,
based upon any facts or claims existing as of July 25, 1996. The foregoing
release and covenant not to xxx does not release or affect claims arising from
facts and occurrences after July 25, 1996. For the purposes of this Agreement,
"Harvard Reserve Claims" means claims for goods delivered
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to GM and not yet paid for and claims for Tooling refurbishment and repair.
Nothing in this Agreement shall be construed as an admission by GM as to the
validity or enforceability of any of Harvard Reserved Claims. NOTWITHSTANDING
THE FOREGOING, IF GM BREACHES ANY TERM OR CONDITON OF THIS AGREEMENT OR THE
ACCESS AND OCCUPANCY AGREEMENT, THEN THE RELEASE AND COVENANT NOT TO XXX
PROVIDED BY THE HARVARD GROUP IN THIS PARAGRAPH 16 SHALL BE NULL AND VOID AB
INITIO AND HAVE NO FORCE OR EFFECT WHATSOEVER, BUT GM'S RELEASE AND COVENANT
NOT TO XXX SET FORTH IN PARAGRAPH 17 SHALL NOT BE AFFECTED THEREBY AND SHALL
CONTINUE TO BE AND REMAIN VALID AND IN FULL FORCE AND EFFECT.
17. GM Release. Except for GM Reserved Claims as defined below, GM
hereby releases and waives all claims and causes of action of any kind or
nature against Harvard Industries, Inc., Xxxxxxx-Xxxxxx, Inc. and
Xxxxxxx-Xxxxxx Greenville, Inc., its officers, agents, employees and attorneys,
and covenants not to xxx such entities, based upon any facts or claims as of
July 25, 1996. The foregoing release and covenant not to xxx does not release
or affect claims arising from facts and occurrences after July 25, 1996,
including, without limitation, any claims related to goods delivered to GM
after July 25, 1996. For the purposes of this Agreement "GM Reserved Claims"
means claims with respect to goods delivered prior to the date of this Agreement
which have been rejected and/or returned by GM. Nothing in this Agreement
shall be construed to be an admission by Harvard Industries, Inc.,
Xxxxxxx-Xxxxxx, Inc. and Xxxxxxx-Xxxxxx Greenville, Inc., as to the validity or
enforceability of any of the GM Reserved Claims. NOTWITHSTANDING THE FOREGOING,
IF THE HARVARD GROUP BREACHES ANY TERM OR CONDITION OF THIS AGREEMENT OR THE
LICENSE AND OCCUPANCY AGREEMENT, THEN THE RELEASE AND COVENANT NOT TO XXX
PROVIDED BY GM IN THIS PARAGRAPH 17 SHALL BE NULL AND VOID AB INITIO AND HAVE NO
FORCE OR EFFECT WHATSOEVER, BUT THE HARVARD GROUP'S RELEASE AND COVENANT NOT TO
XXX SET FORTH IN PARAGRAPH 16 SHALL NOT BE AFFECTED THEREBY AND SHALL CONTINUE
TO BE AND REMAIN VALID AND IN FULL FORCE AND EFFECT.
18. 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.
19. 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 consideration in the interpretation
hereof. All references to Sections, Schedules and Exhibits are to Sections,
Schedules and Exhibits in or to this Agreement unless otherwise specified.
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20. 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.
21. 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 Harvard
Industries, Inc., Xxxxxxx-Xxxxxx, Inc., Xxxxxxx-Xxxxxx Greenville, Inc., and
GM. This Agreement and all obligations of the parties hereunder shall be
binding upon the successors and assigns of such parties, and shall, together
with the rights and remedies of the parties hereunder, inure to the benefit of
such parties and their successors and assigns. The Harvard Group may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of GM, except in connection with a merger, consolidation or
transfer of all or substantially all of the assets of any member of The Harvard
Group and assumption by the transferee of all of the transferor's obligations
hereunder and subject to any otherwise applicable limitations on assignment of
the Purchase Orders. 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.
22. 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, and 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 the Harvard Group: Harvard Industries, Inc.
0000 X. Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
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and a copy to: Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to GM: General Motors Corporation
Worldwide Purchasing
Delphi Automotive Systems
Energy & Engine Management Systems
0000 X. Xxxxxxx Xx.
X.X. 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.
23. 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.
24. 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 and supersedes all prior oral or written agreements among
the parties, including, without limitation, the Term Sheet. To the extent any
terms or conditions of this Agreement are inconsistent or conflict with terms of
any prior agreements between the parties, the terms of this Agreement shall
govern and control.
25. 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
rights GM has under the Purchase Orders.
26. Representations and Warranties by Harvard Industries, Inc. Harvard
Industries, Inc. represents and warrant to GM that Xxxxxxx-Xxxxxx, Inc. is a
Delaware corporation in good standing in the state of Delaware and
Xxxxxxx-Xxxxxx Greenville, Inc. is a Delaware corporation in good standing in
the State of Delaware, and that each of such corporations are either direct or
indirect wholly owned subsidiaries of Harvard Industries, Inc. Harvard
Industries, Inc. has no
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subsidiaries other than Xxxxxxx-Xxxxxx, Greenville and all of the other
entities listed on Schedule 26 hereto.
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 PRESENTATIONS, 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.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first written above.
XXXXXXX-XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Its: President
-------------------------------
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(signatures continued from previous page)
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
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Xxxxx X. Xxxxxxxx, Notary Public
Oakland County, Michigan
My commission expires: 5/20/97.
HARVARD INDUSTRIES, 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 Harvard Industries, Inc., a
Florida 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)
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.
GENERAL MOTORS CORPORATION
By:
------------------------------------
Its: President
-------------------------------
STATE OF )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day of
___________, 1997 by Xxxxx X. Xxxxxxx, the President of General Motors
Corporation, a Delaware corporation, on behalf of the corporation.
---------------------------------------
, Notary Public
-----------------------
County, Michigan
---------------------
My commission expires:
--------
(signatures continued on next page)
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XXXXXXX-XXXXXX GREENVILLE, INC.
By:
-----------------------------------
Its:
-------------------------------
STATE OF )
) SS
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this ___ day of
_____________, 1997 by ________________________________________, the _________
__________________, of Xxxxxxx-Xxxxxx Greenville, Inc., a __________
corporation, on behalf of the corporation.
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, Notary Public
--------------
County,
--------------
My commission expires:
--------
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,
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My commission expires:
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SCHEDULES
6 - MOLDS AND CORE BOXES
8 - ACCESS AND OCCUPANCY AGREEMENT
9 - NON-GM-OWNED TOOLING
10 - SECOND ASSEMBLY LINE
14-A - LENDERS' ACKNOWLEDGEMENT
26 - HARVARD SUBSIDIARIES
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SCHEDULE 6
MOLDS AND CORE BOXES
1. Three (3) Production Molds:
#31, #32, & #33
2. Core Boxes:
#22 - Frame Cores
#25 - Runners
#30 - "H" Core & Water Crossover
#35 - EGR Passage
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SCHEDULE 7
INFORMATION TO BE PROVIDED
The Harvard Group will provide GM information or business plans on an
individual basis for the following facilities, business units or subsidiaries
of the Harvard Group.
Harvard Industries, Inc. - corporate business unit
Harvard Interiors, a business unit of Harvard Industries, Inc.
Xxxxxx Automotive, Inc., a wholly-owned subsidiary of Harvard
Industries, Inc.
Xxxxxxx-Xxxxxx, Inc., a wholly-owned subsidiary of Harvard Industries,
Inc., including individual breakdowns for the following wholly owned
subsidiaries of Xxxxxxx-Xxxxxx, Inc.:
Xxxxxxx-Xxxxxx - Greenville, Inc.
Xxxxxxx-Xxxxxx - Pottstown, Inc.
Xxxxxxx-Xxxxxx - Toledo, Inc.
The Harvard Group will provide GM information and business plans on a
consolidated basis for Harvard Industries, Inc. "Other Automotive" business
unit which includes:
Xxxxxxxx-Xxxxxx Corporation, a wholly owned subsidiary of Harvard
Industries, Inc.
Xxxxx-Albion Corporation, a wholly owned subsidiary of Harvard
Industries, Inc.; and
Trim Trends, a business unit of Xxxxx-Albion Corporation
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SCHEDULE 8
ACCESS AND
OCCUPANCY AGREEMENT
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SCHEDULE 9
NON-GM-OWNED TOOLING
Purchase Order #TXFSX Rev.000 and Rev. 001:
ITEM DELIVERY DATE % COMPLETED
Production Die #1 In 100%
Production Die #2 9/19/97 40%
Production Die #3 1/5/98 30%
Production Dies #4 & #5 TBD 0%
One (1) Holder Die TBD 0%
Degate Saw 9/1/97 20%
Trim Die 9/1/97 20%
Purchase Order #TXFSY Rev. 000 and Rev. 001:
ITEM DELIVERY DATE % COMPLETED
Production Die #1 In 100%
Production Die #2 6/9/97 75%
Production Die #3 7/21/97 70%
Production Die #4 9/2/97 50%
Production Die #5 12/19/97 25%
Production Dies #6-9 TBD 0%
Dedicated Mandrel Removal In* 100%
Dedicated Mandrel Liner 3/17/97 90%
Fixture
Dedicated Saw Degate 3/10/97 90%
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Dedicated AutoTrim Line 3/17/97 90%
Leak Tester (Audit) 4/15/97 80%
Mandrel/Fixture Loader 3/17/97 80%
Liner/Fixture Loader 3/17/97 80%
*Mandrel/Xxxxxx equipment includes automated heating, loading, and delivery
mechanisms for delivery to production dies.
Purchase Order #TXF2T Rev. 000 and Rev. 001:
ITEM DELIVERY DATE % COMPLETE
Three (3) Single Cavity #1 Die (Dev./Prod.): In 100%
Dies #2 Die: 6/20/97 60%
#3 Die: 7/21/97 50%
Two (2) Sets Core Boxes Box #1: In 100%
Box #2: 2/24/97 95%
One Pressure Tester In 100%
One Set Gages Completed by 5/15/97 75%
CNC "Weep Groove" 6/25/97 40%
Machine (P.O. Rev. 001)
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SCHEDULE 10
SECOND ASSEMBLY LINE
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Schedule 10
Second Assembly Line
The second assembly line purchased by General Motors for the
Greeneville plant consists of the following:
Four (4) Dial Index Machines, the serial numbers are:
1848
1849
1850
1851
Six (6) Ateq Pressure Testers, the serial numbers are;
954M2501
954M2502
958M7401
200N1961
200N2962
694K609-01
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SCHEDULE 14-A
LENDERS' ACKNOWLEDGEMENT
While not a party to the foregoing agreement (the "Accommodation
Agreement") by and among the General Motors Corporation ("GM"), Xxxxxxx-Xxxxxx,
Inc. ("Xxxxxxx-Xxxxxx"), Xxxxxxx-Xxxxxx Greenville, Inc. ("Greenville") and
Harvard Industries, Inc. ("Harvard"), CIT Group/Business Credit, Inc. for
itself and as agent for Congress Financial Corporation General Electric Capital
Corporation Xxxxxx Financial, Inc., Finova Capital Corporation and Foothill
Capital Corporation, (collectively, "Lenders") are parties to various loan and/
or security agreements with Xxxxxxx-Xxxxxx, Greenville and/or Harvard. In such
capacity, Lenders acknowledge, consent to, and agree to the entry into by
Xxxxxxx-Xxxxxx, Greenville and Harvard of the Accommodation Agreement. The fact
that Lenders are executing this Acknowledgement shall not in any way make
Lenders guarantors or sureties for Harvard's, Xxxxxxx-Xxxxxx' or Greenville's
performance under the Accommodation Agreement.
Lenders acknowledge and agree that they have no liens or security
interest in or to (a) the Tooling, except for the Non-GM Owned Tooling, and (b)
the Second Line (each as defined in the Agreement). Lenders also acknowledge
and agree that any and all Tooling being used to manufacture parts for GM,
whether pursuant to direct agreements between Xxxxxxx-Xxxxxx and/or Greenville,
as applicable, and GM or agreements between Xxxxxxx-Xxxxxx and/or Greenville,
as applicable, and third parties is subject to the terms of this
acknowledgement and included within the definition of Tooling, except for the
Non-GM Owned Tooling.
Lenders further acknowledge that, subject to the terms of the
Accommodation Agreement, GM shall have the right to take immediate possession
of the Second Line and the Tooling, except for the Non-GM Owned Tooling, at any
time without payment of any kind from GM to Lenders, Xxxxxxx-Xxxxxx or
Greenville, and Lenders will not interfere in any way should GM decide to
exercise such right.
Lenders' acknowledgement and consent as set forth herein is provided in
reliance upon, and with the express understanding that, the Accommodation
Agreement will not be amended without the prior written consent of the Lenders.
CIT GROUP/BUSINESS CREDIT, INC. for itself
and as agent for the Lenders
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Vice President
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Date: April 16 , 1997
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