Exhibit 10.13
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. 200.80(b)(4) AND 240.24b-2
PURCHASE AND SUPPLY AGREEMENT
REGARDING SUPPLY OF COMPONENTS BY VISTEON TO FORD
BETWEEN
VISTEON CORPORATION
AND
FORD MOTOR COMPANY
October 1, 2005
PURCHASE AND SUPPLY AGREEMENT REGARDING SUPPLY OF COMPONENTS BY VISTEON TO FORD
This Purchase and Supply Agreement Regarding Supply of Components by Visteon to
Ford ("AGREEMENT") dated as of October 1, 2005 is entered into by and between
Visteon Corporation, a Delaware corporation ("VISTEON"), and Ford Motor Company
("FORD"), a Delaware corporation. Each of Ford and Visteon is herein referred to
as a "PARTY" and collectively, the "PARTIES."
RECITALS
X. Xxxx and Visteon entered into a Purchase and Supply Agreement dated as of
December 19, 2003 (the "2003 AGREEMENT") covering the purchase from Visteon and
certain of its subsidiaries and affiliates and supply to Ford and certain of its
subsidiaries and affiliates worldwide of motor vehicle-related components and
systems.
B. As part of an overall restructuring of Visteon operations, the Parties intend
to terminate the 2003 Agreement and to substitute this Agreement for the 2003
Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and intending to be legally bound, Visteon and Ford hereby agree as
follows:
1. DEFINED TERMS
1.1 All terms with initial capitalization used herein shall have the following
definitions unless specifically stated otherwise. In this Agreement, except as
otherwise expressly provided or the context otherwise clearly requires, words in
the singular include the plural, and vice versa.
"AAI" means AutoAlliance International, Inc.
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly Controlling, Controlled by or under common Control with such first
Person. For the purpose of this definition, the term "Control" (including, with
correlative meanings, the terms "Controlling," "Controlled by" and "under common
Control with"), as used with respect to any Person, means having the right to
elect a majority of the board of directors or other comparable body responsible
for management and direction of such Person, or otherwise having, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such Person, by contract or by virtue of share ownership. For the
avoidance of doubt, neither Newco, any of its subsidiaries, Mazda Motor
Corporation, nor Mazda Motor America, Inc. shall be deemed to be an Affiliate
(or subsidiary) of Ford or any of its Affiliates for the purposes of this
Agreement, but AAI will be an Affiliate of Ford to the extent it purchases
Components from Visteon.
"BUSINESS DAY" means a day, other than Saturday, Sunday or other day on which
commercial banks in Detroit, Michigan are authorized or required by law to
close.
"COMPETITIVE GAP CLOSURE PLAN" means the gap closure plans specified in Exhibit
3 attached hereto.
"COMPONENTS" means motor-vehicle-related parts, components and systems that are
produced by Visteon or its wholly-owned subsidiaries in North America and that
are shipped directly to Ford facilities in North America or to AAI for use in
vehicles that are sold under the Ford, Lincoln or Mercury brand. Notwithstanding
anything to the contrary in the foregoing sentence, parts, components and
systems that are produced by Visteon Affiliates (other than
its wholly-owned subsidiaries), as well as Tier 2 Components and Service Parts
(except as provided for in Section 13.12 below), are not considered
"Components".
"CONTRIBUTION AGREEMENT" means the contribution Agreement between Visteon and
Automotive Components Holdings, Inc. (f/k/a VFH Holdings, Inc.) dated September
12, 2005.
"DAMAGES" means any and all obligations, liabilities, damages, penalties,
deficiencies, losses, judgments, costs and expenses (including, but not limited
to, costs and expenses incurred in connection with performing obligations,
interest, bonding and appellate costs and reasonable attorneys', accountants',
engineers' and investigators' fees and disbursements), in each case, after the
application of any and all amounts recovered under insurance contracts or
similar arrangements and from third parties by the person claiming indemnity.
"DEFAULTING PARTY" has the meaning specified in Section 8.1.
"DESIGN CHANGE" means any change to the physical Component, its performance, or
its interface with other parts or systems that results in a change to the part
number.
"DIRECTED TIER 2 SOURCING" means the situation where Ford directs a supplier (as
the tier 1 supplier to Ford) to purchase a specific motor-vehicle-related part,
component or system from a specific supplier (the tier 2 supplier to Ford) for
incorporation into a motor-vehicle-related part, component or system to be
supplied by such tier 1 supplier to Ford.
"EVENT OF DEFAULT" has the meaning specified in Section 8.1.
"EXISTING BUSINESS" means all Components that are the subject of an Existing
Agreement.
"EXISTING AGREEMENTS" means all Purchase Orders, Long Term Supply Agreements,
Target Agreements, and Sourcing Agreements with Pricing, in each case: (1) for
Components; and, (2) which were entered into by Ford and Visteon and effective
as of May 1, 2005. Existing Agreements also include the: Target Agreement dated
7/21/06 for the PCM for the 2008 MY C170 & B410 program; and, the Target
Agreement dated 7/20/05 for the PCM/ECM for the 2009MY P415/U222-228 program.
In the event that a Target Agreement or Sourcing Agreement with Pricing for
Components was entered into and effective as of May 1, 2005, but a Purchase
Order or Long Term Supply Agreement relating to such Target Agreement or
Sourcing Agreement with Pricing was entered into and effective after May 1,
2005, such Purchase Order or Long Term Supply Agreement will be an Existing
Agreement for the purposes of this Agreement. In such event, such Purchase Order
or Long Term Supply Agreement became (or will become) the Existing Agreement for
such Components for purposes of this Agreement (as opposed to such Target
Agreement or Sourcing Agreement with Pricing, which will survive only in regard
to such Purchase Order or Long Term Supply Agreement as described in the Global
Terms).
In the event that the vehicle or power-train program to which a Component that
is Existing Business relates is or will be subject to a major refreshening or
will be replaced by, or will become, a new program (such Components are referred
to herein as "AFFECTED COMPONENTS"), and the motor-vehicle-related parts,
components, or systems for the refreshened or new program which replace the
Affected Components are (or were prior to the date of this Agreement) put up for
award by Ford, such Affected Components will no longer be considered to be
Existing Business for the purposes of this Agreement (and, as such, the Existing
Agreement for such Affected Components will no longer be considered to be an
Existing Agreement for the purposes of this Agreement) as of the date that Ford
begins purchasing the motor-vehicle-related parts, components, or systems for
the refreshened or new program which replace the Affected Components. Nothing in
this Agreement or in any Purchase Order, Long Term Supply Agreement, Sourcing
Agreement, or Target Agreement prohibits Ford from sourcing such
motor-vehicle-related parts, components, or systems which replace the Affected
Components to a supplier of its choice, or from purchasing
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the same from such supplier. For the purposes of this definition: "put up for
award" means the issuance of a Request for Quote by Ford for such
motor-vehicle-related parts, components, or systems for the refreshened or new
program which replace the Affected Components; and, "Request for Quote" means a
request issued by Ford to one or more suppliers to provide a quotation for the
supply of such parts, components, or systems. "Put up for award" does not mean
quoting design changes to a carryover component for a new program or following
the change control process.
For the purposes of the prior paragraph, a "major refreshening" or "new program"
means a change to a vehicle or power-train program with a "S3" or higher
designation, for a vehicle program, or a "P3" or higher designation, for a
power-train program, under the Ford Product Development System (FPDS), or the
equivalent designation in Ford's Global Product Development System (GPDS) or any
future product development system of Ford replacing FPDS or GPDS (as
applicable).
"FORD BUY TURNOVER" has the meaning specified in Section 3.1.
"FORD CARRYOVER FROZEN TURNOVER" has the meaning specified in Section 3.1.
"FORD-DIRECTED TIER 2 COMPONENTS" means all Tier 2 Components subject to
Directed Tier 2 Sourcing to Visteon (as the directed tier 2 supplier) by Ford
for which Ford negotiated the price directly with Visteon (i.e., Tier 2
Components that Ford has directed the applicable Ford Tier 1 Supplier
(including, without limitation, Newco) to purchase from Visteon and for which
Ford has negotiated the price directly with Visteon). Ford-Directed Tier 2
Components include, without limitation, instrument clusters, EATCs, and audio
parts and components which were, prior to the date of this Agreement,
direct-sourced by Ford to a Visteon facility in North America (as the tier 2
supplier) for supply to (a) another Visteon facility in North America (as the
tier 1 supplier), which facility was transferred to Newco, or (b) another Ford
Tier 1 Supplier, in each case in regard to which Ford negotiated the price
directly with Visteon or the applicable Visteon facility.
"FORD TIER 1 SUPPLIER" means a supplier (including, without limitation, Newco)
who directly provides goods and services to Ford including (a) production parts,
components, assemblies and accessories; (b) raw materials; (c) tooling; and (d)
design, engineering or other services that are covered by the Global Terms.
"Ford Tier 1 Supplier" also includes a supplier who directly provides the
foregoing types of goods and services to AAI relating to vehicles that are sold
under the Ford, Lincoln or Mercury brand.
"GLOBAL TERMS" means the Ford Production Purchasing Global Terms and Conditions
(PPGTC Jan. 1, 2004) and any revisions made by Ford to the same.
"GOOD CAUSE" means:
(i) A significant quality or delivery issue for a given Component; or
(ii) A unilateral upward re-pricing of the applicable Component (including,
without limitation, uncompetitive pricing by Visteon for Design
Changes to the Component), excluding mutually agreed price increases;
or
(iii) A default, within the prior twelve months, of a commitment by Visteon
to adhere to a Competitive Gap Closure Plan identified on Exhibit 3
for a given Component; or
(iv) A material default by Visteon under the terms of a Purchase Order or
Long Term Supply Agreement with respect to a given Component.
"LONG TERM SUPPLY AGREEMENT" means a multiple-year contract with a supplier
committing Ford to procure and the supplier to supply goods or services for a
specified time period on specified terms.
"MASTER AGREEMENT" means the collective bargaining agreement and all supplements
thereto between Ford and the UAW dated September 15, 2003, as well as any
successor agreement (and supplements thereto) to such collective bargaining
agreement entered into prior to the expiration of this Agreement.
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"MASTER AGREEMENT PLANT" means a facility where some or all of the hourly
employees working there are represented by the UAW under the Master Agreement.
"NEWCO" means Automotive Components Holdings, LLC (f/k/a VFH Holdings, LLC) and
its Affiliates.
"NEWCO - VISTEON PSA" means the Purchase and Supply Agreement Regarding Sales of
Components from Automotive Components Holdings, LLC to Visteon Corporation
between Automotive Components Holdings, LLC (f/k/a VFH Holdings, LLC) and
Visteon dated as of September 30, 2005.
"NON-DEFAULTING PARTY" has the meaning specified in Section 8.1.
"NORTH AMERICA" means Canada, Mexico and the United States.
"PARTY" or "PARTIES" has the meaning specified in the opening paragraph of this
Agreement.
"PERSON" means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any department, agency
or political subdivision thereof.
"PURCHASE ORDER" means a Purchase Order (as defined in the Global Terms) issued
for Components, except in regard to the tooling referenced in Section 5.2, in
which case it also refers to the Purchase Order (as defined in the Global Terms)
issued for such tooling.
"SERVICE PARTS" means parts, components and systems that Ford or its Related
Companies (as defined in the Global Terms), including, without limitation, FCSD,
Ford Component Sales, Ford Racing or Ford Power Products, may offer for resale
to authorized Ford, Lincoln, or Mercury vehicle dealers and others as service
parts or replacement parts or accessories. By way of illustration, the term
"Service Parts" includes both those parts, components and systems that are an
exact match of a part, component or system that is sold to Ford or such of its
Related Companies for use in production of vehicles as well as Component Parts.
For the purposes of this definition: "COMPONENT PART" means a Service Part that
is a component of a larger assembly or system.
"SOURCE" means the awarding of a Target Agreement or a Sourcing Agreement with
Pricing as to a Component for an estimated program volume over a specified
number of years. The term "Source" does not include the issuance of a Sourcing
Agreement with Preliminary Targets or a Sourcing Agreement without Pricing.
"SOURCING AGREEMENT" means an agreement that may be entered into before a
Purchase Order is issued to advise the supplier that Ford intends to Source
goods or services to such supplier assuming that the requirements of the
Sourcing Agreement are met. There are three types of Sourcing Agreements:
Sourcing Agreements with Pricing, Sourcing Agreements with Preliminary Targets,
and Sourcing Agreements without Pricing.
"TARGET AGREEMENT" has the meaning specified in the Global Terms.
"TARGET AGREEMENT TURNOVER" has the meaning specified in Section 3.1.
"TIER 2 COMPONENTS" means all motor vehicle related parts, components and
systems produced by Visteon or its wholly-owned subsidiaries in North America
that are supplied by Visteon or its wholly-owned subsidiaries in North America
to Ford Tier 1 Suppliers (including, without limitation, Newco) where such
components are ultimately sold to Ford, its wholly-owned subsidiaries, or AAI
for use in Ford, Lincoln and Mercury-branded vehicles. Service Parts are not
Tier 2 Components for the purposes of this Agreement.
"TOTAL FROZEN TURNOVER" has the meaning specified in Section 3.1.
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1.2 Subject to Section 13.3, except in regard to the identification of the
Parties to this Agreement above, the definitions of Components and Tier 2
Components in Section 1.1, and where the context clearly requires otherwise, a
reference in this Agreement to "Ford" includes Ford and its applicable
Affiliates, and to "Visteon" includes Visteon and its applicable Affiliates.
2. PURCHASE AND SUPPLY COMMITMENTS
2.1 Existing Agreements. (a) Subject to the terms and conditions of this
Agreement, Visteon and Ford each shall, during the term of this Agreement,
continue to honor the terms and conditions of all Existing Agreements regarding
the purchase and sale of Components.
(b) Except as modified or supplemented under this Agreement, the Global Terms:
(i) apply to each Existing Agreement (other than Sourcing Agreements with
Pricing or Target Agreements, in regard to which the Global Terms will apply to
any Purchase Orders or Long Term Supply Agreements issued pursuant to such
Sourcing Agreements with Pricing or Target Agreements), except to the extent
that such Existing Agreement specifically states otherwise; and (ii) will apply
to all other Purchase Orders and Long Term Supply Agreements issued by Ford to
Visteon for Components. In the event of a conflict between the terms of an
Existing Agreement and this Agreement, then the terms of this Agreement shall
control.
2.2 Expiration of Term or Cessation of Existing Business Designation. Upon the
termination or expiration of this Agreement, or when any Components that are
Existing Business cease to be designated as Existing Business as provided for
under this Agreement, Ford's and Visteon's rights and obligations regarding the
purchase and sale of the Components shall be as specified under the applicable
Purchase Order or Long Term Supply Agreement, including the Global Terms, for
such Components (without regard to any amendment or supplement to the same
provided for under this Agreement, but subject to Section 11 below).
2.3 Service Parts. The Parties' rights and obligations relating to the purchase
by Ford from Visteon, and supply by Visteon to Ford, of Service Parts will be as
set forth in the applicable purchase order from Ford to Visteon relating to such
Service Parts (including, without limitation, that relating to the production
end-item [to Ford] part, component, or material to which they relate) and will
be unaffected by this Agreement (except as provided for in Section 13.12 below).
2.4 Ford Actions Regarding Ford-Directed Tier 2 Components During Term. Subject
to Section 2.5 below, Ford may not direct the Ford Tier 1 Supplier (which may
be, without limitation, Newco) relating to a Ford-Directed Tier 2 Component to
terminate its purchases of such Ford-Directed Tier 2 Component from Visteon
during the term of this Agreement, except Ford may, at its option, do so if: (i)
Visteon fails to comply with the Competitive Gap Closure Plan set forth in
Exhibit 3 relating to such Ford-Directed Tier 2 Component or to provide the
productivity price reductions for such Ford-Directed Tier 2 Component required
under Section 3 below; or (ii) Ford would otherwise have the right to terminate
a Purchase Order issued by Ford directly to Visteon for such Ford-Directed Tier
2 Component under this Agreement, if such Ford-Directed Tier 2 Component were a
Component under this Agreement, a Purchase Order had been issued by Ford
directly to Visteon for it, and such Purchase Order was an Existing Agreement
under this Agreement.
2.5 Ford-Directed Audio Components. Notwithstanding any other term or condition
of this Agreement, any audio parts or components which are Ford-Directed Tier 2
Components ("FORD-DIRECTED AUDIO COMPONENTS") shall cease to be covered under
Section 2.4 above as of December 31, 2006. Visteon shall have no obligation to
provide Ford with productivity price reductions for Ford-Directed Audio
Components under this Agreement after such date, and Ford may, at its option,
freely direct the applicable Ford Tier 1 Supplier (including, without
limitation, Newco) to cease purchasing Ford-Directed Audio Components from
Visteon after such date; provided, however, that nothing in this Section 2.5
shall limit or affect any rights Visteon may have to submit a cancellation claim
relating to any such action by Ford.
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3. PRICING
3.1 Productivity Price Reductions. (a) Visteon shall reduce the prices for all
Components included in the calculation of Ford Carryover Frozen Turnover (as
described below), as well as for all Tier 2 Components (except for Ford-Directed
Audio Components after December 31, 2006, as described in Section 2.5 above),
beginning on the date of this Agreement through December 31, 2008 by the
following percentages (such reductions will be made effective as of January 1 of
the applicable calendar year as described in Subsection 3.2 below):
Calendar Year 2005 2006 2007 2008
------------- ---- ---- ---- ----
Percentage *** *** *** ***
Reduction
For a given calendar year, the aggregate productivity price reduction for all
Components included in the calculation of Ford Carryover Frozen Turnover will be
calculated by applying the applicable Percentage Reduction for such calendar
year against the "Ford Carryover Frozen Turnover." The "Ford Carryover Frozen
Turnover" shall be equal to the Total Frozen Turnover, less the Target Agreement
Turnover, less the Ford Buy Turnover, less any Components excluded from the
calculation of the Ford Carryover Frozen Turnover as described in Section 3.1(b)
below. The following definitions shall apply to this calculation:
"Total Frozen Turnover" shall be equal to the total projected sales of
Components by Visteon to Ford using Ford's budgeted volume, mix and rates
assumptions for the applicable calendar year.
"Target Agreement Turnover" means that portion of the Total Frozen Turnover for
Components that will be launched during the applicable calendar year where Ford
and Visteon have entered into signed Target Agreements.
"Ford Buy Turnover" means that portion of the Total Frozen Turnover for which
Ford has negotiated the price on behalf of Visteon (except for parts,
components, or materials supplied by Newco to a Visteon facility for which Newco
is obligated to pay productivity under the Newco - Visteon PSA). All
productivity price reductions negotiated by Ford with respect to such portion of
the Total Frozen Turnover will be flowed through, unaltered, to Ford and
reflected in a corresponding adjustment to the price payable by Ford for the
Components to which such portion of the Total Frozen Turnover relates.
The productivity price reductions for 2005 described above will not be
duplicative of or in addition to any productivity price reductions implemented
by Ford for 2005 for the applicable Components prior to the date of this
Agreement pursuant to the 2003 Agreement. The productivity price reductions
above for Tier 2 Components are not duplicative of or in addition to those that
apply to the same Tier 2 Components under the Purchase and Supply Agreement
Regarding Sales of Components from Visteon Corporation to Automotive Components
Holdings, LLC between Visteon and Newco dated as of September 30, 2005.
(b) Where Ford and Visteon agree (or have agreed) in writing on different
productivity price reductions than those specified above, such separate
agreements shall supersede the provisions of Subsection 3.1(a) if such different
price reductions replace (and are not incremental to) the price reductions
required under Subsection 3.1(a). In these cases, the Components to which such
different price reductions apply will be excluded from the calculation of Ford
Carryover Frozen Turnover. If such different price reductions are incremental to
(and do not replace) the price
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reductions required under Subsection 3.1(a), the Components to which such
incremental price reductions apply will be included in the calculation of Ford
Carryover Frozen Turnover and the incremental price reductions will apply in
addition to those required under Subsection 3.1(a). Exhibit 3 contains a list of
the Components for which separate agreements exist as of the date of this
Agreement. The list describes separate and incremental agreements the Parties
have identified as of the date of this Agreement, but is not to be considered an
exhaustive list.
3.2 All productivity price reductions will be retroactive to January 1 of the
applicable year. If the productivity price reductions are not processed prior to
the end of any calendar quarter during the applicable year, Visteon shall pay to
Ford a lump sum equal to seventy five percent (75%) of a reasonable estimate of
the effect of the productivity price reductions based on Visteon's shipments of
Components to Ford during such calendar quarter. Such amount shall be paid on or
before the last day of such calendar quarter. The Parties acknowledge that once
the actual productivity price reductions are determined, they will be entered
into a system that will result in productivity price reductions retroactive to
January 1 of the applicable year; therefore, if Visteon has made a lump sum
payment for any calendar quarter and Ford later receives a retroactive price
adjustment, Ford will reimburse Visteon any amounts that are charged twice to
Visteon. For the avoidance of doubt, Visteon's lump-sum payment of 75% of such
estimated amount will not affect Ford's right to receive 100% of the
productivity price reduction due for the applicable calendar year.
3.3 In regard to any Design Change to any parts, components, or systems supplied
by Newco to Visteon for inclusion in Components or Tier 2 Components, the price
increase or decrease, as approved by Ford, to such parts, components, or systems
resulting from such Design Change will be flowed through, unaltered, to Ford and
reflected in a corresponding adjustment to the price payable by Ford for such
Components or Tier 2 Components. Sec. 9.03 of the Global Terms and the Supplier
Frequently Asked Question dated September 30, 2005 on Sec. 9.03 issued by Ford
will apply in regard to any such Design Change requested by Ford (i.e., Visteon
will promptly notify Ford in a Written Notice as defined in the Global Terms if
the proposed change will affect cost or timing and provide substantiation of its
claim, and, as long as the claim is adequately substantiated, Ford will make an
equitable adjustment to the price or delivery schedules, and the adjustment will
be negotiated in good faith with Visteon).
3.4 In regard to the D-series twin sheet fuel tanks produced at Visteon's
Chicago VMAP facility and supplied by such facility to Ford ("TANKS"), Ford will
compensate Visteon $15 million on an annualized basis, which shall be
incremental to the amounts otherwise due and owing pursuant to any Purchase
Orders issued by Ford to Visteon for such Tanks, for as long as the production
part (i.e., non-Service Part) Tanks are manufactured at Visteon's Chicago VMAP
facility and supplied by such facility to Ford during the term of this
Agreement, in accordance with the following:
(a) For each full calendar quarter after the date of this Agreement during
which the Tanks are manufactured at Visteon's Chicago VMAP facility and
supplied by such facility to Ford, the payment will be $3.75 million.
Payments will be made on a quarterly basis, and will be due to Visteon on
the last business day of such quarter; provided, however, that if the date
of this Agreement is not within 5 business days before or after the
beginning of a quarter, the first payment will be prorated based on the
following formula: $3.75 million /90 days * number of days between the date
of this Agreement and the earlier of (a) the last day of such quarter or
(b) the end manufacturing and supply date (as described in Section 3.4(b)
below).
(b) If the manufacture and supply to Ford of the Tanks by Visteon's Chicago
VMAP facility ceases prior to the completion of a quarter, the final
payment will be prorated to reflect the number of days the Tanks are
manufactured and supplied to Ford during that quarter. Calculations will be
based on the following formula: $3.75 million /90 days * number of days the
Tanks were manufactured and supplied to Ford during that quarter. The end
manufacturing and supply date will be the date that Ford receives the last
Tank supplied by Visteon's Chicago VMAP facility.
3.5 In the event that Newco amends a Purchase Order or Long Term Supply
Agreement for an Assigned Component as described in Section 3.1(d) of the Newco
- Visteon PSA, the Matched Ford Price for the affected Assigned
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Component as of 12/31/08 will be flowed through, unaltered, to Ford and
reflected in a corresponding adjustment to the price payable by Ford for the
Components containing such Assigned Component. For the purposes of this Section
3.5, "Purchase Order," "Long Term Supply Agreement," "Assigned Component," and
"Matched Ford Price" are as defined in the Newco - Visteon PSA.
4. PRICE GAP CLOSURE
All Competitive Gap Closure Plans in effect as of May 1, 2005 shall remain
in effect as specified therein. "Competitive Gap Closure Plan" means, for
purposes of this Agreement, the plans agreed between Ford and Visteon and listed
on Exhibit 3. Visteon shall have no further obligation to provide Competitive
Gap Closure Plans in relation to any Existing Business beyond the plans
identified on Exhibit 3; provided, however, that nothing in this Agreement
prohibits Ford from requesting that Visteon agree to any other or additional gap
closure plan, or any productivity price reduction beyond that provided for in
Section 3.1, in regard to any Components (whether Existing Business or
otherwise).
5. PAYMENT TERMS
5.1 Payment terms for Components received at Ford facilities in the United
States, and for tooling received at Visteon facilities (or a Visteon supplier's
facilities) in the United States, will be:
(a) For the period beginning on the date of this Agreement through
December 31, 2006, payment terms shall average 22 days after the entry
date of the Components or tooling.
(b) For the period beginning January 1, 2007 through December 31, 2007,
payment terms shall average 26 days after the entry date of the
Components or tooling.
(c) For the period beginning January 1, 2008 through December 31, 2008,
payment terms shall be net 12th or 26th prox with an average days
payable of 34.5 days meaning that if the entry date of components or
tooling occurs from the first day through the 15th day of a month,
payment will be made by the 12th of the following month and if the
entry date of components or tooling occurs from the 16th day through
the last day of a month, payment will be made by the 26th of the
following month.
(d) Effective January 1, 2009, Visteon will be paid in accordance with
Ford's standard payment terms in effect at that time.
5.2 All Components and tooling received at Ford facilities outside of the United
States will have the payment terms specified in the applicable Purchase Order.
5.3 As used in this Article 5, the term "tooling" refers only to tooling owned
by Ford and funded by Ford in an up-front payment (rather than in the piece
price) that is used for the production of Components and which is located in
Visteon facilities or Visteon's suppliers' facilities in the United States.
6. RIGHT TO TERMINATE OR NOT RENEW
6.1 (a) Notwithstanding any term or condition of this Agreement or of any
Purchase Order, Long Term Supply Agreement, Sourcing Agreement, or Target
Agreement, or any other termination rights Ford may have, Ford may terminate or
not renew, in whole or in part, an Existing Agreement relating to a Component
during the term of this Agreement only:
(1) for a Change of Control in accordance with Section 8.3(b) and (c)
below;
(2) in accordance with Section 26.05 (Excusable Delay) of the Global
Terms;
(3) as a result of program cancellation (as described in Section 29 of the
Global Terms);
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(4) as a result of an assignment by Visteon in breach of Section 42.04 of
the Global Terms;
(5) for Good Cause with respect to such Component;
(6) for a default by Visteon in the performance of any obligation or in
the observance of any restriction described in Section 8.1(a) below
that is not fully cured within 90 days after written notice thereof
has been given by the Non-Defaulting Party;
(7) as a result of the termination of this Agreement under Section 8; or
(8) in regard to Existing Agreement(s) for Fuel Delivery Modules (FDMs)
supplied by Visteon's Bedford facility to Ford, in the event that the
FDM business is transferred to a Master Agreement Plant as described
in Section 10 below.
Nothing in this Agreement shall in any way mitigate or affect any of Ford's
rights to: (i) terminate or not renew any Purchase Order, Long Term Supply
Agreement, or other agreement other than an Existing Agreement (i.e., a Purchase
Order, Long Term Supply Agreement, or other agreement relating to Components
other than Existing Business); or (ii) direct a Ford Tier 1 Supplier (which may
be, without limitation, Newco) relating to a Ford-Directed Tier 2 Component to
terminate its purchases of such Ford-Directed Tier 2 Component from Visteon
during the term of this Agreement, except as specifically provided for in
Section 2.4 and 2.5.
(b) In regard to any termination or non-renewal described in 6.1, the terms of
the applicable Existing Agreement will govern the right to notification,
remediation and compensation, if any. In this regard, a termination by Ford
under Section 6.1(a)(1) above will be treated as a termination under Section
26.03 of the Global Terms, under Sections 6.1(a)(4) through (7) above will be
treated as a termination under Section 26.01 of the Global Terms, and a
termination by Ford under Section 6.1(a)(8) above will be treated as a
termination under Section 27.01 of the Global Terms. In no event will
termination or non-renewal by Ford made in accordance with this Agreement
(including, without limitation, under this Section 6.1 or Section 8) be
considered a default or breach by Ford under any Existing Agreement or other
agreement (including, without limitation, any Purchase Order or Long Term Supply
Agreement) between Ford and Visteon. For the avoidance of doubt, in the event of
a termination by Ford under Section 6.1(a)(3) above, Visteon shall have a right
to submit a cancellation claim to Ford as provided for under Sec. 29.02 of the
Global Terms.
6.2 Subject to Section 6.1(b), Ford's right to terminate or not renew an
Existing Agreement as described in this Article 6 is without prejudice to either
Party for any other right or remedy permitted under this Agreement or the
applicable Existing Agreement, including, without limitation, any right to
recover Damages for default.
6.3 Notwithstanding any term or condition of this Agreement, any Purchase Order
or Long Term Supply Agreement, or any other termination rights Visteon may have,
Visteon:
(a) may terminate or not renew an Existing Agreement for a Component which
does not include any parts, components, or systems supplied by Newco
in accordance with the Purchase Order or Long Term Supply Agreement
(and Global Terms) covering such Component; and,
(b) may not, during the term of this Agreement, terminate or not renew an
Existing Agreement for a Component which includes any parts,
components, or systems supplied by Newco without Ford's prior written
consent, except if Ford is in material default of the applicable
Purchase Order or Long Term Supply Agreement covering the Component
and Ford has failed to materially cure such default within 60 days
after written notice of such default is provided by Visteon to Ford;
provided that if such default (except for non-payment by Ford) cannot
be cured within such 60 days, then Ford shall have a reasonable period
to cure the default (not to exceed an additional 90 days), during
which period Ford shall at all times diligently pursue a cure.
7. PARTICIPATION IN FORD RAW MATERIALS PROGRAMS AND DIRECTED SOURCING
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7.1 To the extent consistent with all applicable laws and regulations and
consistent with the terms of all Existing Agreements, Visteon will participate
in Ford's raw materials supply system or directed buy programs for raw materials
as amended from time to time, in the same manner as other Ford Tier 1 Suppliers.
In the event that such participation by Visteon would or may conflict with
existing contractual obligations of Visteon, Ford and Visteon will discuss in
good faith how to address the matter.
7.2 Visteon will participate in new Directed Tier 2 Sourcing for Existing
Business if and as requested by Ford after the date of this Agreement. Any price
reductions or increases approved by Ford for parts, components, or materials of
Components subject to such new Directed Tier 2 Sourcing will be flowed through,
unaltered, to Ford and reflected in a corresponding adjustment to the price
payable by Ford for such Components. If any such new Directed Tier 2 Sourcing
affects Visteon's cost or timing (aside from the cost of the newly-directed
parts, components, or materials), Sec. 9.03 of the Global Terms and the Supplier
Frequently Asked Question dated September 30, 2005 on Sec. 9.03 issued by Ford
will apply (i.e., Visteon will promptly notify Ford in a Written Notice [as
defined in the Global Terms] if the proposed new Directed Sourcing will affect
its cost or timing and provide substantiation of its claim, and, as long as the
claim is adequately substantiated, Ford will make an equitable adjustment to the
price or delivery schedules, and the adjustment will be negotiated in good faith
with Visteon).
8. DEFAULT
8.1. A Party (a "NON-DEFAULTING PARTY") may give notice to the other Party (the
"DEFAULTING PARTY"), upon occurrence of any of the following events, any one of
which will be considered to be an "EVENT OF DEFAULT":
(a) Default by a Party. Any default by the Defaulting Party in the
performance of any obligation or in the observance of any restriction
in this Agreement, which default may not be cured, or is not
effectively cured, after a period of 30 days after written notice
thereof has been given by the Non-Defaulting Party; provided that if
such default cannot be cured within 30 days, then the Defaulting Party
shall have a reasonable period to cure the default (not to exceed 90
days), during which period the Defaulting Party shall at all times
diligently pursue a cure;
(b) Termination of Existence Initiated by a Party. The Defaulting Party
commences any Proceeding to wind up, dissolve, or otherwise terminate
its legal existence;
(c) Termination of Existence Initiated by Another Person. Any proceeding
is commenced against the Defaulting Party that seeks or requires the
winding up, dissolution, or other termination of its legal existence,
unless the proceeding is defended or contested in good faith by the
Defaulting Party within 30 days of the commencement of the proceeding
in a manner that stays it and such defense or contest is pursued
diligently thereafter;
(d) Bankruptcy. Either (a) the Defaulting Party seeks relief by any
proceedings of any nature under any applicable laws for the relief of
debtors; or (b) the institution against the Defaulting Party of a
proceeding under any applicable bankruptcy or similar law of any
jurisdiction in which the Defaulting Party carries on its business,
unless the proceeding is defended or contested in good faith by the
Defaulting Party within 15 days of the commencement of the proceeding
in a manner that stays the proceedings and then only so long as such
defense or contest is pursued diligently thereafter;
(e) Appointment of a Receiver. The appointment of a receiver,
receiver-manager, trustee, custodian or like officer for all or a
substantial part of the business or assets of the Defaulting Party,
unless the appointment is defended or contested in good faith by the
Defaulting Party within 30 days of the commencement of the appointment
in a manner that stays the appointment and then only so long as such
defense or contest is pursued diligently thereafter; or
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(f) Assignment for Benefit of Creditors. The Defaulting Party makes an
assignment of a substantial part of its assets for the benefit of its
creditors.
8.2. Upon the occurrence of an Event of Default, the Non-Defaulting Party may
elect one or more of the following remedies:
(a) Subject to Section 8.4 below, termination of this Agreement, in whole
or in part, and any such termination shall not be deemed a waiver or
release of, or otherwise prejudice or affect, any rights, remedies or
claims, whether for Damages or otherwise, which the Non-Defaulting
Party may then possess under this Agreement or which arise as a result
of such termination; provided, however, that the Non-Defaulting Party
may only elect to terminate this Agreement (in whole or in part) for
an Event of Default under Section 8.1(a) above (Default by a Party) if
the default by the Defaulting Party under Section 8.1(a) is a material
default of a material provision of this Agreement; and
(b) Set off and recoupment against sums owed by the Non-Defaulting Party
or one of its Affiliates to the Defaulting Party or one of its
Affiliates any amounts for which the Non-Defaulting Party determines
in good faith that the Defaulting Party or one of its Affiliates is
liable to the Non-Defaulting Party or one of its Affiliates under this
Agreement or any Purchase Order; and
(c) Recovery of Damages arising from the Default.
8.3 (a) In addition to any termination rights Ford may have under this Agreement
or applicable law, Ford may terminate this Agreement in the following events:
(i) a Change of Control of Visteon occurs; (ii) all of the Existing Agreements
become subject to termination or cancellation for Good Cause; or (iii) all of
the Existing Agreements are terminated or not renewed in accordance with this
Agreement.
(b) As used in this Section 8.3, the term "CHANGE OF CONTROL" means (i) a
liquidation or dissolution of Visteon; (ii) the sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the assets of Visteon and its subsidiaries, taken as
a whole; (iii) a merger, consolidation, share exchange, business combination or
similar extraordinary transaction as a result of which the persons possessing,
immediately prior to the consummation of such transaction, beneficial ownership
of the voting securities of Visteon entitled to vote generally in elections of
directors of Visteon, cease to possess, immediately after consummation of such
transaction, beneficial ownership of voting securities entitling them to
exercise at least 50% of the total voting power of all outstanding securities
entitled to vote generally in elections of directors of Visteon (or, if not
Visteon, the surviving entity resulting from such transaction); or (iv) a
transaction or series of transactions (including by way of merger,
consolidation, sale of stock or otherwise) the result of which is that any
Person or "group" (as defined in Section 13 of the Securities Exchange Act of
1934) becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 promulgated under the Securities Exchange Act of 1934), directly or
indirectly, of more than 50% of the voting power of the outstanding voting stock
of Visteon.
(c) Notwithstanding Section 6.1(a)(1) or 8.3(a) above, in the event of an
occurrence described in Section 8.3(b)(ii), (iii), or (iv) above, Ford may not
terminate an Existing Agreement relating to a Component during the term of this
Agreement, or terminate this Agreement, as a result of a Change of Control of
Visteon unless and until it has made a good faith effort to discuss (if Visteon
requests, in writing, that Ford have such discussion) the potential continuation
of the applicable Existing Agreement, in regard to Section 6.1(a)(1), or of this
Agreement, with: (1) the transferee of all, or substantially all, of the assets
of Visteon and its Subsidiaries described in Section 8.3(b)(ii); (2) the Person
Controlling Visteon (if any) as a result of the merger, consolidation, share
exchange, business combination or similar extraordinary transaction described in
Section 8.3(b)(iii) (for this purpose, "Control" will be as defined in the
definition of the term "Affiliate" in Section 1.1 above); or, (3) the Person or
"group" that will become the "beneficial owner" of more than 50% of the voting
power of the outstanding voting stock of Visteon described in Section
8.3(b)(iii).
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8.4 A Non-Defaulting Party intending to terminate this Agreement pursuant to
this Article 8 as a result of an Event of Default occurring under Subsections
8.1(a) or (b) shall first notify the Defaulting Party of the grounds for the
intended termination. If the Defaulting Party fails to remedy such grounds for
termination within sixty (60) days of such notice (or any longer period of time
as mutually agreed by the Parties), then the Non-Defaulting Party may terminate
this Agreement effective upon notice to the Defaulting Party without the need
for any judicial action.
8.5 The provisions of this Article 8 are without prejudice to any other rights
or remedies either Party may have by reason of the Event of Default of the other
Party; provided, however, that the Parties' rights to terminate this Agreement
shall in all cases be as described in this Article 8.
8.6 In the event a competitor of Ford in the business of manufacturing motor
vehicles acquires a significant interest in Visteon (directly or indirectly),
Visteon will provide Ford with reasonable assurances that Visteon will utilize
its best efforts to preserve the confidentiality of all information related to
products produced for Ford and Ford product programs.
9. TERM
9.1 The term of this Agreement shall commence on the date of this Agreement and
continue through December 31, 2008, unless terminated earlier in accordance with
the terms and conditions of this Agreement.
9.2 The 2003 Agreement shall be terminated as of the date of this Agreement and,
as such, all obligations outstanding under the 2003 Agreement shall be
terminated as of such date.
10. TRANSFER OF FDM BUSINESS
If requested by Ford, Visteon will move at least 450 Fuel Delivery Module (FDM)
jobs to a Master Agreement Plant. Ford and Visteon will diligently negotiate and
agree upon the plan and schedule for the movement of such jobs. Over time, it is
anticipated that all FDM production would be relocated from Visteon to a Master
Agreement Facility.
11. CONFLICT WITH OTHER AGREEMENTS
Nothing in this Agreement, any Existing Agreement, or in any Purchase Order,
Long Term Supply Agreement, Target Agreement, or Sourcing Agreement for
Components or the Global Terms affects, limits, or supersedes in any way any
Master Transaction Agreement or any rights, obligations, or limitations of
liability of either of Newco or Visteon under any Master Transaction Agreement,
including, without limitation, any limitations of liability of Newco or Visteon
relating to any Components (or parts, components, or materials thereof)
contained in any Master Transaction Agreement, or any rights relating to
intellectual property, or responsibility for infringement of intellectual
property rights, contained in any Master Transaction Agreement. In the event of
any conflict between the provisions of this Agreement and any Master Transaction
Agreement, the Master Transaction Agreement shall prevail. This Section 11 will
survive the termination or expiration of this Agreement. Without limiting the
generality of the foregoing, the Parties agree that nothing in this Agreement,
or in any Purchase Order, Long Term Supply Agreement, Sourcing Agreement, or
Target Agreement, shall in any respect limit or restrict Visteon's obligations
with respect to liabilities retained by Visteon under Section 2.04(iii) of the
Contribution Agreement.
For the purposes of this Section 11, "Master Transaction Agreements" means the
following, collectively: All of the agreements referenced in Section 8 of the
Master Agreement by and between Ford and Visteon dated as of September 12, 2005,
and, for the avoidance of doubt, the Intellectual Property License Agreement
dated as of October 1, 2005 between Visteon, Visteon Global Technologies, Inc.,
and Ford.
12. QUALITY IMPROVEMENT INITIATIVES & WARRANTY SHARING AGREEMENT
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(a) Without limiting or expanding any of the terms and conditions of the
Global Terms, to insure a robust quality improvement process, Visteon will
participate in Ford quality improvement programs and Ford can require Visteon to
achieve reasonable increased quality standards, consistent with the requirements
for other Ford Tier 1 Suppliers, as they may exist from time to time. Without
limiting the foregoing (including the Global Terms), all Visteon facilities that
produce Components for Ford shall achieve and retain Q1 status and shall also
maintain ISO9000 compliance during the terms of any applicable Purchase Order.
(b) It is Ford's intent that Visteon's Q1 status will not be negatively
impacted by quality problems determined to have been caused by Newco. Towards
this end:
1. Visteon will collect, compile and provide to Ford the data on Newco
performance collected at Visteon's manufacturing location. The data
collected and provided to Ford by Visteon will be the data collected
by Visteon's current quality operating system.
2. Visteon has the right to contest the consequences of inclusion of
Newco performance in Visteon SIM (Supplier Improvement Metrics) data
input by Ford plants.
3. If the capability to maintain separate quality and SIM data for
Newco-supplied parts, components or materials becomes available in the
future, Ford will notify Visteon and Newco.
Except as otherwise expressly agreed upon by Ford in writing, this Section
12(b) will apply only in regard to parts, components, or materials supplied by
Newco to Visteon, and will not apply to any parts, components, or materials
supplied by a Person other than Newco, including, without limitation, any buyer
or transferee of the applicable Newco facility supplying the parts, components,
or materials.
This Section 12(b) does not, however, relieve Visteon of its
responsibilities for the quality of parts, components, or materials supplied by
Newco to Visteon under the applicable Ford Purchase Order or Long Term Supply
Agreement or under Q1, including, for example and without limitation, for
monitoring the incoming quality of such parts, components, or materials and
taking any necessary containment actions, nor does this section reduce or
mitigate Visteon's obligation under Section 2.04(iii) of the Contribution
Agreement.
(c) The warranty sharing program in effect as of the date of this Agreement
is contained in that certain letter dated December 13, 2002 from Xx. Xxxx
Xxxxxxxxxx of Visteon to Mr. Xxx Xxxxxx of Ford. The Parties acknowledge that
certain modifications will need to be made to such letter in light of the
overall restructuring of Visteon operations giving rise to this Agreement. The
Parties will discuss such modifications in good faith.
13. GENERAL PROVISIONS
13.1 No Agency. This Agreement does not constitute either Party the agent or
legal representative of the other Party. Neither Party is authorized to create
any obligation on behalf of the other Party.
13.2 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 e-mail is requested
and received) and shall be given,
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if to Ford, to:
Ford Motor Company
Office of the Secretary
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
E-mail: xxxxx@xxxx.xxx
with a copy to:
Ford Motor Company
Office of the General Counsel
One American Road
320 World Headquarters
Dearborn, Michigan 48126
Attention: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
E-mail: xxxxx@xxxx.xxx
if to Visteon, to:
Visteon Corporation
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, General Counsel
Facsimile No.: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
or such other address, facsimile number or e-mail address as such Party may
hereafter specify for the purpose by notice to the other Parties 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.
13.3 Subsidiaries and Affiliates. Subsidiaries and other Affiliates of Ford and
Visteon are bound by the provisions herein to the extent that such subsidiaries
or Affiliates produce Components supplied to Ford or its Affiliates (in regard
to Visteon and its Affiliates) or purchase Components supplied by Visteon or its
Affiliates (in regard to Ford and its Affiliates); provided, that AAI and
Affiliates of Ford shall be bound by this Agreement only to the extent that
Components supplied to them are purchased for use in a Ford, Lincoln or Mercury
brand vehicle. Each Party warrants and represents to the other Party that it has
the authority to bind its Affiliates to this Agreement as described in this
Section 13.3.
13.4 Amendments and Waivers.
(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.
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(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.
13.5 Entire Agreement. Subject to Section 11, this Agreement supersedes any
prior agreements between the Parties concerning the subject matter herein.
13.6 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 neither Party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other Party hereto, except as expressly
provided for otherwise in this Agreement.
13.7 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.
13.8 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. The Parties exclude the application of the
1980 United Nations Convention on Contracts for the International Sale of Goods,
if otherwise applicable.
13.9 Disputes. If a dispute arises between the Parties relating to this
Agreement, the following shall be the sole and exclusive procedure for enforcing
the terms hereof; provided, however, that a Party may seek injunctive relief
from a court where appropriate for the purpose of maintaining the status quo
while this procedure is being followed:
(i) The Parties promptly shall hold a meeting of senior executives with
decision-making authority 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.
(ii) If the parties are unable to negotiate a mutually satisfactory
resolution as provided above, then upon request by either Party, the
matter 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.
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(iii) 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 13.9 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.
13.10 Counterparts; Effectiveness; Third Party Beneficiaries. This Agreement may
be signed in 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 as of the date first set forth above 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). Except as specifically
provided for herein, 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 13.6.
13.11 Right to Audit. Sections 32.01, 32.02, and 32.06 of the Global Terms shall
apply to this Agreement. For the purposes of applying such Sections of the
Global Terms, the terms "Buyer," "Supplier," and "Purchase Order" as used
therein shall mean Ford, Visteon, and this Agreement, respectively.
13.12 Purchase of Component Parts (Service Parts) Directly from Visteon's
Supplier. Ford may, at its option, (a) purchase any Component Parts directly
from Visteon's supplier, or (b) purchase any Component Parts from Visteon and
receive shipment directly from Visteon's supplier, rather than from Visteon. If
Ford elects to purchase directly from Visteon's supplier (Section 13.12(a)
above), then (i) Visteon will no longer have a supply obligation with respect to
such Component Parts to Ford; and (ii) Ford must purchase all such Component
Parts directly from such supplier that are produced at the applicable ship
point. "Component Parts" are Service Parts that are components of larger
assemblies or systems.
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IN WITNESS WHEREOF, Ford and Visteon have caused this Agreement to be duly
executed in multiple counterparts by their duly authorized representatives.
VISTEON CORPORATION FORD MOTOR COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Title: Executive Vice President and Title: Executive Vice President and
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Chief Financial Officer Chief Financial Officer
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Date: October 1, 2005 Date: October 1, 2005
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