Exhibit 10.1
================================================================================
MASTER SERVICES AGREEMENT
between
VISTEON CORPORATION, a Delaware corporation,
and
AUTOMOTIVE COMPONENTS HOLDINGS, LLC, a Delaware limited liability company
dated as of September 30, 2005
================================================================================
TABLE OF CONTENTS
Page
----
Article I DEFINITIONS.................................................... 2
1.1 Definitions................................................... 2
Article II TERM OF AGREEMENT............................................. 6
2.1 Term.......................................................... 6
Article III SERVICES..................................................... 6
3.1 Scope......................................................... 6
3.2 Limitations and Exclusions.................................... 7
3.3 Provision of Services to ACH Buyers and to Ford............... 9
3.4 Material Change in Volume or Priority of Services............. 10
3.5 Management and Control of the Services........................ 11
3.6 New Services.................................................. 12
3.7 Initial IT Transition Services................................ 13
3.8 Mutual Obligations............................................ 13
3.9 Consents...................................................... 13
Article IV DISPUTES AND DISPUTE RESOLUTION............................... 14
4.1 Disputes...................................................... 14
4.2 Notice of Non-Compliance...................................... 15
4.3 Dispute Resolution............................................ 16
Article V CHARGES AND PAYMENTS........................................... 16
5.1 Fees for Services............................................. 16
5.2 Capital Investments........................................... 18
5.3 Payment....................................................... 19
5.4 Audits and Access to Information.............................. 21
5.5 Taxes......................................................... 23
Article VI TERMINATION................................................... 23
6.1 Termination by Visteon........................................ 23
6.2 Termination of Agreement and Services by ACH.................. 24
6.3 Effect of Expiration or Termination; Survival................. 25
Article VII USE OF VISTEON SOFTWARE AND EQUIPMENT........................ 25
7.1 Use of Visteon Software and Equipment......................... 25
Article VIII PERSONNEL, FACILITIES AND SYSTEMS........................... 26
8.1 Personnel..................................................... 26
8.2 Facilities.................................................... 26
8.3 Technology Changes............................................ 26
Article IX INDEMNIFICATION............................................... 28
9.1 Indemnification............................................... 28
9.2 Exclusive Remedy.............................................. 28
Article X COMPLIANCE WITH AND CHANGES TO LAWS AND POLICIES............... 28
10.1 Compliance with Laws and Policies............................. 28
10.2 Changes in Laws............................................... 28
Article XI CONFIDENTIAL INFORMATION...................................... 29
11.1 Confidential Information...................................... 29
Article XII LIMITATION OF LIABILITY; NO WARRANTIES....................... 30
12.1 Limitation of Liability....................................... 30
12.2 Exclusion of Incidental and Consequential Damages............. 30
12.3 No Warranties................................................. 30
12.4 Essential Elements............................................ 30
Article XIII FORCE MAJEURE............................................... 31
13.1 Force Majeure................................................. 31
Article XIV INTELLECTUAL PROPERTY........................................ 31
14.1 Intellectual Property......................................... 31
14.2 Interest in Proprietary Information........................... 31
Article XV MISCELLANEOUS................................................. 33
15.1 Notices....................................................... 33
15.2 Amendments; Waiver............................................ 34
15.3 Interpretation................................................ 34
15.4 Successors and Assigns........................................ 34
15.5 Governing Law................................................. 35
15.6 Jurisdiction.................................................. 35
15.7 Waiver of Jury Trial.......................................... 35
15.8 Counterparts; Effectiveness; Third-Party Beneficiaries........ 35
15.9 Entire Agreement.............................................. 35
15.10 Severability.................................................. 36
15.11 Independent Contractors....................................... 36
15.12 Specific Performance.......................................... 36
EXHIBITS
Exhibit A FORM OF PARTICIPATION AGREEMENT FOR ACH BUYERS................ 1
Exhibit B FUNCTIONAL SERVICE AREA STATEMENTS OF WORK.................... B-1
Exhibit C INITIAL IT TRANSITION SERVICES................................ C-1
Exhibit D SELL-SIDE ACTIVITES........................................... D-1
Exhibit E INTERNAL AUDIT AND CONTROLS................................... E-1
ii
MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT, dated as of September 30, 2005 is made by
and between VISTEON CORPORATION, a Delaware corporation ("Visteon") and
AUTOMOTIVE COMPONENTS HOLDINGS, LLC, a Delaware limited liability company ("ACH
LLC", and collectively with its Subsidiaries, "ACH"), and shall be effective as
of the closing date of the Purchase Agreement (as defined herein) (the
"Effective Date"). Visteon and ACH are each individually referred to herein as a
"Party," and collectively, as the "Parties."
RECITALS
WHEREAS, Visteon and Automotive Components Holdings, Inc., a Delaware
corporation ("ACH Holdings"), have entered into that certain Contribution
Agreement dated as of September 12, 2005 (the "Contribution Agreement") pursuant
to which, among other things, Visteon contributed or transferred, or caused to
be contributed or transferred, to the capital of ACH LLC certain assets and
liabilities relating to the Business (as defined in the Contribution Agreement);
WHEREAS, Ford Motor Company ("Ford") and Visteon have entered into that
certain Visteon "B" Purchase Agreement dated as of September 12, 2005 (the
"Purchase Agreement") pursuant to which, among other things, Visteon has agreed
to sell to Ford, and Ford has agreed to purchase from Visteon, all of the
outstanding capital stock of ACH Holdings;
WHEREAS, Visteon and ACH Holdings have entered into, concurrently with the
execution and delivery of this Agreement by Visteon and ACH LLC, a Software
License and Contribution Agreement (the "Software License and Contribution
Agreement") pursuant to which, among other things, Visteon transferred or
licensed certain intellectual property rights to ACH LLC, certain ACH Buyers (as
defined herein) and Ford;
WHEREAS, ACH wishes Visteon to provide, and Visteon wishes to provide,
certain information technology and other transitional services to ACH, certain
ACH Buyers and Ford, so that ACH may continue to operate the Business, and to
facilitate the transfer of components of the Business from Visteon to ACH, ACH
Buyers and Ford; and
WHEREAS, it is a condition of the Contribution Agreement that Visteon and
ACH enter into this Agreement, which sets forth the terms and conditions under
which such services will be provided by Visteon to ACH, certain ACH Buyers and
Ford.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
Capitalized terms set forth in this Agreement (including any plurals)
shall have the meanings set forth in this Article I when such terms are used in
this Agreement. Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Contribution
Agreement.
"AGREEMENT" means this Master Services Agreement, as the same may be
amended, modified or supplemented from time to time pursuant to Section 15.2(a).
"APPLICABLE DATE" has the meaning set forth in Section 3.3(b).
"BUSINESS DAYS" means a day, other than Saturday, Sunday or any other day
on which commercial banks in Detroit, Michigan are authorized or required by law
to close.
"CAPITAL INVESTMENT NOTICE" has the meaning set forth in Section 5.2(a).
"CONFIDENTIAL INFORMATION" has the meaning set forth in Section 11.1(a).
"CONTRIBUTION AGREEMENT" has the meaning set forth in the recitals.
"COST" has the meaning set forth in Section 5.1(d).
"DESIGNATED EXECUTIVES" has the meaning set forth in Section 4.1(c).
"DISPUTE" has the meaning set forth in Section 4.1(a).
"EFFECTIVE DATE" has the meaning set forth in the preamble.
"EQUIPMENT" means equipment owned or leased by Visteon, its Affiliates or a
Visteon Third Party Service Provider and not contributed to ACH pursuant to the
Contribution Agreement through which Services will be provided hereunder
(including, but not limited to, mainframe equipment, servers, data storage
devices, wide area network and local area network equipment, peripherals and
desktop and laptop computers, telephones, telephone systems, telephone networks,
voice mail systems and voice mail networks, systems, systems architecture,
Software, databases, technology infrastructure and applications, test equipment
and related fixtures, and warehouse equipment).
"ESTIMATED INVOICE" has the meaning set forth in Section 5.3(a).
"ESTIMATED MONTHLY SERVICE FEE" has the meaning set forth in Section
5.3(a).
"EXCLUDED SERVICE" means (a) any Service specifically set forth on Section
3.11(b)(i) of the Disclosure Schedule, (b) any Service that is specifically
identified as an Excluded Service in a Statement of Work, provided, however,
that such Service shall be an Excluded Service only for purposes of the
Statement of Work in which it is so identified, (c) any Service (including any
2
Service performed by Leased Employees) that is not specifically identified in a
Statement of Work as of May 1, 2006 or (d) any Service that was identified in a
Statement of Work but is subsequently terminated by ACH in accordance with
Section 6.2 of this Agreement.
"EXTENDED TERM" has the meaning set forth in Section 2.1(b).
"FACILITIES" has the meaning set forth in Section 8.2(a).
"FIXED ALLOCATION RATIO" has the meaning set forth in Section 5.3(b).
"FORCE MAJEURE" has the meaning set forth in Section 13.1.
"FUNCTIONAL SERVICE AREA STATEMENT(S) OF WORK" means the following
statements of work, as amended from time to time in accordance with this
Agreement:
Exhibit B-1: Communications
Exhibit B-2: Real Estate
Exhibit B-3: Legal
Exhibit B-4: Quality (including EPL-Quality)
Exhibit B-5: Purchasing
Exhibit B-6: Intellectual Property
Exhibit B-7: Manufacturing Engineering & PLT
Exhibit B-8: Material Planning and Logistics
Exhibit B-9: Aftermarket and OE Service
Exhibit B-10: Engineering
Exhibit B-11: Information Technology
Exhibit B-12: Mexico Operation
Exhibit B-13: Human Resources
Exhibit B-14: Finance.
"INITIAL TERM" has the meaning set forth in Section 2.1(a).
"INITIAL IT TRANSITION SERVICES" has the meaning set forth in Section 3.7.
"LAWS" means any law, statute (including all applicable building, zoning,
subdivision, health and safety and other land use statutes), regulation, rule,
permit, license, certificate, judgment, order, award or other legally binding
decision or requirement of any arbitrator, court, government or governmental
agency or instrumentality (domestic or foreign).
"LEASED EMPLOYEES" has the meaning set forth in the Visteon Salaried
Employee Lease Agreement.
"LOSSES" means any and all losses, liabilities, costs, claims, demands,
damages, fines, penalties and expenses, including reasonable attorneys' fees and
expenses.
"NEW SERVICE" means any service that is (i) not identified in a Statement
of Work during the Term, or (ii) an Excluded Service that, upon mutual agreement
of the Parties and in accordance with Section 3.6, is added to the scope of
Services under this Agreement. Upon such
3
addition, such New Services shall be included in the term "Services" and the
Costs for such New Services shall be determined in accordance with Article V.
"NEW SERVICES REQUEST" has the meaning set forth in Section 3.6(a).
"NOTICE OF NON-COMPLIANCE" has the meaning set forth in Section 4.2.
"PARTICIPATION AGREEMENT" has the meaning set forth in Section 3.3(b).
"PARTICIPATION NOTICE" has the meaning set forth in Section 3.3(c).
"PERSONNEL" means the employees, or if applicable, agents, subcontractors
or representatives of Visteon or its Affiliates or Visteon Third Party Service
Providers who provide any Services under this Agreement.
"PURCHASE AGREEMENT" has the meaning set forth in the Recitals.
"QUALIFYING CAPITAL INVESTMENTS" has the meaning set forth in Section
5.2(a) and Section 5.2(b).
"RELATIONSHIP MANAGER" has the meaning set forth in Section 4.1(b).
"SERVICE" means any service, function, or responsibility either (i)
identified in the Statements of Work attached to this Agreement as of the date
of this Agreement or (ii) identified by ACH on or prior to May 1, 2006 as
reasonably required for the operation of the Business as a going concern, but
excluding Excluded Services. For the avoidance of doubt, Services shall include
New Services that are agreed to by the Parties in writing pursuant to the terms
of this Agreement; provided, however, that the Costs for such New Services shall
be determined in accordance with Article V.
"SERVICE FEES" has the meaning set forth in Section 5.1(c).
"SERVICE LEVEL" has the meaning set forth in Section 3.1(e).
"SERVICE LEVEL EXCLUSION EVENT" has the meaning set forth in Section
3.2(e).
"SERVICE LEVEL SCHEDULE" means a schedule (as may be amended from time to
time in accordance with the terms of this Agreement) attached to a Statement of
Work identifying the Service Level for the applicable Service obtained from
Visteon pursuant to this Agreement.
"SIGNIFICANT EVENT" has the meaning set forth in Section 5.3(b)(iii).
"SOFTWARE" has the meaning ascribed thereto in the Software License and
Contribution Agreement.
"SOFTWARE LICENSE AND CONTRIBUTION AGREEMENT" has the meaning set forth in
the Recitals.
4
"STATEMENT(S) OF WORK" means (a) the Functional Service Area Statement(s)
of Work (as such Statement(s) of Work shall be amended from time to time in
accordance with the terms of this Agreement) and (b) such other statements of
work that Visteon and ACH LLC may enter into from time to time pursuant to the
terms of this Agreement to authorize Visteon to perform Services. For the
avoidance of doubt, except as otherwise expressly provided in this Agreement or
in a Functional Services Area Statement of Work (in effect of the Effective
Date), the terms and conditions of this Agreement shall take precedence over any
Statement of Work.
"TECHNOLOGY CHANGES" has the meaning set forth in Section 8.3(a).
"TERM" means the Initial Term, and if extended in accordance with Section
2.1(b), the Extended Term.
"TERMINATION CHARGES" means all costs, fees and expenses incurred by
Visteon as a result of any early termination or significant reduction in the
Services by ACH, including, without limitation, any termination fees, "kill
fees," stranded costs (direct or indirect), wind-down fees, minimum revenue
commitment shortfall charges, fees or expenses actually incurred by Visteon as a
result of early termination or significant reduction of each such Service,
including those amounts payable to any Visteon Third Party Service Providers.
"ACH BUYER(S)" has the meaning set forth in Section 3.3(a).
"ACH CHANGE NOTICE" has the meaning set forth in Section 3.4(a).
"ACH ELECTION NOTICE" has the meaning set forth in Section 3.2(b).
"VISTEON A TRANSACTION DOCUMENT" has the meaning set forth in the Visteon A
Transaction Agreement dated September 12, 2005 between Ford and Visteon.
"VISTEON B TRANSACTION DOCUMENT" has the meaning set forth in the Purchase
Agreement.
"VISTEON CAPACITY NOTICE" has the meaning set forth in Section 3.2(b).
"VISTEON CHANGE NOTICE" has the meaning set forth in Section 3.2(b).
"VISTEON HOURLY EMPLOYEE LEASE AGREEMENT" means the Visteon Hourly Employee
Lease Agreement dated as of October 1, 2005 by and between Visteon and ACH LLC.
"VISTEON LICENSED SOFTWARE" means Software owned by a third party and
licensed or sublicensed to Visteon or its Affiliates.
"VISTEON OWNED SOFTWARE" means Software owned by Visteon or its Affiliates.
"VISTEON SALARIED EMPLOYEE LEASE AGREEMENT" means the Visteon Salaried
Employee Lease Agreement dated as of October 1, 2005 by and between Visteon and
ACH LLC.
5
"VISTEON THIRD PARTY SERVICE PROVIDER" means any Person (excluding ACH or
an Affiliate thereof) contracting directly or indirectly with Visteon to provide
Equipment, Visteon Licensed Software or services that are used or provided by
Visteon to perform the Services under this Agreement from time to time during
the Term.
ARTICLE II
TERM OF AGREEMENT
2.1 TERM.
(a) The term of this Agreement shall commence on the Effective Date
and will terminate on December 31, 2008 (the "Initial Term"), unless extended or
terminated earlier pursuant to the terms of this Agreement.
(b) Upon not less than ninety (90) days written notice to Visteon
prior to expiration of the Initial Term, ACH shall have a one (1)-time right to
extend the Initial Term by up to twelve (12) months, provided that ACH
acknowledges that the Service Fees set forth herein shall be subject to
increase, as set forth in Section 5.1, during any such extension period (such
extension period, the "Extended Term"). Such extension notice shall indicate the
period, which may not be more than twelve (12) months, by which ACH desires to
extend the Initial Term.
(c) Upon expiration of the Term, Visteon's obligations to provide the
Services shall immediately expire.
ARTICLE III
SERVICES
3.1 SCOPE.
(a) At the Effective Date, Visteon shall provide to ACH the Services
set forth in the applicable Statements of Work at the applicable Service Levels,
and ACH shall make payment to Visteon for the Services provided, in accordance
with the terms, and subject to the conditions, of this Agreement.
(b) This Agreement establishes the standard provisions that will apply
to the provision of Services by Visteon to ACH. The Parties acknowledge and
agree that Visteon has historically provided Services to the Business and that
the Parties have attempted to identify the Services required by ACH as of the
Effective Date in the Functional Service Area Statements of Work. To the extent
that questions arise as to the scope of the Services to be provided hereunder,
the nature of a particular Service, or any other responsibilities of Visteon or
ACH hereunder, the Parties shall be guided by past reasonable practices of
Visteon and the Business.
(c) The scope of the Services to be provided hereunder may be expanded
to provide for New Services only as provided in Section 3.6.
(d) ACH acknowledges and agrees that Visteon has outsourced and
retains the right to outsource significant portions of its own information
technology and other services requirements to various third parties and that any
and all of the Services may be provided
6
directly by Visteon or indirectly through Visteon Third Party Service Providers,
subject to the terms and conditions of this Agreement. Visteon acknowledges and
agrees that, subject to the terms and conditions of this Agreement, ACH shall
not be obligated to receive any Services, in whole or in part, from Visteon or
any Visteon Third Party Service Provider, and that ACH may, in its sole
discretion, elect to receive, in whole or in part, any and all Services from a
third party not affiliated with Visteon or any Visteon Third Party Service
Provider, subject to the terms and conditions of this Agreement.
(e) Except as otherwise mutually agreed by the Parties in a Statement
of Work, Visteon shall provide each Service at a service level that is the
highest of (i) substantially the same manner and at least an equivalent quality
(A) as then currently provided by Visteon for such Service to Visteon's own
business, or (B) in the event that Visteon ceases to use a particular Service,
as provided by Visteon for such Service to Visteon's own business immediately
prior to the time that Visteon ceased using such Service, (ii) the same manner
and quality as provided by Visteon to the Business as of May 24, 2005, and (iii)
the service level set forth in the applicable Statement of Work (such highest
service level, the "Service Level"). The applicable Service Level for each
Statement of Work shall include the implementation of, and adherence to, by
Visteon or a Visteon Third Party Service Provider, as appropriate, effective
internal controls governing the Services provided. For purposes of this Section
3.1(e), "effective internal controls" shall be defined as at least the same
level of internal controls that Visteon applies to its own business supplemented
by internal control reviews by ACH and Ford as needed. The Parties agree that
Visteon's performance of Services at a level at or above the applicable Service
Level shall be a satisfactory level of performance of such Services. For the
avoidance of doubt and except as otherwise mutually agreed by the Parties, the
manner of providing a Service shall include, without limitation, the timing,
method of delivery, and similar details relating to the provision of the
Service; and further, Visteon shall respond with the same level of urgency to
any threatened or actual disruption of the Services to ACH as it would respond
to a similar threatened or actual disruption within Visteon's own internal
operations.
(f) In order to optimize the financial and operational efficiency of
providing Services to ACH's subsidiaries located in Mexico, the Parties agree to
negotiate in good faith within a reasonable time after the date of this
Agreement, on terms and conditions mutually agreeable to the Parties, (i) to
implement the applicable provisions of this Agreement in order to provide for
the provision of Services by a Mexican subsidiary of Visteon to ACH's
subsidiaries located in Mexico, and (ii) to amend the Statements of Work under
this Agreement as may be required in connection with such implementation of this
Agreement.
3.2 LIMITATIONS AND EXCLUSIONS.
(a) Visteon's obligation to provide the Services is subject to: (i)
any limitations imposed by applicable Laws; and (ii) the limitations expressly
set forth in this Agreement including, without limitation, in this Section 3.2.
(b) In the event that (i) Visteon receives notice from a Visteon Third
Party Services Provider or otherwise becomes aware of an impending material
change in the Services provided by such Visteon Third Party Service Provider to
Visteon, including, but not limited to, the expiration, termination or
renegotiation of any contract, any impending increase or decrease
7
in costs or Service Levels, or any other change that is reasonably likely to
materially affect any Service(s) provided by Visteon to ACH hereunder, or (ii)
Visteon becomes aware of or determines to pass through to ACH any proportional
material change in the Cost of any Service, Visteon shall, within a reasonable
time after receiving such notice, provide ACH with written notice of such
material change (such notice, a "Visteon Change Notice"). The Visteon Change
Notice shall include a description in reasonable detail of the material change.
Visteon agrees to consult with ACH at the request of ACH with respect to any
such material change. Within a reasonable time after the receipt of a Visteon
Change Notice, ACH shall notify Visteon of whether ACH desires to continue to
receive the affected Service(s) or whether ACH desires to terminate the affected
Service(s) in accordance with Section 6.2(b) of this Agreement (such notice, a
"ACH Election Notice"). If, notwithstanding the material change described in the
Visteon Change Notice, ACH elects in the ACH Election Notice to continue to
receive the affected Service(s) in accordance with the terms of this Agreement,
Visteon shall use commercially reasonable efforts to continue to provide or
procure such Service(s) in accordance with the terms of this Agreement on behalf
of ACH, it being understood by the Parties that any such continued provision or
procuring of the Service(s) by Visteon shall continue to occur in accordance
with Article V. Within a reasonable time after receipt of the ACH Election
Notice, Visteon shall determine in good faith whether it is able through the use
of commercially reasonable efforts (as defined in Section 3.6(b)) to continue to
provide or procure such Service(s) and shall notify ACH of such determination
(such notice, a "Visteon Capacity Notice"). In the event that Visteon determines
in good faith that, despite the use of commercially reasonable efforts, it is
unable to continue to provide or procure such Service(s) in accordance with the
terms of this Agreement, Visteon shall explain in reasonable detail in the
Visteon Capacity Notice the reasons for Visteon's inability to continue to
provide or procure such Service(s) and shall cooperate in good faith with ACH to
identify and facilitate (by providing reasonable access to its personnel,
facilities, equipment or otherwise) an alternative means of obtaining such
Service(s). If ACH wishes to dispute Visteon's inability to provide or procure
such Service(s), then the Parties shall make use of the provisions of Article IV
hereof to resolve any such dispute.
(c) Under this Agreement, the provision of the Services shall be
subject in all respects to (i) such policies, procedures, methodologies of
Visteon and (ii) other matters that may be mutually agreed to by Visteon and
Visteon Third Party Service Providers on or after the Effective Date, provided
that Visteon or such Visteon Third Party Service Providers, as the case may be,
continue to meet the requirements set forth in this Agreement and the applicable
Statement(s) of Work or Service Level Schedule.
(d) ACH shall use the Services for its own internal business purposes
only and solely to support the Business or a portion thereof, and will not act
as a commercial reseller of, or service desk with respect to, all or any portion
of the Services to third party entities, provided, however, that upon reasonable
advance written notice to Visteon and subject to applicable Law, limitations
contained in agreements between Visteon and Visteon Third Party Service
Providers, and Section 3.9, ACH shall have the right in its sole discretion to
resell all or any portion of the Services to Ford or to ACH Buyers in accordance
with Section 3.3 and without ▇▇▇▇-up.
(e) Visteon shall not be liable for any failure to meet any applicable
Service Level to the extent Visteon is unable to meet such Service Level(s) (i)
due to the acts, errors or omissions of ACH or any third party that is not a
Visteon Third Party Service Provider; (ii) with
8
respect to equipment or software provided by ACH and used by Visteon with
respect to the Services, due to any failure of ACH to secure the access rights
or maintenance and support services from the vendor of such equipment or
software necessary for Visteon to provide such Services, or (iii) because ACH
declines to make a Qualifying Capital Investment in accordance with Section 5.2
below, provided that Visteon has previously notified ACH in writing that the
implementation of such request or refusal to make such Qualifying Capital
Investment would result in such failure to meet the applicable Service Level
(each a "Service Level Exclusion Event"). Notwithstanding the preceding
sentence, in the event of any such failure, Visteon shall use commercially
reasonable efforts to mitigate the effects thereof. Visteon shall not be excused
from the performance of its obligations under this Agreement by the failure
under any agreement between Visteon and a Third Party Service Provider of either
Visteon or such Visteon Third Party Service Provider to perform its respective
obligations under such agreement.
3.3 PROVISION OF SERVICES TO ACH BUYERS AND TO FORD.
(a) If, during the Term, a third party purchaser of a line of business
or all or substantially all of the business conducted at any Plant(s) (a "ACH
Buyer") requests Visteon to provide any or all of the Services then being
provided by Visteon to ACH under this Agreement, then Visteon shall provide
Services to such ACH Buyer for a period not to exceed twenty-four (24) months
after completion of a sale of such business by ACH to such ACH Buyer. Visteon's
obligation to provide any Services to a ACH Buyer that are provided to Visteon
by Visteon Third Party Service Providers is subject to (i) the terms and
conditions set forth in this Agreement and the Statements of Work and (ii) the
satisfaction by ACH Buyer of the conditions set forth in Section 3.3(b) below.
(b) For a ACH Buyer to receive Services under this Agreement, such ACH
Buyer shall enter into a written agreement with Visteon substantially in the
form attached hereto as Exhibit A, together with such other commercial terms and
conditions as Visteon and the ACH Buyer may agree (each such agreement, a
"Participation Agreement"). Visteon shall negotiate with any such ACH Buyer in
good faith and in a commercially reasonable and expeditious manner. Each
Participation Agreement shall be a separate contract between the parties
thereto. Each ACH Buyer shall have the right to receive all Services being
received by ACH at the time that such ACH Buyer and Visteon enter into the
applicable Participation Agreement (the "Applicable Date"), and the terms and
conditions of this Agreement that reasonably apply to such ACH Buyer and the
particular Services desired by such ACH Buyer shall be incorporated into each
Participation Agreement and shall remain in full force and effect during the
term of such Participation Agreement, as such terms and conditions may be
amended, either at the Applicable Date or thereafter, by mutual agreement of
Visteon and such ACH Buyer. In the event that a ACH Buyer requests that Visteon
provide New Services or Excluded Services (determined as of the Applicable Date)
to such ACH Buyer, Visteon shall determine in its sole discretion whether to
provide such New Services or Excluded Services.
(c) No later than five (5) days after entering into a Participation
Agreement with a ACH Buyer, Visteon shall provide written notice thereof to ACH
(such notice, a "Participation Notice"). Each Participation Notice shall include
a copy of the executed version of the applicable Participation Agreement and any
schedules of work or service level schedules thereto, subject to any applicable
confidentiality requirements. Notwithstanding any provision in
9
Section 6.2 of this Agreement to the contrary, upon receipt of a Participation
Notice, ACH shall have the right to terminate any and all Service(s) with
respect to the Plants to be acquired from ACH by the applicable ACH Buyer,
effective immediately upon the effective date of the applicable Participation
Agreement, as set forth in Section 6.2(c).
(d) If, during the Term (including the Extended Term, if applicable),
Ford requests Visteon to provide with respect to any Plant(s) that may be
subsequently transferred to Ford or any Affiliate any of the Services then being
provided by Visteon to ACH under this Agreement, Visteon shall provide such
Services to Ford in accordance with Section 5.1(a). Visteon's obligation to
provide any Services to Ford that are provided to Visteon by Visteon Third Party
Service Providers is subject to the terms and conditions set forth in this
Agreement and the applicable Statements of Work. For Ford to receive Services
under this Agreement, Ford shall enter into a written agreement with Visteon in
such form as Ford and Visteon may agree. At such time as Ford and Visteon enter
into such agreement, the terms and conditions of this Agreement that reasonably
apply to Ford and the particular Services desired by Ford shall be incorporated
into such agreement and shall remain in full force and effect during the term of
such agreement, as such terms and conditions may be amended, either at such time
as Visteon and Ford enter into such agreement or thereafter, by mutual agreement
of Visteon and Ford. Notwithstanding the preceding sentence, in no event shall
Ford be eligible to receive Excluded Services (determined as of the effective
date of such agreement), unless otherwise mutually agreed by Visteon and Ford.
3.4 MATERIAL CHANGE IN VOLUME OR PRIORITY OF SERVICES.
(a) If, at any time during the Term of this Agreement, ACH determines
to make a material increase or decrease in the volume or a materially different
priority of any Service being provided to ACH, ACH shall submit to Visteon
reasonable advance written notice requesting a material increase or decrease in
the volume or a materially different priority of any Service being provided to
ACH as of the date of the request (such request, a "ACH Change Notice"). In the
event that there is a ACH Change Notice resulting in a material decrease in the
consumption of Services and which results in Costs incurred by Visteon after the
material decrease of Service that cannot be offset, avoided or mitigated by
Visteon, Visteon shall provide written notice thereof to ACH and ACH agrees to
continue paying its proportional share of such Costs for ninety (90) days from
the date of the ACH Change Notice. For any such Costs that Visteon continues to
incur after such ninety (90) days, the Parties acknowledge that Visteon shall be
entitled to reimbursement thereof pursuant to the terms of the Escrow Agreement.
The ACH Change Notice shall include a description in reasonable detail of the
material increase or decrease in volume or material difference in priority, and,
upon the written request of Visteon, within a reasonable period of time
following receipt of such request, ACH shall submit to Visteon any additional
information reasonably required by Visteon to evaluate such request. Visteon
shall use commercially reasonable efforts to accommodate any such request, it
being understood by the Parties that any such accommodation shall occur in
accordance with Article V. Within a reasonable period of time following receipt
of the ACH Change Notice, Visteon shall determine in good faith whether it is
able through the use of commercially reasonable efforts to accommodate the
request and shall provide ACH with a Capacity Notice.
10
(b) In the event that Visteon determines that, through the use of
commercially reasonable efforts, it is able to accommodate the request in the
ACH Change Notice, Visteon shall set forth in reasonable detail in the Capacity
Notice an estimated schedule for such accommodation and the estimated Cost.
Within a reasonable time after receiving the Capacity Notice, ACH shall provide
Visteon with a ACH Election Notice indicating whether ACH elects to (i) receive
the affected Service(s) on the terms set forth in the Capacity Notice, (ii)
continue to receive the affected Service(s) without the requested increase or
decrease in volume or different priority, or (iii) terminate the affected
Service(s) in accordance with Article VI of this Agreement.
(c) In the event that Visteon determines in good faith that, despite
the use of commercially reasonable efforts, it is unable to accommodate the
request in the ACH Change Notice, Visteon shall explain in reasonable detail in
the Capacity Notice the reasons for Visteon's inability to accommodate the
request. Within a reasonable time after receiving the Capacity Notice, ACH shall
provide Visteon with a ACH Election Notice indicating whether ACH elects to (i)
continue to receive the applicable Service(s) without the requested increase or
decrease in volume or different priority, or (ii) terminate the affected
Service(s) in accordance with Article VI of this Agreement.
(d) If ACH wishes to dispute Visteon's inability to accommodate any
request under this Section 3.4, then the Parties shall make use of the
provisions of Section 4.1 to resolve any such dispute.
3.5 MANAGEMENT AND CONTROL OF THE SERVICES.
(a) The management of and control over the provision of the Services
(including, without limitation, the determination or designation at any time of
the Equipment, employees and other resources of Visteon to be used in connection
with the provision of the Services) shall reside solely with Visteon. Subject to
Sections 3.1(e) and 3.2(b), Visteon shall have the right in its sole discretion
to modify or change the methods of operation and delivery of the Services,
including the right in its sole discretion to use a new or different Visteon
Third Party Service Provider to provide a particular Service, provided that
Visteon continues to fulfill its obligations under this Agreement.
(b) Visteon shall provide to ACH at least seven (7) days prior written
notice of the proposed date of any scheduled outage affecting the delivery of
the Services and shall cooperate with ACH in determining the exact date and time
during which such a scheduled outage shall occur, taking into account any
scheduled events at ACH that would be disrupted by such an outage; provided,
that in the event that an outage of any Visteon operating system is required to
perform any emergency maintenance work, Visteon shall provide ACH with as much
prior notice of such an outage as is reasonably practicable in the
circumstances. All changes to or outages of any Visteon operating system shall
be conducted in accordance with Visteon's standard policies and procedures.
11
3.6 NEW SERVICES.
(a) In the event that ACH wishes to obtain New Services during the
Term, ACH may request in writing that Visteon provide New Services (a "New
Services Request"), pursuant to a validly executed amendment to a Statement of
Work or a new Statement of Work in accordance with this Section 3.6.
(b) Visteon shall use commercially reasonable efforts to accommodate
any such New Services Request from ACH. For purposes of this Section 3.6,
accommodating a New Services Request shall be deemed commercially reasonable if,
notwithstanding any plan, policy or practice of Visteon to reduce the scope,
level and/or volume of services provided to the Business prior to the Closing,
such New Services Request is a request for any New Services that are reasonably
required for the operation of the Business as a going concern. New Services
shall be deemed reasonably required for the operation of the Business as a going
concern if a reasonable business person would expect ACH to receive or otherwise
enjoy the benefits thereof, or of substantially similar services, in the
ordinary course as a going concern in the automotive supply businesses in which
ACH is active at the time of such New Services Request. Upon the written request
of Visteon, within a reasonable period of time following receipt of such
request, ACH shall submit to Visteon any information reasonably required by
Visteon to evaluate such New Services Request. Within a reasonable time after
receiving the New Services Request, Visteon shall determine in good faith
whether it is able through the use of commercially reasonable efforts to
accommodate the request and shall provide ACH with a Capacity Notice, it being
understood by the Parties that any such accommodation shall occur in accordance
with Article V.
(c) In the event that Visteon determines that, through the use of
commercially reasonable efforts, it is able to accommodate the New Services
Request, Visteon shall set forth in the Capacity Notice a written description of
and a schedule for commencing the New Services. Visteon and ACH shall negotiate
in good faith to agree upon an amendment to a Functional Services Area Statement
of Work or a new Statement of Work describing the work Visteon is to perform in
connection with such New Services and the Cost of such New Services. No
amendment to a Functional Services Area Statement of Work or new Statement of
Work for such New Services will become effective until it has been executed by
an authorized representative of each of Visteon and ACH. Within a reasonable
time after receiving the Capacity Notice, ACH shall provide Visteon with a ACH
Election Notice indicating whether ACH elects to receive the New Service(s) on
the terms set forth in the Capacity Notice.
(d) If ACH elects to receive the New Service(s) on the terms set forth
in the Capacity Notice, and the Parties agree upon and execute an amendment to a
Functional Services Area Statement of Work or a new Statement of Work, as
applicable, Visteon will perform the New Services in accordance with the
provisions of this Agreement. Upon execution by Visteon and ACH of an amendment
to a Functional Services Area Statement of Work or a new Statement of Work for
the New Services, the scope of the Services to be provided by Visteon to ACH
will be expanded accordingly to include such New Services. Notwithstanding the
preceding sentence, for the avoidance of doubt, the expansion of the scope of
the Services to include the requested New Services pursuant to this Section 3.6
shall not expand the scope of the Services
12
then provided by Visteon to any ACH Buyer under any Participation Agreement
previously executed between Visteon and such ACH Buyer.
(e) In the event that Visteon determines in good faith that, despite
the use of commercially reasonable efforts, it is unable to accommodate the New
Services Request, Visteon shall explain in reasonable detail the reasons for
Visteon's inability to accommodate the request. If ACH wishes to dispute
Visteon's inability to accommodate the request, then the Parties shall make use
of the provisions of Article IV hereof to resolve any such dispute.
3.7 INITIAL IT TRANSITION SERVICES.
On a one-time basis and as part of the Services, Visteon shall provide
to ACH certain initial information technology related transition Services as
identified on Exhibit C ("Initial IT Transition Services"), the cost of which
shall be shared equally by Visteon and ACH.
3.8 MUTUAL OBLIGATIONS.
(a) In addition to the other obligations of the Parties set forth in
this Agreement, each Party will promptly provide all information and materials
reasonably required for, and will take such other actions as are reasonably
necessary to assist or enable, the other Party to perform its obligations under
this Agreement. In performing their obligations under this Agreement, each Party
agrees and understands that such Party's performance of its obligations is
necessary to enable the other Party to perform its obligations. Accordingly,
each Party agrees that if it does not perform its obligations under this
Agreement and such non-performance affects the other Party's ability to perform
its obligations, the other Party shall not be considered in default or breach
under this Agreement to the extent its failure to perform is caused by such
Party's non-performance.
(b) Each Party acknowledges and agrees that their respective
obligations under this Agreement will be governed by the fundamental principle
of good faith and fair dealing and that each Party will take all commercially
reasonable actions to mitigate costs or expenses to be incurred by the other
Party in connection with the provision or receipt of the Services hereunder.
3.9 CONSENTS.
(a) This Agreement shall not constitute an agreement to provide any
Service if provision of such Service, without the consent of a third party
thereto, would constitute a breach or other contravention of an agreement
between Visteon and any third party. Visteon shall use its best efforts to
obtain the consent of any third parties to the provision of any and all Services
hereunder to ACH, any ACH Buyer or Ford, as applicable, prior to the
commencement of the applicable Service; provided, that ACH shall cooperate with
Visteon to the extent reasonably required of ACH in order to obtain any such
consents, and provided further, that, except as set forth in this Section 3.9 of
this Agreement, such efforts shall not require Visteon or ACH to incur any
material expenses or Liabilities or provide any material financial accommodation
or to provide a guarantee to obtain any such consent (provided that Visteon
agrees to accept a consent notwithstanding that it does not include a release).
If such consent is not, or has not been as of the commencement of the applicable
Service, obtained, or if the
13
attempted provision of such Service(s) would adversely affect the rights of
Visteon under an agreement between Visteon and a third party so that ACH would
not in fact receive all such Services or would incur a Liability, until such
consent is obtained (whereupon such Service(s), to the extent still required by
ACH, shall be promptly provided by Visteon to ACH or the applicable Subsidiary
of ACH pursuant to the applicable provisions of this Agreement), Visteon and ACH
will cooperate in a mutually agreeable arrangement under which ACH would obtain
the benefits and assume the obligations thereunder, including making any
required payments for Services thereunder, in accordance with this Agreement,
including sub-contracting, sub-licensing, or sub-leasing to ACH, or under which
Visteon would enforce for the benefit of ACH the applicable agreement with such
third party and any claim, right or benefit arising thereunder.
(b) To the extent that any consents, permissions or waivers that are
required for Visteon to perform any Service(s) pursuant to this Agreement have
not been obtained by Visteon as of the date of this Agreement, or any
infringement of any intellectual property rights of any third party is caused
thereby, Visteon shall be responsible, at its sole cost and expense, for any
added costs or expenses caused thereby or necessary to clear and resolve such
infringement, other than such costs or expenses as are required to be paid by
Visteon pursuant to Section 7.04 of the Software License and Contribution
Agreement.
ARTICLE IV
DISPUTES AND DISPUTE RESOLUTION
4.1 DISPUTES.
(a) The Parties shall resolve all disputes, controversies or claims of
any kind or nature arising under or in connection with this Agreement or any
Statement of Work, including disputes as to the creation, validity,
interpretation, breach or termination of this Agreement or any Statement of Work
(other than those matters that are the subject of a Notice of Non-Compliance,
which matters shall be addressed as provided in Section 4.2 below) (a "Dispute")
informally to the maximum extent possible. Except as expressly provided in this
Agreement or in a Functional Service Area Statement of Work as in effect as of
the Effective Date, the terms and conditions of this Agreement shall take
precedence over any Statement of Work.
(b) Promptly after the date of this Agreement, each Party shall
designate, and shall notify the other Party of such designation, a
representative for communicating with the other Party regarding the duties and
obligations of the Parties under each separate Statement of Work entered into
pursuant to this Agreement (each such representative, a "Relationship Manager").
The Relationship Managers of Visteon and ACH shall act as the principal points
of contact between the Parties for all matters relating to the day-to-day
provision of the Services provided pursuant to a Statement of Work, and shall
meet as often as may be reasonably necessary in connection therewith. The
Parties agree that the Relationship Managers shall initially negotiate all
Disputes and other matters of joint concern in good faith, with the intention of
resolving issues between them in a mutually satisfactory manner. Either Party
may change its Relationship Manager(s) by notice to the other Party pursuant to
Section 15.1 of this Agreement.
14
(c) Promptly after the date of this Agreement, each Party shall
designate, and shall notify the other Party of such designation, one or more
senior business executives ("Designated Executives") for purposes of this
Section 4.1. The Relationship Managers of each Party shall report to the
Designated Executives on a regular basis with respect to issues and concerns
arising out of the provision and receipt of the Services under this Agreement.
The Designated Executives of each Party shall meet from time to time during the
Term, as the Parties agree to be reasonably necessary. The Parties agree that,
if a Dispute cannot be resolved in a mutually satisfactory manner within thirty
(30) days by the Relationship Managers pursuant to Section 4.1(b) or Section
4.2, the Dispute may be submitted to the Parties' Designated Executives, who
shall negotiate in good faith with the intention of resolving any such dispute
in a mutually satisfactory manner. If the Dispute cannot be resolved in a
mutually satisfactory manner by the Designated Executives within thirty (30)
days of such submission, the Dispute may be submitted to dispute resolution in
accordance with Section 4.3 below.
(d) Only Disputes within the scope of this Agreement are subject to
this Article. Nothing in this Section 4.1 shall preclude the Parties from
exercising their termination rights under this Agreement. The cost of internal
dispute resolution shall be shared equally by the Parties. Each Party shall bear
its own attorneys' fees. The Parties agree all statements or offers of
settlement made in connection with internal dispute resolution efforts under
this Article IV shall not be considered admissions or statements against
interest by either Party. The Parties further agree that they will not attempt
to introduce such statements or offers of settlement at any later trial,
arbitration, or mediation between the Parties.
4.2 NOTICE OF NON-COMPLIANCE.
In the event that ACH is dissatisfied with the level or quality of any
Service provided under this Agreement or otherwise believes that Visteon is not
be in full compliance with its obligations under this Agreement, ACH shall
provide prompt written notice thereof (a "Notice of Non-Compliance") to Visteon,
setting forth in reasonable detail the basis for ACH's belief as well as ACH's
view of the actions that should be taken by ACH to remedy the alleged
non-compliance. The Parties shall negotiate in good faith to address the alleged
deficiency or non-compliance in a commercially reasonable manner. If the dispute
cannot be resolved in a mutually satisfactory manner within thirty (30) days
after receipt of such Notice of Non-Compliance, the dispute shall be submitted
to the Relationship Managers of Visteon and ACH for the applicable Service. The
Relationship Managers shall review the facts surrounding the claim made in the
Notice of Non-Compliance, make such investigation as they may deem necessary for
purposes of verification of the facts and work in good faith to develop a plan
to resolve the claim made in the Notice of Non-Compliance. Upon the
determination of the Relationship Managers that the claim made in the Notice of
Non-Compliance was valid, the Relationship Managers shall agree in writing on a
plan for the resolution of such claim and Visteon shall promptly take action as
required thereunder. Pending any such final determination, Visteon shall
continue to provide all Services hereunder without interruption. ACH shall not
be entitled to deliver another Non-Compliance Notice or pursue other remedies
with respect to the same matter so long as Visteon complies in all material
respects with the terms of such resolution plan. If the Relationship Managers
cannot agree upon such a determination or on a resolution plan, the Parties
shall submit the issue to the Designated Executives as a Dispute in accordance
with Section 4.1(c) above.
15
4.3 DISPUTE RESOLUTION.
If a Dispute arises between the Parties relating to this Agreement
that the Parties have otherwise been unable to resolve pursuant to this Article
IV, the following shall be the sole and exclusive procedure for enforcing the
terms hereof and for seeking relief, including but not limited to damages,
injunctive relief and specific performance:
(a) The Parties promptly shall hold a meeting of executives with
decision-making authority who are senior to the Designated Executives to attempt
in good faith to negotiate a mutually satisfactory resolution of the Dispute;
provided that no Party shall be under any obligation whatsoever to reach, accept
or agree to any such resolution; provided further, that no such meeting shall be
deemed to vitiate or reduce the obligations and liabilities of the Parties or be
deemed a waiver by a Party hereto of any remedies to which such Party would
otherwise be entitled.
(b) If the Parties are unable to negotiate a mutually satisfactory
resolution as provided above, then upon request by either party, the Dispute
shall be submitted to binding arbitration before a sole arbitrator in accordance
with the CPR Rules, including discovery rules, for Non-Administered Arbitration.
Within five Business Days after the selection of the arbitrator, each Party
shall submit its requested relief to the other Party and to the arbitrator with
a view toward settling the matter prior to commencement of discovery. If no
settlement is reached, then discovery shall proceed. Upon the conclusion of
discovery, each Party shall again submit to the arbitrator its requested relief
(which may be modified from the initial submission) and the arbitrator shall
select only the entire requested relief submitted by one Party or the other, as
the arbitrator deems most appropriate. The arbitrator shall not select one
Party's requested relief as to certain claims or counterclaims and the other
Party's requested relief as to other claims or counterclaims. Rather, the
arbitrator must only select one or the other Party's entire requested relief on
all of the asserted claims and counterclaims, and the arbitrator shall enter a
final ruling that adopts in whole such requested relief. The arbitrator shall
limit his/her final ruling to selecting the entire requested relief he/she
considers the most appropriate from the requests submitted by the Parties.
(c) Arbitration shall take place in the City of Dearborn, Michigan
unless the Parties agree otherwise or the arbitrator selected by the Parties
orders otherwise. Punitive or exemplary damages shall not be awarded. This
Section 4.3 is subject to the Federal Arbitration Act, 28 U.S.C.A. Section 1, et
seq., or comparable legislation in non-U.S. jurisdictions, and judgment upon the
award rendered by the arbitrator may be entered by any court having
jurisdiction.
ARTICLE V
CHARGES AND PAYMENTS
5.1 FEES FOR SERVICES.
(a) During the Initial Term, the Services shall be provided to ACH at
Visteon's Cost as defined below. During any Extended Term, Services shall be
provided to ACH at Visteon's Cost plus a 5% ▇▇▇▇-up. Subject to Section 3.6 of
this Agreement, all New
16
Services to be added to the scope of the Services during the Term shall be
provided to ACH as follows:
(i) New Services resulting from statutory, regulatory or other
legal requirements that affect ACH shall be provided to ACH at
Visteon's Cost;
(ii) New Services to support due diligence and other activities
relating to the sale of all or substantially all of the business
conducted at any Plant(s) ("Sell-Side Activities") shall be provided
to ACH at Visteon's Cost. All Sell-Side Activities are set forth on
Exhibit D attached hereto. The Parties acknowledge and agree that ACH
shall not be obligated to request New Services relating to Sell-Side
Activities from Visteon or any Visteon Third Party Service Provider,
and that ACH may, in its sole discretion, elect to receive, in whole
or in part, any and all New Services relating to Sell-Side Activities
directly from a third party service provider not affiliated with
Visteon or any Visteon Third Party Service Provider;
(iii) New Services that were Excluded Services shall be provided
to ACH at a price to be negotiated between Visteon and ACH; and
(iv) all New Services other than as set forth in Section
5.1(a)(i), 5.1(a)(ii) and 5.1(a)(iii) of this Agreement shall be
provided to ACH (A) if requested during the first eighteen (18) months
of the Term of this Agreement, at Visteon's Cost during the Term, and
(B) if requested after the first eighteen (18) months of the Term of
this Agreement, at a price to be negotiated between Visteon and ACH,
provided, that, where the annual cost or project cost is less than
$100,000, such negotiated price shall be Visteon's Cost plus a 5%
▇▇▇▇-up. Visteon and ACH agree to negotiate prices expeditiously, in
good faith and on commercially reasonable terms.
(b) For Businesses that are sold by ACH during the Term to ACH Buyers
who qualify as ACH Buyers hereunder, Services will be provided by Visteon for up
to twenty-four (24) months after each such sale, as requested by a ACH Buyer, on
the following terms:
Term Price
---- -----
9 months post-sale Cost + 5%
10 - 15 months post-sale Cost + 8%
16 months and beyond post sale Cost + 12%
In the event that a ACH Buyer requests New Services during such
24-month post-sale period, such New Services, subject to Section 3.3(b), shall
be provided (i) if directly by Visteon to such ACH Buyer, at a price to be
negotiated between Visteon and such ACH Buyer, and (ii) if indirectly by Visteon
through ACH, pursuant to Section 5.1(a) of this Agreement.
(c) All of the foregoing, together with all costs and expenses
otherwise payable by ACH to Visteon under this Agreement, collectively
constitute the "Service Fees". All Service Fees shall be invoiced and paid
according to Section 5.3. For the avoidance of doubt, ACH shall not be liable
for any Service Fees owed to Visteon by any ACH Buyer.
17
(d) For purposes of this Agreement, the term "Cost" means the fully
accounted costs including a reasonable allocation for internal overhead costs
(excluding certain corporate staffs and overhead) as well as any direct costs
for outside suppliers.
(i) For the avoidance of doubt, the term Cost includes, without
limitation, any (1) mutually agreed retention programs instituted by
Visteon in order to insure performance of such services to ACH and to
Visteon; (2) depreciation for any asset shared by Visteon and ACH in
the course of providing or receiving Services under this Agreement,
but only to the extent that such asset is (i) directly related to the
provision of Services and (ii) set forth individually, and under a
grouping by business function, on a schedule provided by Visteon to
ACH on or before December 15, 2005; (3) for the first twenty-seven
(27) months after the Effective Date, a fee of Twelve Million Dollars
($12,000,000) per calendar year for certain administrative services
and business office management which are deemed to be part of the
Services (the "Business Management Offices Charge"), which shall be
invoiced to ACH and paid in equal monthly installments.
(ii) For the avoidance of doubt, the term Cost shall not include:
(1) any amount for which Visteon is entitled to reimbursement pursuant
to the terms of the Escrow Agreement; (2) any taxes, which shall be
reimbursed as set forth in Section 5.5 of this Agreement; (3) any
penalties, late fees, costs or expenses of any kind, arising from any
failure to perform or other breach by Visteon of any obligation under
this Agreement or any other agreement relating to the Services; (4)
fiduciary insurance premium increases greater than Ford's
year-over-year rate of increase determined on a per capita basis; and
(5) any Consent Expenses (as defined in the Software License and
Contribution Agreement).
(iii) For the avoidance of doubt, with respect to shared
personnel that are Visteon employees or agency personnel of Visteon,
Costs shall be calculated in accordance with the methods set forth for
salaried Visteon personnel leased to ACH in Sections 4.01 through 4.03
of the Visteon Salaried Employee Lease Agreement.
5.2 CAPITAL INVESTMENTS.
(a) Subject to the provisions of this Section 5.2, Visteon shall have
the right but not the obligation to make such capital investments as it deems
reasonably necessary to support provision of the Services to ACH ("Qualifying
Capital Investments"). Visteon shall provide advance written notice to ACH,
including a description in reasonable detail of the nature and estimated amount
of the cost, of any such Qualifying Capital Investments that Visteon proposes to
make (each such notice a "Capital Investment Notice").
(b) ACH shall have the right but not the obligation to request such
capital investments as it deems reasonably necessary to support provision of the
Services to ACH ("Qualifying Capital Investments"). Visteon shall use
commercially reasonable efforts to accommodate Qualifying Capital Investments
requested by ACH.
18
(c) Notwithstanding Section 5.2(a), ACH shall have the right in its
sole discretion to accept or reject participation in any and all Qualifying
Capital Investments proposed by Visteon. Within a reasonable time after
receiving a Capital Investment Notice, ACH shall provide notice to Visteon of
its acceptance or rejection of participation in the proposed Qualifying Capital
Investment. ACH acknowledges that its rejection of participation in a proposed
Qualifying Capital Investment may constitute a Service Level Exclusion Event.
(d) In the event that ACH elects to accept participation in a
Qualifying Capital Investment proposed by Visteon,
(i) where the Qualifying Capital Investment relates exclusively
to the provision of Service(s) to ACH, ACH shall, subject to Visteon's
contractual obligations with Visteon Third Party Service Providers,
purchase and acquire title to, depreciate and amortize, the asset
funded by such Qualifying Capital Investment; and
(ii) where the Qualifying Capital Investment relates to the
provision of Service(s) that are shared by Visteon and ACH, (A)
Visteon shall pay for the entire purchase price of, and acquire title
to, the asset funded by such Qualifying Capital Investment, and (B)
Visteon shall include as a pass-through expense in Visteon's Cost for
the affected Service(s) an amount equivalent to the amount of
Visteon's depreciation/amortization and Visteon's (I) expenses to
operate and maintain the asset, and/or (II) reductions in Visteon's
Cost resulting from the Qualifying Capital Investment, in each case in
proportion to ACH's use of such asset for the duration of such use. In
the event that ACH terminates the applicable Service(s) before the
asset funded by such Qualifying Capital Investment is fully
depreciated/amortized, Visteon and ACH shall cooperate to mitigate any
stranded costs associated with such asset.
(e) In the event that ACH elects to reject participation in a
Qualifying Capital Investment proposed by Visteon, ACH shall not be required to
reimburse Visteon for any portion of the purchase price of the asset or to pay
any amount relating thereto as a pass through expense included in Visteon's Cost
(including depreciation, amortization and other expenses), without regard to
whether such Qualifying Capital Investment relates to Services that are provided
exclusively to ACH or shared by ACH and Visteon. ACH acknowledges that its
rejection of participation in a proposed Qualifying Capital Investment may
constitute a Service Level Exclusion Event.
5.3 PAYMENT.
(a) All Service Fees, unless specifically otherwise addressed in a
Statement of Work, shall be calculated, invoiced and paid in accordance with
this Section 5.3. The initial invoicing and payment process shall be as follows;
provided, however, that within (6) months of the Effective Date, the Parties
agree that they will cooperate in good faith to develop and implement, if
necessary, any mutually agreeable revisions to the billing and payment process
set forth in this Section 5.3.
19
(i) On or about the 13th day of the month Visteon shall provide
ACH with:
(1) a calculation of actual Service Fees incurred on behalf
of ACH in the previous month (and reasonably sufficient
supporting detail to enable ACH to analyze its Cost);
(2) a calculation of any over or under payment made by ACH
in the previous month; and
(3) an estimated monthly Service Fee ("Estimated Monthly
Service Fee") for the then current month. The Estimated Monthly
Service Fee will contain a reasonably detailed itemization of the
categories and corresponding estimated Costs allocable to ACH.
(ii) Within two (2) Business Days of Visteon's delivery of the
materials in Section 5.3(a)(i), the Parties will work collaboratively
to review the information in Section 5.3(a)(i) and develop (A) a
summary of any errors in or required adjustments to the actual amounts
from the previous month and (B) any changes which should be reflected
in the Estimated Monthly Service Fee for the then current month.
(iii) On the next Business Day following the completion of the
two Business Day period referred to in clause (ii) immediately above,
Visteon will provide an invoice to ACH reflecting (A) the Estimated
Monthly Service Fee, including any changes resulting from the efforts
described in Section 5.3(ii)(B) above; (B) the amount of any
over-payment or under-payment made by ACH in the previous month
reflecting any adjustments from Section 5.3(a)(ii) above and (C) the
net payment due calculated as the sum of items (A) and (B) of this
Section 5.3(a)(iii).
(iv) Invoices are due and payable by ACH within two (2) Business
Days of receipt. Payments will be made by wire transfer to an account
designated by Visteon or other method acceptable to Visteon.
(b) As of the Effective Date, with respect to Cost items that are
allocated partially to ACH and partially to Visteon in calculating the
applicable Service Fee, such Cost items shall be allocated using the fixed
ratios (e.g., based on North America revenue, North America salaried employee
headcount, global employee headcount, etc.) set forth in the Statements of Work
or otherwise identified in attachments or in Cost Schedule 1, Cost Schedule 2,
or Cost Schedule 3 to the Statements of Work and, such ratios shall be applied
and adjusted as agreed to by the Parties in accordance with the following
principles (each, a "Fixed Allocation Ratio"):
(i) The initial Fixed Allocation Ratios identified in each line
item of a Statement of Work or the applicable schedules to such
Statement of Work shall be applied to calculate the Cost to be charged
to ACH with respect to such line item;
20
(ii) Fixed Allocation Ratios shall be adjusted as on a quarterly
basis in the following manner: Commencing in the first quarter of
2006, during the second month of each calendar quarter, Visteon shall
recalculate the Fixed Allocation Ratios and submit the recalculations
to ACH for its review for accuracy. Once the Parties agree on the
accuracy of any appropriate adjustment, if any, for each Fixed
Allocation Ratio, such agreed upon adjusted Fixed Allocation Ratio
shall be applied beginning in the first month of the immediately
following calendar quarter.
(iii) Notwithstanding the provisions of clause (b)(ii) above,
upon the occurrence of (A) a sale or closure of a Plant or the
transfer of a Plant to Ford, (B) ACH's exit from a line of Business or
(C) the provision to Visteon of a ACH Change Notice relating to a
material change pursuant to Section 3.4 (each, a "Significant Event"),
the Parties shall promptly meet and agree to an appropriate adjustment
of the affected Fixed Allocation Ratio, which adjusted Fixed
Allocation Ratios shall be applied in the month following the month
during which the Significant Event occurs.
(c) Visteon will provide to ACH the same billing data (including
consumption detail) and level of detail as Visteon receives from a Visteon Third
Party Service Provider or customarily provides to Visteon's other businesses and
such other related data as may be reasonably requested by ACH, including a
breakdown of the costs associated with the provision of the Services to ACH
under each Statement of Work. Visteon shall provide ACH with any billing data or
other information that ACH reasonably requires to verify that the proposed
charges are in compliance with the Costs provided for in this Agreement.
(d) As more specifically set forth in (i) an amended Statement of Work
or a Statement of Work associated with a New Service Request, (ii) a ACH Change
Notice or (iii) a Capital Investment Notice, Service Fees and such others
amounts identified in a Statement of Work that are in addition to the Estimated
Monthly Service Fee shall be invoiced by Visteon separately on a monthly basis
as incurred by Visteon and shall be paid by ACH in accordance with this Section
5.3.
(e) After providing Visteon with reasonable prior notice, ACH shall
have the right to withhold amounts invoiced by Visteon but only with respect to
amounts for which ACH determines in good faith that ACH is not liable to Visteon
because the Service at issue was not provided or the invoiced amount was not
correct. Any payment amounts withheld shall be submitted to the dispute
resolution process set forth in Article IV.
5.4 AUDITS AND ACCESS TO INFORMATION.
(a) ACH or its designee shall have the right to perform audits
(including, but not limited to, financial, operational and systems audits) and
internal control reviews of any and all Services provided under this Agreement,
including, to the extent possible, Services provided by a Visteon Third Party
Service Provider. Subject to the provisions of Sections 5.4(a)(i) and
5.4(a)(ii), Visteon shall provide ACH's external auditors, other unaffiliated
third party, and Ford, as applicable, with access at reasonable times and upon
reasonable notice, to Visteon's data,
21
personnel, and books and records relating to the Services for the purpose of
performing such internal audits and control reviews, which may include internal
audits and control reviews of the data and methodology used by Visteon to
determine the costs of, and the key processes supporting, such Services.
(i) With respect to Services provided by Visteon employees who
are not leased by ACH from Visteon under the Visteon Hourly Employee Lease
Agreement or the Visteon Salaried Employee Lease Agreement, and as set forth in
greater detail in Exhibit E hereto, Visteon and ACH shall cooperate in good
faith in order to meet the requirements of both Parties in the most efficient
possible manner (A) to develop for each calendar year a mutually agreeable
internal audit and control review plan, and (B) to perform, or to cause to be
performed, the financial, operational and systems internal audits and reviews
contemplated by this Section 5.4. Visteon and ACH agree to meet not less than
four times each calendar year, to develop and/or modify and adjust, by mutual
agreement, the internal audit and control review plan for the applicable
calendar year. Notwithstanding the foregoing, if either (i) Visteon elects not
to perform, or to cause to be performed, an internal audit or control review of
any aspect of the Services required by the agreed upon internal audit and
control review plan or otherwise requested by ACH or (ii) ACH disagrees in any
material respect with the conduct or results of any such internal audit or
control review, ACH shall have the right to perform, or to cause to be
performed, an internal audit or control review of such aspect of the Services in
accordance with this Section 5.4.
(ii) Notwithstanding any other provision of this Section 5.4, ACH
or its designee shall have the sole right to perform internal audits and control
reviews of processes (including, but not limited to, financial, operational and
systems processes) directed by ACH and any employees leased by ACH from Visteon
under the Hourly Employee Lease Agreement and the Salaried Employee Lease
Agreement.
(b) If any internal audit or control review reveals either (i) any
actual or potential ongoing or one-time material financial or operational risk
to ACH or Visteon in excess of $500,000, or (ii) any material violation of law,
regulation or other applicable governmental requirement, fraud, theft, or other
significant risk to ACH or Visteon that relates to the Services, Visteon or ACH
shall provide the other Party with all such information reasonably required by
the other Party in order for the other Party to understand the nature of the
risk and with a copy of the report containing such findings to the extent
relevant to the Services, together with a summary description of any corrective
action, the timing thereof, and subsequent testing for such risk as contemplated
by Visteon. In the event that ACH requests that Visteon take any material action
under this Agreement relating to internal controls, including, but not limited
to, separation of systems or information, systems processing, Visteon and ACH
data, or imposition of security measures or other activities for purposes of
ACH's compliance with any law, regulation or other applicable governmental
requirement (including the internal controls requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act")), Visteon shall use commercially
reasonable efforts to accommodate such request, provided, that ACH shall be
responsible for all costs and expenses of such request, but only to the extent
that the action requested is incremental to Visteon's obligations pursuant to
Section 3.1(e).
22
(c) Each Party shall be responsible for its own personnel and other
costs in connection with the performance of, or provision of access and
assistance relating to, internal audits or control reviews under this Section
5.4 (including, but not limited to, all such items set forth in Exhibit E
hereto). Each of the Parties may request, however, that a SAS 70 Type II review
be performed and a SAS 70 Type II report be provided to such Party with respect
to the Services, provided, that the requesting Party shall bear the expenses of
such SAS 70 Type II review and report.
(d) Subject to the confidentiality provisions and any other
restrictions contained in the terms and conditions of this Agreement, Visteon
and ACH shall provide, upon written request, any information within such Party's
possession that the requesting Party reasonably needs in connection with
Services being provided by or to such requesting Party (i) to comply with
requirements imposed on the requesting Party by a governmental authority; (ii)
for use by such requesting Party in any internal audit, control review,
accounting, tax or similar process; or (iii) otherwise to comply with such
requesting Party's obligations under this Agreement. Notwithstanding the
foregoing, Visteon shall only be obligated to provide access to any of Visteon's
personnel records, internal costing data, research and development data or other
information, in each case to the extent that such information relates to the
Business or the Services provided under this Agreement. ACH's auditors and other
representatives shall sign a non-disclosure agreement in form and substance
mutually agreeable to the Parties and shall comply with Visteon's reasonable
security requirements. With respect to any internal audit or control review
under this Agreement conducted jointly by the Parties or their designees under
this Section 5.4, each Party shall provide the other upon request with copies of
work papers prepared by its audit personnel (or the audit personnel of its
designees) regarding such audit or internal control review; provided, however,
that neither Party shall be obligated under this Section 5.4 to provide any
documents or information protected by attorney-client privilege or the work
product doctrine.
5.5 TAXES.
ACH shall be responsible for and pay any and all excise, sales, use,
gross receipts, Mexican value-added or other similar transaction taxes (provided
that Visteon provides ACH with supporting documentation, including a VAT
invoice, as appropriate) that may be levied by any domestic or foreign
government related to the charges or Services rendered pursuant to this
Agreement. Where allowed by Law, ACH may pay such taxes directly to the
applicable tax authorities and, in such cases, will furnish Visteon with
appropriate documentation (e.g., direct-pay permit, etc.). In all other cases,
applicable taxes will be included as a component of the Estimated Monthly
Service Fee charged by Visteon to ACH under this Agreement or, where necessary,
billed separately.
ARTICLE VI
TERMINATION
6.1 TERMINATION BY VISTEON.
Visteon shall have the right to terminate this Agreement upon notice
to ACH in the event any of the following occur:
23
(a) The commencement of any proceedings under court supervision for
the liquidation or dissolution of ACH;
(b) The insolvency, appointment of a receiver for or institution of
reorganization or similar proceedings of or for ACH;
(c) The making of any assignment for the benefit of creditors by ACH;
(d) The filing of a petition in bankruptcy by or against ACH under any
bankruptcy or debtor's Laws for its relief or reorganization or for the
composition, extension, arrangement or readjustment of its obligations; or
(e) The failure by ACH to perform any of its material obligations
under this Agreement relating to any of the Services, which has not been
corrected within thirty (30) calendar days after written notice thereof is
delivered to ACH by Visteon or in the event of non-payment of any Service Fees
payable to Visteon by ACH pursuant to Section 5.3 above (other than those
Service Fees that are withheld pursuant to Section 5.3(e) above) which has not
been cured within five (5) Business Days after written notice has been delivered
by Visteon to ACH. ACH acknowledges and agrees that any such failure of ACH that
materially adversely affects Visteon's relationship with any Visteon Third Party
Service Provider shall be deemed to constitute a material failure for purposes
of the foregoing.
6.2 TERMINATION OF AGREEMENT AND SERVICES BY ACH.
(a) ACH may terminate this Agreement prior to the expiration of the
Term: (i) if Visteon fails to perform any of its material obligations under this
Agreement relating to the Services, following notice and reasonable opportunity
to cure; or (ii) for any reason, upon ninety (90) days' advance written notice
to Visteon.
(b) Subject to any applicable provision in a Statement of Work, ACH
may terminate one or more Statement(s) of Work in its or their entirety, or any
Service(s) in its or their entirety provided under such Statement(s) of Work,
with respect to one or more Plant(s), by giving Visteon ninety (90) days'
written notice of such termination. In the event of any such termination, the
applicable Statement of Work and the applicable Service Level Schedule for such
Service shall be deemed to have been terminated or amended, as the case may be,
accordingly.
(c) In the event of any termination of this Agreement, a Statement of
Work or a Service pursuant to this Section 6.2, ACH shall not be responsible for
any Termination Charges or other costs, expenses, fees, or charges of any kind
whatsoever incurred by or imposed on or required to be paid by Visteon as a
result of such termination, including those payable to any Visteon Third Party
Service Provider. Each of Visteon and ACH acknowledges that Visteon shall be
entitled to reimbursement of any such Termination Charges or other costs,
expenses, fees or charges pursuant to the terms of the Escrow Agreement.
(d) Upon the termination of any Services by ACH pursuant to this
Section 6.2, such terminated Services shall be deemed to be Excluded Services
for all purposes under this Agreement.
24
6.3 EFFECT OF EXPIRATION OR TERMINATION; SURVIVAL.
(a) Upon termination of any particular Service or of this Agreement in
accordance with its terms, Visteon shall have no further obligation to provide
such terminated Service or to perform its obligations hereunder with respect to
such terminated Service, and ACH shall not have any obligation to purchase any
such terminated Service from Visteon, pay any Termination Charges or other fees
relating to such terminated service or make any other payments with respect to
such terminated Service after the date of expiration, except in either case as
provided in Section 6.2 or otherwise expressly set forth in this Agreement.
(b) If ACH terminates this Agreement, any or all Services, or all
Services at a particular Plant pursuant to Section 6.2(b) prior to the
expiration of the Term, upon the written request of ACH (which shall be
delivered to Visteon as a New Services Request pursuant to Section 3.6
concurrently with ACH's written notice of termination to Visteon pursuant to
Section 6.2(b)), Visteon and ACH shall cooperate to transition the affected
businesses from the Services to the new systems used by ACH or a ACH Buyer;
provided however, that unless otherwise agreed to by the Parties in writing,
Visteon's obligation to cooperate in such transition shall not exceed ninety
(90) days from the date of such notice of termination.
(c) Notwithstanding any termination of a Service or expiration or
termination of this Agreement, but subject to the other terms of this Agreement,
ACH shall remain liable to Visteon for all Service Fees and amounts, costs and
expenses payable or incurred by Visteon or any of its Affiliates on behalf of
ACH in connection with the provision of any Services prior to the effective date
of such termination in accordance with the terms of this Agreement.
(d) Upon expiration or termination of this Agreement: (i) no Party
shall be relieved of any liability for the breach of any provision of this
Agreement; and (ii) any amounts owed hereunder by one Party to another Party
shall be paid as they become due and payable within forty-five (45) days under
the terms of this Agreement as applicable to payments prior to the expiration or
termination of this Agreement, and shall be made by wire transfer of immediately
available funds; provided that, with respect to payment for any Services, all
Service Fees shall be invoiced sixty (60) days after the end of the month during
which such termination occurred. Upon expiration or termination of this
Agreement, all rights and obligations hereunder will terminate except that
Articles IV, IX, XI, XII, XIV and XV and Sections 5.3, 5.4, and 6.3 will
continue to survive any expiration or termination of this Agreement.
ARTICLE VII
USE OF VISTEON SOFTWARE AND EQUIPMENT
7.1 USE OF VISTEON SOFTWARE AND EQUIPMENT.
ACH acknowledges and agrees that certain assets used by Visteon in the
provision of the Services, including various components of the Equipment,
Visteon Owned Software and Visteon Licensed Software, will be shared and used
concurrently by Visteon, ACH and ACH Buyers, and/or a third party(ies) during
the Term of this Agreement.
25
ARTICLE VIII
PERSONNEL, FACILITIES AND SYSTEMS
8.1 PERSONNEL.
(a) Services may be provided by such Personnel as Visteon deems
appropriate in its reasonable discretion. Visteon may hire or engage one or more
subcontractors or other third parties to perform all or any of the Services,
provided that Visteon shall remain ultimately liable and responsible for
compliance with the terms and conditions of the Agreement.
(b) During the Term, ACH agrees not to solicit, directly or
indirectly, for employment or employ any Visteon Personnel (other than retired
Personnel) who is or was actively involved in the performance, consumption or
evaluation of the Services without the prior written consent of Visteon;
provided, however, that nothing contained herein will prevent ACH from hiring
any such Personnel who responds to a general hiring program conducted in the
ordinary course of business or who approaches ACH on a wholly unsolicited basis.
8.2 FACILITIES.
(a) The Services shall be provided by Visteon from locations as
determined by Visteon in its sole discretion from time to time during the Term
and using the Equipment and furniture and fixtures owned or leased by Visteon or
its Affiliates, or owned or leased by Visteon Third Party Service Providers
(collectively, the "Facilities"). Visteon may move or change Facilities in its
discretion from time to time as required for Visteon's business, provided that
Visteon continues to fulfill its obligations under this Agreement. Except where
purchased by ACH pursuant to Section 5.2(d)(i), ACH acknowledges and agrees that
it shall not have any right, title, or interest in or to the Facilities
(including the Equipment).
(b) Subject to the mutual agreement of the Parties, the Services may
also be provided by Visteon from locations owned or leased by ACH and using
equipment and furniture and fixtures owned or leased by ACH. Subject to the
mutual agreement of the Parties, to the extent any Service requires access to or
use of any asset of ACH or its Affiliates, ACH shall permit Visteon's Personnel,
or cause ACH's Affiliates and Subsidiaries to permit Visteon's Personnel, to
have such reasonable access and reasonable use of any such asset, without charge
or expense to Visteon, for the provision of Services. Further, subject to the
mutual agreement of the Parties, ACH shall provide Visteon with all reasonable
access to and right to use ACH's personnel, facilities, equipment, data and
software (including object code and source code therefor) as Visteon reasonably
deems necessary to provide the Services. Visteon shall store and safeguard all
storage media containing such equipment, data and software in the possession and
custody of Visteon in accordance with Visteon's standards for maintaining its
own similar data or software.
8.3 TECHNOLOGY CHANGES.
(a) Visteon shall have the right to control and change the
configuration and operation of any changes to all Equipment used to provide the
Services, whether or not fully dedicated to provide Services. In addition,
Visteon shall be entitled to move the location at which the Services are
performed, including the facilities in which data of ACH is processed at
26
the convenience of Visteon to functionally equivalent equipment owned or
operated by Visteon or one of its Subsidiaries, Affiliates and/or contractors,
provided that Visteon continues thereafter to fulfill its obligations under this
Agreement. Visteon may make any material changes to technology infrastructure
and applications within the Equipment (including but not limited to mainframe
equipment, servers, data storage devices, wide area network and local area
network equipment, peripherals, desktop and laptop computers, telephones,
telephone systems, telephone networks, voice mail systems and voice mail
networks), systems, systems architecture, software, databases, technology
infrastructure and applications or any other item or service acquired
(including, without limitation, by adding updates and new releases and changing
the operating system or particular software or equipment) that Visteon
determines are desirable in the normal course of business ("Technology
Changes"), provided, that Visteon continues thereafter to fulfill its
obligations under this Agreement, and provided further, that any Technology
Changes that constitute Capital Investments shall be subject to Section 5.2 of
this Agreement.
(b) In the event that Visteon determines to implement a Technology
Change, Visteon shall provide to ACH with reasonable advance written notice a
Visteon Change Notice. The Visteon Change Notice shall include a description in
reasonable detail of the Technology Change. Within a reasonable time after the
receipt of a Visteon Change Notice, ACH shall provide a ACH Election Notice to
Visteon indicating whether ACH desires to continue to receive the affected
Service(s) or whether ACH desires to terminate the affected Service(s) in
accordance with Section 6.2(b) of this Agreement. If, notwithstanding the
Technology Change described in the Visteon Change Notice, ACH elects in the ACH
Election Notice to continue to receive the affected Service(s), Visteon shall
use commercially reasonable efforts (as defined in Section 3.6) to continue to
provide or procure such Service(s) on behalf of ACH in accordance with the terms
of this Agreement, it being understood by the Parties that Visteon any such
continued provision or procuring of the Service(s) shall occur in accordance
with Article V. Within a reasonable time after receipt of the ACH Election
Notice, Visteon shall determine in good faith whether it is able through the use
of commercially reasonable efforts to continue to provide or procure such
Service(s) and shall provide ACH with a Visteon Capacity Notice. In the event
that Visteon determines in good faith that, despite the use of commercially
reasonable efforts, it is unable to continue to provide or procure such
Service(s), Visteon shall explain in reasonable detail in the Visteon Capacity
Notice the reasons for Visteon's inability to continue to provide or procure
such Service(s) and shall cooperate in good faith with ACH to identify and
facilitate (by providing reasonable access to its personnel, facilities,
equipment or otherwise) an alternative means of obtaining such Service(s). If
ACH wishes to dispute Visteon's inability to provide or procure such Service(s),
then the Parties shall make use of the provisions of Article IV hereof to
resolve any such dispute.
(c) ACH shall not change any procedure or method of operation that
materially adversely affects Visteon's performance of its obligations under this
Agreement or any of the Equipment without Visteon's prior written consent.
27
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION.
The Parties agree that the applicable provisions of Article VIII of
the Contribution Agreement subject to the specific limitations and exclusions
set forth in Article XII of this Agreement shall apply to this Agreement.
9.2 EXCLUSIVE REMEDY.
Subject to Article XII, the Parties acknowledge that their sole remedy
contained in this Agreement shall be as referred to in this Article IX. Nothing
contained herein, however, shall limit the rights of any Party to seek and
obtain injunctive relief to specifically enforce the other Party's obligations
hereunder under Section 15.12 or otherwise.
ARTICLE X
COMPLIANCE WITH AND CHANGES TO LAWS AND POLICIES
10.1 COMPLIANCE WITH LAWS AND POLICIES.
(a) At all times while a Statement of Work is in effect, Visteon shall
comply, and shall remain in compliance, with all applicable Laws affecting its
performance of the Services, and the terms of this Agreement relating to or
affecting the performance of its obligations hereunder, and shall secure and
maintain in full force and effect all governmentally required licenses, permits
and authorizations necessary for the performance of its obligations hereunder.
Visteon shall comply with all Laws applicable to its business. Notwithstanding
any provision herein to the contrary, Visteon shall be entitled to reasonably
rely on all written instructions provided by a duly authorized officer of ACH to
Visteon with respect to legal and regulatory requirements applicable to the
businesses of ACH.
(b) At all times during the Term of this Agreement, ACH shall comply,
and be and remain in compliance with all applicable Laws and the terms of this
Agreement relating to or affecting the receipt of the Services and the
performance of its obligations hereunder, and shall secure and maintain in full
force and effect all licenses, permits and authorizations necessary for the
performance of its obligations hereunder, provided, that ACH shall not be
responsible for any failure or inability to meet its obligations under this
Section 10.1(b) where such failure or inability arises from, or is reasonably
attributable to, any failure or inability of Visteon to comply with Visteon's
obligations under this Agreement, including, but not limited to, the failure or
inability of Visteon to obtain any consents required in order to provide
Services to ACH under this Agreement.
10.2 CHANGES IN LAWS.
Notwithstanding anything to the contrary in this Agreement, in the
event of any change in Law or enactment of a new Law that affects the Services
after the date of this Agreement, Visteon and ACH will negotiate in good faith
to modify the applicable Statement of Work (including the Service Fees) and
related Services to the extent necessary to comply with
28
such new or amended Law. For the avoidance of doubt, to the extent New Services
are required for purposes of such compliance, Visteon shall provide such New
Services to ACH in accordance with Section 3.6, and all such New Services shall
be provided to ACH (but not to ACH Buyers) in accordance with Article V of this
Agreement. To the extent that a change in any applicable Laws adversely affects
the ability of Visteon to perform its obligations under this Agreement, Visteon
shall take such actions as are reasonably necessary and appropriate for Visteon
to fulfill its obligations hereunder. To the extent that a change in any
applicable Law adversely affects the ability of ACH to receive or to use
Services, ACH shall take such actions as are reasonably necessary and
appropriate for ACH to receive or to use Services or otherwise to fulfill its
obligations hereunder. If any joint action by Visteon or ACH is required under
this Section, ACH and Visteon shall cooperate in good faith to promptly and
mutually agree upon the course of action required.
ARTICLE XI
CONFIDENTIAL INFORMATION
11.1 CONFIDENTIAL INFORMATION.
(a) Each of Visteon and ACH agrees to hold in confidence, and to use
only in connection with the provision or receipt of the Services under this
Agreement, all information that is disclosed under this Agreement and designated
by the disclosing Party in writing or by appropriate stamp or legend as
"CONFIDENTIAL" or some similar marking of like importance, or where the nature
of the information is such that a reasonable person who deals with such
information would believe that a party intends or is obligated to maintain it as
confidential (hereinafter "Confidential Information"). For the avoidance of
doubt, the Parties agree that Confidential Information shall include information
of Visteon Third Party Service Providers that is designated as confidential
under the terms of an agreement between Visteon and such Visteon Third Party
Service provided that such information is designated by the disclosing Party in
writing or by appropriate stamp or legend as "CONFIDENTIAL" or some similar
marking of like importance. The receiving Party agrees to use the same degree of
care, but no less than a reasonable degree of care, to prevent the unauthorized
use and disclosure of the Confidential Information to third parties (including
Ford) as it uses to protect its own confidential information of like importance.
Except as specified below, the obligations of this Article XI shall terminate on
the expiration of the Term of this Agreement, after which the party having
received the Confidential Information shall limit further disclosure in the same
manner as that party protects its own confidential information of like
importance.
(b) Notwithstanding any other provision of this Agreement, the
obligations of restricted disclosure and use specified herein will not apply to
Confidential Information which: (i) is available as of the Effective Date or
becomes available to the public without breach of this Agreement; (ii) is
authorized for release in writing by the disclosing Party prior to the
applicable disclosure; (iii) is lawfully obtained from a third party or parties
without a duty of confidentiality; (iv) is disclosed to a third party by the
disclosing Party without a similar duty of confidentiality; or (v) is at any
time developed by the receiving Party independently of any related disclosure(s)
from the disclosing Party.
29
(c) With regard to any Confidential Information disclosed pursuant to
this Agreement, the receiving Party shall not be liable for unauthorized
disclosure of such Confidential Information pursuant to judicial action or
governmental regulations or requirements, provided that the receiving Party
notifies the disclosing Party of the need for such disclosure within a
reasonable period of time before such disclosure is required.
ARTICLE XII
LIMITATION OF LIABILITY; NO WARRANTIES
12.1 LIMITATION OF LIABILITY.
Notwithstanding any other provision of this Agreement, and for any
reason, including breach of any duty imposed by this Agreement or independent of
this Agreement, and regardless of any claim in contract, tort (including
negligence) or otherwise, the liability of each Party under this Agreement and
all Participation Agreements, for any single breach, other than ACH's
obligations to make payments to Visteon under this Agreement, shall in no
circumstance exceed, in the aggregate the total amount of all payments made to
Visteon by ACH for the Services during the three (3) months prior to the act or
event giving rise to such claim under the Statement of Work to which such claim
relates.
12.2 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES.
INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF
ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER
PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS)
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING
LOST PROFITS, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE, EXCEPT IN THE CASE OF
WILLFUL OR INTENTIONAL BREACH.
12.3 NO WARRANTIES.
EXCEPT AS SET FORTH IN SECTION 3.1(e) OR AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, VISTEON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN
CONNECTION HEREWITH (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY SERVICES
OR ANY DATA, WORKS OR MATERIALS PROVIDED HEREUNDER) INCLUDING, BUT NOT LIMITED
TO, NON-WARRANTIES OF IMPLIED MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICES OR ANY DATA, WORKS OR MATERIALS
TO BE PROVIDED UNDER THIS AGREEMENT.
12.4 ESSENTIAL ELEMENTS.
ACH and Visteon acknowledge and agree that the limitations contained
in this Article XII are essential to this Agreement, and that Visteon and ACH
have expressly relied upon the inclusion of each and every provision of this
Article XII as a condition to executing this Agreement.
30
ARTICLE XIII
FORCE MAJEURE
13.1 FORCE MAJEURE.
If either Party hereto is rendered unable wholly or in part by Force
Majeure (as defined herein) to perform its obligations hereunder (other than the
obligation to pay money), such Party shall give prompt notice to the other Party
with reasonable particulars thereof and the probable extent of the inability to
perform such obligation, whereupon the obligation of such Party shall be
suspended so far as it is affected by such Force Majeure during but no longer
than the continuance thereof. The affected Party shall use all possible
diligence to remove such Force Majeure.
(b) For the purpose of this Agreement, the term "Force Majeure" shall
mean any act of God, strike or lockout or other labor dispute, act of the public
enemy, war declared or undeclared, terrorist act, blockade, revolution, riot,
insurrection, civil commotion, lightening, fire, storm, flood, earthquake,
explosion, governmental restraint, embargo, inability to obtain or delay in
obtaining governmental approvals, permits, licenses or allocations (excluding
any such governmental approvals, permits, licenses or allocations that a Party
was required to obtain under any Contribution Agreement Transaction Document,
Visteon A Transaction Document or Visteon B Transaction Document), and any other
cause of the kind enumerated above which is not reasonably within the control of
the Party claiming Force Majeure.
ARTICLE XIV
INTELLECTUAL PROPERTY
14.1 INTELLECTUAL PROPERTY
The Parties agree that this Agreement shall require the performance of
Services only and shall not entail any transfer or licensing of either Party's
rights in intellectual property. Notwithstanding anything in this Agreement to
the contrary, the rights of the Parties as set forth in the Intellectual
Property Contribution Agreement and the Software License and Contribution
Agreement shall not be modified or affected in any manner by the provisions of
this Agreement.
14.2 INTEREST IN PROPRIETARY INFORMATION.
(a) Except as set forth in Section 14.2 (b), ACH shall not be deemed
to have acquired any interest in proprietary information of Visteon which
becomes available to ACH in the performance of Visteon's obligations under this
Agreement or otherwise in connection with the provision of Services. Visteon
shall not be deemed to have acquired any interest in proprietary information of
ACH which becomes available in performance of the obligations under this
Agreement or otherwise in connection with the provision of Services.
(b) As used in this Section 14.2, "Shared Resource" shall mean any
employees, or if applicable, agents, subcontractors or representatives of
Visteon or its Affiliates who provide any Services under this Agreement and who
are obligated under law or contract to assign or license intellectual property
rights to Visteon.
31
(c) (i) The Parties agree that all right, title and interest in and to
intellectual property developed or conceived by a Shared Resource shall be owned
by the party for which the Shared Resource was working, at the time of
development or conception, only if there is convincing evidence that such
intellectual property could not reasonably be attributed to a task or project
previously or currently assigned by the other party. Visteon hereby agrees that
if ownership of the intellectual property under this Section 14.2(c)(i) should
be assigned to ACH, Visteon shall or shall cause its subsidiary to assign such
intellectual property to ACH. The Parties agree to meet on a regularly scheduled
basis to review all disclosures submitted to either party that name one or more
Shared Resources as an inventor. The Parties shall agree at that time whether
the invention satisfies the requirements of this Article. If the Parties can not
come to an agreement, then Sections 14.2(c)(ii) through (c)(vi) shall apply as
appropriate.
(ii) The Parties agree that all right, title and interest in
intellectual property developed in the course of providing Services related to
Visteon Core Shared Products and Technologies (as defined in the Intellectual
Property Contribution Agreement) under this Agreement shall be owned by Visteon.
Further, Visteon shall grant or shall cause its subsidiary to grant to ACH an
irrevocable, non-exclusive, worldwide, non-sublicensable, fully paid, royalty
free license to make, have made, use, have used, offer for sale, sell and import
products under any of the intellectual property developed in the course of
providing Services related to Visteon Core Shared Products and Technologies
under this Agreement.
(iii) Visteon shall or shall cause its subsidiary to assign all
right, title and interest in intellectual property developed in the course of
providing Services related to Visteon Non-Core Shared Products and Technologies
(as defined in the Intellectual Property Contribution Agreement) under this
Agreement to ACH. Further, ACH shall grant to Visteon or Visteon's designated
subsidiary an irrevocable, non-exclusive, non-sublicensable, fully paid, royalty
free license to make, have made, use, have used, offer for sale, sell, and
import products and methods under any of the intellectual property developed in
the course of providing Services related to Visteon Non-Core Shared Products and
Technologies under this Agreement.
(iv) Visteon agrees to grant to ACH a royalty bearing license on
commercially reasonable terms and conditions to Visteon's or its subsidiaries'
intellectual property which is necessary to utilize the intellectual property
developed in the course of providing Services related to Visteon Non-Core Shared
Products and Technologies under this Agreement. Such royalty bearing license
shall not apply to royalty free rights granted to ACH under the Intellectual
Property Contribution Agreement.
(v) Visteon agrees to grant to ACH on commercially reasonable
terms (i) an irrevocable, non-exclusive, non-sublicensable, royalty bearing
license to make and use products and manufacturing methods in North America, and
(ii) an irrevocable, non-exclusive, worldwide, non-sublicensable, royalty
bearing license to use, have used, offer for sale, sell, and import products, to
Visteon's or its subsidiaries' intellectual property which is necessary to
utilize the intellectual property developed in the course of providing Services
related to Visteon Core Shared Products and Technologies under this Agreement.
Such royalty bearing license shall not apply to royalty free rights granted to
ACH under the Intellectual Property Contribution Agreement.
32
(vi) The license rights granted in Sections 14.2(c)(ii), (iii),
(iv), or (v) shall be severable and separately transferable by business, under
the same terms and conditions, upon the sale of all or substantially all of the
assets related to that business to a ACH Buyer. Subject to the terms of Section
7.04(B) of the Intellectual Property Contribution Agreement, the licensee of the
rights granted in Sections 14.2(c)(ii), (iii), (iv), or (v) above shall retain
rights under that portion of such license which is transferred to the ACH Buyer
in the event that the licensee has remaining manufacturing facilities currently
producing products requiring all or a portion of the transferred license.
ARTICLE XV
MISCELLANEOUS
15.1 NOTICES.
All notices, requests and other communications to any Party hereunder
shall be in writing (including facsimile transmission and electronic mail
("e-mail") transmission, so long as a receipt of such email is requested and
received) and shall be given,
if to ACH, to:
Automotive Components Holdings, LLC
c/o Ford Motor Company
Office of the Secretary
One American Road
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
with a copy to:
Ford Motor Company
Office of the General Counsel
One American Road
320 World Headquarters
Dearborn, Michigan 48126
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇@▇▇▇▇.▇▇▇
if to Visteon, to:
Visteon Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel
Facsimile No.: (734) 710 - 7132
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
33
or such other address or facsimile number as such Party may hereafter specify
for the purpose by notice to the other Party hereto. All such notices, requests
and other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. in the place of receipt and
such day is a Business Day in the place of receipt. Otherwise, any such notice,
request or communication shall be deemed not to have been received until the
next succeeding Business Day in the place of receipt.
15.2 AMENDMENTS; WAIVER.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each Party to this Agreement, or in the case of a waiver, by the
Party against whom the waiver is to be effective.
(b) No failure or delay by any Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
15.3 INTERPRETATION.
(a) When a reference is made in this Agreement to a Section, Exhibit
or Schedule, such reference shall be to a Section of, or an Exhibit or Schedule
to, this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the singular is used herein, the same shall include the plural, and whenever the
plural is used herein, the same shall include the singular, where appropriate.
(b) No provision of this Agreement will be interpreted in favor of, or
against, any Party hereto by reason of the extent to which any such Party hereto
or its counsel participated in the drafting thereof or by reason of the extent
to which any such provision is inconsistent with any prior draft hereof or
thereof.
15.4 SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and permitted
assigns; provided that no Party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the consent of the
other Party hereto. Notwithstanding the foregoing, Visteon may assign this
Agreement and any and all rights, duties and obligations hereunder to any
directly or indirectly wholly-owned Subsidiary of Visteon without the consent of
ACH or any ACH Buyer, provided that such an assignment shall not constitute a
release of Visteon. The Parties acknowledge and agree that the use by Visteon of
a Visteon Third Party Service Provider to provide any of the Services shall not
constitute an assignment. In no event shall a ACH Buyer be permitted to assign a
Participation Agreement or any rights, interests or obligations thereunder
without the consent of Visteon, which consent may be withheld for any reason.
34
15.5 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the law of the State of Michigan, without regard to the conflicts of law rules
of such state.
15.6 JURISDICTION.
Subject to Article IV hereof, the Parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any federal court sitting in Michigan or
any Michigan State court sitting in ▇▇▇▇▇ County or Oakland County, Michigan, so
long as one of such courts shall have subject matter jurisdiction over such
suit, action or proceeding, and that any cause of action arising out of this
Agreement shall be deemed to have arisen from a transaction of business in the
State of Michigan, and each of the Parties hereby irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any Party anywhere in the world, whether within or without the
jurisdiction of any such court.
15.7 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.8 COUNTERPARTS; EFFECTIVENESS; THIRD-PARTY BENEFICIARIES.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
when each Party hereto shall have received a counterpart hereof signed by the
other Party hereto. Until and unless each Party has received a counterpart
hereof signed by the other Party hereto, this Agreement shall have no effect and
no Party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication). No provision of this
Agreement is intended to confer any rights, benefits, remedies, obligations or
liabilities hereunder upon any Person other than the Parties hereto and their
respective successors and permitted assigns under Section 15.4.
15.9 ENTIRE AGREEMENT.
This Agreement, together with all Statements of Work and all
schedules, exhibits and attachments thereto, constitutes the entire agreement
between the Parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the Parties with respect to the subject matter of this Agreement.
35
15.10 SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such a determination, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
15.11 INDEPENDENT CONTRACTORS.
This Agreement does not constitute a partnership and nothing herein is
intended to render, nor shall anything herein be construed to render, the
Parties hereto as partners of each other. Nothing contained herein shall render
either Party an agent of the other Party, and neither Party shall have the
power, authority or right to act on behalf of or bind the other Party or
negotiate or conclude contracts on behalf of or in the name of the other Party
or impose any liability or obligation to third parties upon the other Party.
Neither Party shall incur or accept any liability or enter into any commitments
or contracts on behalf of the other Party.
15.12 SPECIFIC PERFORMANCE.
The Parties hereto agree that irreparable damage would occur if any
provision of this Agreement were not performed in accordance with the terms
hereof and that the Parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement or to enforce specifically the performance of
the terms and provisions hereof in the courts specified in Section 15.6, in
addition to any other remedy to which they are entitled at law or in equity.
[Signatures appear on the following page]
36
IN WITNESS WHEREOF, each of the Parties hereto, having caused this
Master Services Agreement to be duly executed, do hereby warrant and represent
that their respective signatories, whose signatures appear below, have been and
are on the date of this document officers duly authorized by all necessary and
appropriate corporate action to execute this Master Services Agreement.
VISTEON CORPORATION, a Delaware AUTOMOTIVE COMPONENTS HOLDINGS, LLC,
corporation a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------------------
Its: Executive Vice President Its: President
and Chief Financial Officer
37