APPENDIX C Access and Security Agreement
| Jurisdiction | United States |
APPENDIX C Access and Security Agreement
General Motors Corporation ("GM"), Chrysler LLC ("Chrysler" and together with GM, collectively, "Customers") and Cadence Innovation LLC ("Cadence" or "Supplier") enter into this Access and Security Agreement (the "Agreement") on August 26, 2008.
A. Pursuant to various purchase orders, supply agreements, and/or releases issued by Customers to Supplier (collectively, the "Purchase Orders" or individually, a "Purchase Order"), Supplier is obligated to manufacture either directly or indirectly Customers' requirements of certain component parts, service parts or assembled goods (collectively, the "Component Parts" or individually, a "Component Part").
B. Bank of America, N.A. ("Agent") as agent for various lenders ("Lenders") and Supplier are parties to various loan and security agreements and related documents (collectively, as more fully defined below, the "Loan Documents"). Under the Loan Documents, Agent, for the benefit of Lenders, has a lien on substantially all of Supplier's real and personal property.
C. Supplier has advised Customers and Agent that it faces certain financial and operational problems, both of which may threaten to cause interruption in the production of Component Parts.
D. Supplier has determined it must file a petition for relief (the "Bankruptcy Case") under Chapter II and Title II of the United States Code, 11 U.S.C. §101 et seq. (the "Bankruptcy Code") and seek to obtain debtor-in-possession financing from Lenders to accomplish the purposes of the Accommodation Agreement.
E. Supplier has requested and Customers and Lenders have agreed to provide certain accommodations as set forth in the Accommodation Agreement (the "Accommodation Agreement") of even date herewith. In consideration of the accommodations provided by Customers, Supplier has agreed to grant Customers a "Right of Access" (as defined below) to those facilities listed in Exhibit A attached hereto (the "Facilities").
F. Supplier acknowledges that any material delay in production of the Component Parts or a default under the Purchase Orders will cause Customers irreparable harm.
G. Supplier is entering into this Agreement to afford Customers the right to use certain of Supplier's assets located at the Facilities as provided below if a Default (as defined below) occurs.
BASED ON THE FOREGOING RECITALS and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Customers and Supplier agree as follows:
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:
"Accounts" means any "account" or "chattel paper," as defined in Sections 9- 102(a)(2) and 9-102(a)(11), respectively, of the "Code" (defined below), owned now or hereafter by Supplier, and also means and includes: (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 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.
"Chattel Paper" means all "chattel paper" as defined in Section 9-102(a)(11) of the Code.
"Code" means the Uniform Commercial Code as in effect in the State of Michigan as of the date of this Agreement.
"Contract Rights" means all rights of Supplier (including to payment) under each "Contract" (defined below).
"Contracts" or individually, "Contract", means, any licensing agreements and any and all other contracts, supply agreements, or other agreements used in the manufacture, production or assembly 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" (defined below), "Inventory" (defined below), 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" means any of the following events:
(a) Supplier repudiates or breaches any provision of any Purchase Order, the consequence of which is a substantial likelihood that the affected Customer's production at any one or more of its assembly operations worldwide may be interrupted;
(b) Supplier requests a material modification of the terms of a Purchase Order(s) or the Accommodation Agreement and indicates Supplier's inability or refusal to perform under the terms of the involved Purchase Order or the Accommodation Agreement, as the case may be, unless the involved Customer accedes to such modification;
(c) Supplier fails to provide adequate assurance of timely and property completion of services or delivery of goods in any respect in accordance with a Purchase Order or the Accommodation Agreement, as the case may be, upon receipt of a Customer's demand for same;
(d) Supplier fails to timely provide the Lenders' Acknowledgment and Consent, in form attached as Schedule 12(a), executed by Lenders or any Lessor's Acknowledgment and Consent, in form attached as Schedule 12(c), which may be required, executed by the applicable lessor;
(e) A Chapter 7 Petition under the United States Bankruptcy Code is filed by or against Supplier or if any Chapter 11 Bankruptcy Case filed by or against Supplier is subsequently converted to Chapter 7 (notwithstanding the foregoing, in the event of an involuntary Chapter 7 petition being filed against Supplier, a Default will not occur unless an Order for relief is entered in the Chapter 7 case without the case being converted to Chapter 11);
(f) An Event of Default occurs under the Accommodation Agreement;
(g) Lenders commence any enforcement action with respect to a material portion of the Operating Assets;
(h) Lenders terminate their commitment to provide revolving loans under the Loan Documents or post-petition financing agreements, as applicable; or
(i) The Bankruptcy Court in Supplier's bankruptcy case refuses or otherwise fails to enter an order approving this Agreement and the Accommodation Agreement within 30 days of the date of the filing of the bankruptcy case.
"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 used in the manufacture, production or assembly of the Component Parts and will also mean and include all machinery, equipment, vehicles, furnishings, and fixtures (as such terms are defined in Section 9-102 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 the manufacture or production of the 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 the manufacture, production or assembly of the Component Parts, including, without limitation, customer lists, rights in intellectual property, goodwill, trade names, service marks, trade secrets, patents, trademarks, copyrights, applications therefore, permits, licenses, now owned or hereafter acquired by 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, which are used in the manufacture, production or assembly of the 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
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