10000025923

IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION,
et al.1 Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 05-55927 (SWR) (Jointly Administered) (Tax Identification #13-3489233) Honorable Steven W. Rhodes
DEBTORS MOTION FOR INTERIM AND FINAL ORDERS APPROVING CUSTOMER AGREEMENT AMONG THE DEBTORS, THEIR PRINCIPAL CUSTOMERS AND JPMORGAN CHASE BANK, N.A. AND RELATED RELIEF The above-captioned debtors (collectively, the Debtors) hereby move the Court (this Motion) for the entry of an interim order, substantially in the form of Exhibit A (the Interim Order), and a final order, substantially in the form of the Interim Order with the requisite conforming changes (the Final Order), approving the customer agreement among the Debtors, the Customers (as defined below) and JPMorgan Chase Bank, N.A., as agent to the senior, secured prepetition lenders and as agent to the senior, secured postpetition lenders (collectively,
The Debtors in the jointly administered cases include: Collins & Aikman Corporation; Amco Convertible Fabrics, Inc., Case No. 05-55949; Becker Group, LLC (d/b/a/ Collins & Aikman Premier Mold), Case No. 05-55977; Brut Plastics, Inc., Case No. 05-55957; Collins & Aikman (Gibraltar) Limited, Case No. 05-55989; Collins & Aikman Accessory Mats, Inc. (f/k/a the Akro Corporation), Case No. 05-55952; Collins & Aikman Asset Services, Inc., Case No. 05-55959; Collins & Aikman Automotive (Argentina), Inc. (f/k/a Textron Automotive (Argentina), Inc.), Case No. 05-55965; Collins & Aikman Automotive (Asia), Inc. (f/k/a Textron Automotive (Asia), Inc.), Case No. 05-55991; Collins & Aikman Automotive Exteriors, Inc. (f/k/a Textron Automotive Exteriors, Inc.), Case No. 05-55958; Collins & Aikman Automotive Interiors, Inc. (f/k/a Textron Automotive Interiors, Inc.), Case No. 05-55956; Collins & Aikman Automotive International, Inc., Case No. 05-55980; Collins & Aikman Automotive International Services, Inc. (f/k/a Textron Automotive International Services, Inc.), Case No. 05-55985; Collins & Aikman Automotive Mats, LLC, Case No. 05-55969; Collins & Aikman Automotive Overseas Investment, Inc. (f/k/a Textron Automotive Overseas Investment, Inc.), Case No. 05-55978; Collins & Aikman Automotive Services, LLC, Case No. 05-55981; Collins & Aikman Canada Domestic Holding Company, Case No. 05-55930; Collins & Aikman Carpet & Acoustics (MI), Inc., Case No. 05-55982; Collins & Aikman Carpet & Acoustics (TN), Inc., Case No. 05-55984; Collins & Aikman Development Company, Case No. 05-55943; Collins & Aikman Europe, Inc., Case No. 05-55971; Collins & Aikman Fabrics, Inc. (d/b/a Joan Automotive Industries, Inc.), Case No. 05-55963; Collins & Aikman Intellimold, Inc. (d/b/a M&C Advanced Processes, Inc.), Case No. 05-55976; Collins & Aikman Interiors, Inc., Case No. 05-55970; Collins & Aikman International Corporation, Case No. 05-55951; Collins & Aikman Plastics, Inc., Case No. 05-55960; Collins & Aikman Products Co., Case No. 05-55932; Collins & Aikman Properties, Inc., Case No. 05-55964; Comet Acoustics, Inc., Case No. 05-55972; CW Management Corporation, Case No. 05-55979; Dura Convertible Systems, Inc., Case No. 05-55942; Gamble Development Company, Case No. 05-55974; JPS Automotive, Inc. (d/b/a PACJ, Inc.), Case No. 05-55935; New Baltimore Holdings, LLC, Case No. 05-55992; Owosso Thermal Forming, LLC, Case No. 0555946; Southwest Laminates, Inc. (d/b/a Southwest Fabric Laminators Inc.), Case No. 05-55948; Wickes Asset Management, Inc., Case No. 0555962; and Wickes Manufacturing Company, Case No. 05-55968.
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the Agents) and authorizing the Debtors to take all actions contemplated thereunder. In support of this Motion, the Debtors respectfully state as follows: Introduction 1. As the Debtors have disclosed to the Court and publicly, to maximize the value of the
Debtors estates and save jobs, the Debtors are pursuing a cooperative sale process, which the Debtors expect will culminate with the confirmation of a plan. In connection with this process, over the last several weeks, the Debtors have worked very hard with the Agents and the Debtors major customers, including DaimlerChrysler Corporation, Ford Motor Company, General Motors Corporation and Auto Alliance International, Inc. (collectively, with their applicable affiliates, the Customers) to negotiate an agreement that will form the basis of a plan. The Debtors are now pleased to report that the parties have successfully negotiated a comprehensive agreement2 that, among other things: (a) provides for a framework to facilitate the orderly sale of a majority of the Debtors businesses with the support of the Agents and the Customers; (b) provides a meaningful opportunity to save thousands of jobs; (c) memorializes an agreement among the Debtors, the Agents and the Customers on the substantive terms of a chapter 11 plan; and, ultimately, (d) provides a clear framework toward a consensual resolution and conclusion to these highly complex cases. Accordingly, the Debtors seek approval of this agreement (together with the exhibits thereto and substantially in the form attached hereto as Exhibit B, the Customer Agreement), which will provide the Debtors with the best available chance to maximize the value of their assets and confirm a chapter 11 plan.
At the time of filing this Motion, the Debtors reached an agreement with DaimlerChrysler Corporation and General Motors Corporation, which are two of the Debtors largest customers, and the Agents. Negotiations were continuing with Ford Motor Company and Auto Alliance International, Inc. Separately, the Debtors have filed a motion requesting that certain exhibits to the Customer Agreement be filed under seal and ordering that future Court-filed documents referring to such exhibits be filed under seal due to the sensitive commercial information in such exhibits.
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Jurisdiction 2. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 1334. This matter
is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 3. 4. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. The statutory bases for the relief requested herein are sections 363(b) and 364 of the
Bankruptcy Code, 11 U.S.C. 101-1330 (the Bankruptcy Code), and Rules 4001 and 9019 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). Background 5. On May 17, 2005 (the Petition Date), the Debtors filed their voluntary petitions for
relief under chapter 11 of the Bankruptcy Code. The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or examiner has been appointed in these cases. On the Petition Date, the Court entered an order jointly administering these cases pursuant to Bankruptcy Rule 1015(b). 6. On May 24, 2005, the United States trustee appointed an official committee of
unsecured creditors pursuant to section 1102 of the Bankruptcy Code (the Committee). Negotiations 7. The Debtors believe that the Customer Agreement provides the best opportunity to
maximize recoveries in light of the constraints under which the Debtors are operating. That is, while the Debtors believe that the sale of the Debtors Carpet & Acoustics business, with its strong fundamental business operations and its consistently positive EBITDA results, will provide the Debtors with significant funds, the Debtors Plastics & Convertibles businesses require additional support from the Customers if the Debtors are to maximize the value of the assets related thereto. 8. The concessions that the Debtors are seeking from the Customers in the
Customer Agreement would allow the Debtors to continue operating their Plastics & Convertibles 3
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business while, at the same time, market certain of these assets to allow them to maximize value, preserve the maximum number of jobs related to these business lines and wind down in an orderly fashion those plants that are not saleable. Without these concessions, however, the Debtors would have to sell assets quickly or not at all, which would undeniably diminish recoveries and create claims against the Debtors by the Customers (for the inevitable consequential breach of the Debtors various contracts with the Customers) that would materially dilute the funds available for distribution to the Debtors creditors.3 9. Moreover, if the Debtors cease operations, it likely would materially disrupt
United States automobile manufacturing on a global basis and cause significant harm to the Customers. In particular, because of the necessary investment of time and money to be able to manufacture parts, in many cases, the Debtors are the only parties capable of producing the parts required by the Customers (most of the top selling automakers in America) to complete their final products for sales to consumers. Further, the Customers do not keep substantial inventories of the products made by the Debtors on hand and, instead, rely on the consistent inflow of such goods on an immediate as-needed basis. Simply, were that flow of parts to stop, in many cases, the Customers would be unable to produce or deliver whole lines of automobiles to the market until there was sufficient time to bring a new supplier up to speed on the needed products consistent with the Customers demanding specifications. The gap in the Customers ability to finish and sell their own products could be catastrophic to the Customers own financial conditions. Consequently, it is essential for both the Debtors and the Customers that the Debtors plants continue to operate.
Such claims, which would likely include breach of postpetition agreements, could constitute administrative expense claims.
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10.
Therefore, to, among other things, accommodate the Debtors continued production
of goods manufactured and produced through their Plastics & Convertibles business, the Debtors, the Agents and the Customers have nearly completed negotiations for the Customer Agreement. Summary of the Significant Terms of the Customer Agreement 11. The significant terms of the Customer Agreement include:4 a. Parties: The parties to the Customer Agreement include (collectively, the Parties): (i) the Debtors and other relevant non-Debtor subsidiaries and affiliates (collectively, with the Debtors, the Supplier), but, for the avoidance of doubt, expressly excluding Collins & Aikman Automotive Hermosillo, S.A. de C.V.; (ii) certain of the Debtors major customers, including (a) General Motors Corporation, for itself and on behalf of GM de Mexico s. de R.L. de C.V. and GM of Canada Limited (collectively, GM), (b) DaimlerChrysler Corporation, for itself, DaimlerChrysler Canada, Inc. and DaimlerChrysler Motor Company, LLC (collectively, DCC), (c) Ford Motor Company (Ford) and (d) Auto Alliance International, Inc.; and (iii) the Agents. Effective Date: Upon this Courts entry of an (i) interim order approving the Customer Agreement (and all exhibits thereto) (the Approval Order) and (ii) order approving the amendment to the Debtors senior, secured postpetition financing agreement allowing for the Debtors to enter into the Customer Agreement, the Customer Agreement will be effective as of November 26, 2006 (the Effective Date). Plan: The Supplier shall file a plan and accompanying disclosure statement that conforms with the terms set forth on an exhibit to the Customer Agreement (the Plan Term Sheet) and is otherwise consistent with the provisions of the Customer Agreement (the Plan). The Parties agree to support the Plan so long as (i) the proposed treatment of the Parties claims, if any, under the Plan is not materially worse than the treatment set forth on the Plan Term Sheet as determined by the respective Parties in their reasonable discretion and (ii) the releases set forth on the Plan Term Sheet are in the Plan. Nothing in the Customer Agreement shall be deemed a solicitation of votes to accept the Plan. Plastics & Convertibles Production Payments: From the Effective Date through the earlier of (i) the exit date for the Plastics & Convertibles Plants (as defined in the Customer Agreement) and (ii) the closing date of a sale to a
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The summary provided in this Motion is for the convenience of parties only and is subject in every respect to the Customer Agreement. In the event of a conflict between the Customer Agreement and this summary, the Customer Agreement shall govern.
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qualified buyer, the Supplier and each Major Plastics & Convertibles Customer (as defined in the Customer Agreement) will pay the costs incurred in operating each of the Plastics & Convertibles Plants allocable to the production of such Customers component parts (i.e., material, labor and plant overhead, together with prefunded items that the Major Plastics & Convertibles Customers agree should be included) in accordance with a funding protocol (the Funding Protocol) and budget attached as exhibits to the Customer Agreement. e. Administration Expenses; Suppliers and Agents Professional Fees and Expenses: Commencing on the Effective Date and continuing through the cessation of production at the Plastics & Convertibles Plants, the Supplier will pay and each Major Plastics & Convertibles Customer will fund the amount of its allocable share of 100% of the administration expenses in accordance with the Funding Protocol and as set forth in the budget attached as an exhibit to the Customer Agreement. From the Effective Date through the earlier to occur of (i) the date on which production ceases at the Plastics & Convertibles Plants and (ii) June 30, 2007, the Supplier will pay and each Major Plastics & Convertibles Customer will fund the amount of its allocable share of 100% of the Suppliers estate professional fees and expenses and the professional fees and expenses of the Agents and their advisors pursuant to the Funding Protocol and in accordance with budget set forth on an exhibit to the Customer Agreement. Notwithstanding anything to the contrary in the Customer Agreement, the amounts of administration expenses, fees and expenses payable by the Major Plastics & Convertibles Customers in accordance with the Customer Agreement may in the aggregate exceed the amounts set forth on an exhibit to the Customer Agreement by a permitted variance. If the permitted variance is exceeded, the Major Plastics & Convertibles Customers are not required to fund amounts pursuant to this section in excess of the permitted variance, but a Supplier Default shall not occur solely as a result of exceeding the permitted variance. Suppliers Obligations: The Agents acknowledge that the Supplier may be required to use the Agents cash collateral in order to satisfy its obligations to fund its allocable share of the costs set forth in the budgets attached as exhibits to the Customer Agreement. The Agents consent to such use as and to the extent set forth in the Customer Agreement. Retention: Retention bonuses (including any amounts denominated as severance, the Retention Bonuses) will be paid to certain individuals in accordance with the Customer Agreement. The Supplier will pay and the relevant Customers will fund the Retention Bonuses in accordance with the Funding Protocol, as allocated and at the times set forth in the budget attached as an exhibit to the Customer Agreement. Limitation of Setoffs: The Customers agree not to exercise any setoff or reductions against postpetition accounts payable, other than ordinary course 6
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f.
g.
h.
setoffs; provided that this provision shall not affect any setoffs, recoupments or reductions a Customer exercised and implemented prior to November 1, 2006 (whether such setoffs, recoupments or reductions constituted ordinary course setoffs) against postpetition accounts payable prior to the Effective Date so long as the Supplier knew of the amount of such setoffs, recoupments or reductions based upon the Suppliers receipt of debit memoranda or other customary notification by the Customer to the Supplier. i. Treatment of Customer Claims: In consideration of, among other things, the releases in favor of each of the Customers (collectively, the OEM Releases) described in the Plan Term Sheet, upon the occurrence of the effective date of a confirmed plan that contains the terms set forth on the Plan Term Sheet, including the OEM Releases in favor of each of the Customers, in form satisfactory to the Customers, each of the Customers agrees that, effective on that date: (1) any claim arising from any rights to its repayment approved by this Court for (a) the launch costs paid by the Customers during the Debtors chapter 11 case (other than launch costs incurred in connection with Hermosillo), (b) junior secured claims and (c) the $30 million administrative loan, will be waived and discharged; any claim for cap-ex will be treated as provided by the agreements relating to such cap-ex funding and the Court order(s) approving such agreements or as set forth in the Plan Term Sheet (other than in the case of Hermosillo, which will be treated in accordance with a separate Hermosillo agreement); it will not assert a claim against the Supplier in these chapter 11 cases for special or consequential damages and such claims will be waived and discharged; any other administrative expense claim against the Supplier for damages, the amounts paid pursuant to the Customer Agreement, and all other special or consequential damages arising out of or in any way relating to the Suppliers inability to perform, or breach of performance, under that Customers production and service contracts relating to the Plastics & Convertibles Plants will be waived and discharged; and any other claim that would otherwise have to be paid in cash in full (absent agreement to different treatment by the holder thereof) pursuant to section 1129(a)(9)(A) of the Bankruptcy Code under a confirmed chapter 11 plan will be waived and discharged.
(2)
(3)
(4)
(5)
The Customer Agreement also contains other claim limitations for post-Effective Date component parts shipments to the Customers. 7
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j.
Sale Process: Until the Determination Date, each Customer agrees to support the Suppliers efforts to sell (the Sale Process), either as a whole or in part, to one or more qualified buyers the plants and divisions listed on an exhibit to the Customer Agreement. With respect to the Plastics & Convertibles Plants that the Supplier, the Agents and the Customers determine are potentially saleable, the Determination Date for each such plant shall be the earlier of (i) the date on which the Supplier, the Agents and the Customers agree that the Sale Process should be terminated with respect to such plant, (ii) the Target Date for such plant, unless the Supplier has theretofore entered into a definitive asset purchase agreement for such plant, (iii) the date of the closing of a sale of the assets of such plant to a qualified buyer and (iv) the Target Closing Date for such plant on such exhibit. Inventory Purchase: On the fifth business day following entry of the Approval Order, each Major Plastics & Convertibles Customer shall purchase inventory from the Supplier, which inventory is related to the production of its component parts from the Plastics & Convertibles Plants and which is usable and merchantable (collectively, the Customers Inventory). Resourcing: Each Customer agrees not to resource its programs currently subject to an issued purchase order and in production at the Suppliers plants set forth on an exhibit to the Customer Agreement (except as set forth on such exhibit) until the earliest of (i) the Determination Date, in respect of the applicable plant, (ii) the date of the closing of a sale of a plant or plants to a qualified buyer and (iii) the first date on which a Matured Supplier Default (as defined below) exists in respect of the applicable plant and Customer; provided that this section does not prohibit the Customers from taking action to prepare for resourcing at any of the Suppliers plants. Default by Supplier: A Supplier Default occurs if (i) the Supplier fails to meet its obligations to continue to produce component parts at a given plant as required by the Customer Agreement, (ii) the Supplier fails to pay the obligations it has undertaken to pay in the Customer Agreement at a given plant for a reason other than the Customers failure to fund in a timely manner or (iii) the Suppliers secured lenders terminate the Suppliers right to use cash collateral or otherwise enforce remedies upon an occurrence of an event of default under the terms of the Suppliers loan agreements; provided that no Supplier Default shall occur due to (x) a force majeure event, (y) lack of funding for cap-ex, tooling or launch costs or (z) the failure of a Customer to fund under the Customer Agreement. The Customer Agreement also contains special Cure and material Supplier Default provisions. Customer Payment Failure: If the Customers, or any one of them, fail to fund, reimburse or pay the Supplier pursuant to the terms of the Customer Agreement (a Customer Payment Failure), the Supplier may, but shall not be obligated to, after three business days written notice to the
k.
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Customer(s) causing the Customer Payment Failure, cease production for such Customer(s), which cessation shall not be a Supplier Default. o. Transition Planning: The Customers will develop and propose to the Supplier, for the Suppliers review, comment and approval (which approval will not be unreasonably withheld or delayed), detailed resourcing plans for the Customers respective component parts produced at the Plastics & Convertibles Plants. Purchase Options: Subject to an agreement included in an exhibit to the Customer Agreement, the Customer Agreement shall not be deemed to affect any option to purchase machinery and equipment granted by the Supplier to a Customer in a postpetition contract. Intellectual Property: The Supplier grants to certain of the Customers irrevocable, fully paid, worldwide exclusive licenses for the intellectual property required for or of assistance in the production of the component and service parts currently manufactured by the Supplier. Tooling Acknowledgement: The Customer Agreement grants the Customers certain rights to purchase, own and possess the Suppliers tooling. Access Agreement: The Supplier will enter into an access agreement (the Access Agreement), which provides the Customers with certain rights to take control of the Suppliers plants and facilities to produce parts if the Supplier defaults on certain obligations. Inventory Banks: Subject to capacity and funding, the Supplier will build parts banks as requested by a Customer for parts manufactured at any of the Suppliers plants. General Provisions: The Customer Agreement includes various general provisions, such as: (i) Several Liability; (ii) Access to Books and Records; (iii) Authorization and No Conflict; (iv) Cooperation; (v) Waivers and Amendments; Successors and Assigns; (vi) Notices; (vii) No Intended Third Party Beneficiary; (viii) Counterparts; (ix) Entire Agreement; Conflicts; Ambiguous Language; (x) Governing Law and Forum; (xi) Consultation with Counsel; and (xii) Waiver of Jury Trial. Relief Requested 12. By this Motion, the Debtors seek approval of the Customer Agreement and authority
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to take all actions contemplated thereunder pursuant to sections 363(b) and 364 of the Bankruptcy Code and Bankruptcy Rules 4001 and 9019.
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Basis for Relief 13. Bankruptcy Rule 9019(a) provides, in pertinent part, that [o]n motion by the [debtor
in possession] and after notice and a hearing, the court may approve a compromise or settlement. Fed. R. Bankr. P. 9019(a). 14. Compromises are tools for expediting the administration of the case and reducing
administrative costs and are favored in bankruptcy. See Protective Comm. of Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424 (1968) (In administering reorganization proceedings in an economic and practical matter it will often be wise to arrange the settlement of claims.); In re Fishell, 1995 WL 66622, at *2 (6th Cir. 1995); In re Haven, Inc., 2005 WL 927666, at *1 (6th Cir. B.A.P. 2005); In re Dow Corning Corp., 192 B.R. 415, 421 (AJS) (Bankr. E.D. Mich. 1996); see also Fogel v. Zell, 221 F.3d 955, 960 (7th Cir. 2000); In re Martin, 91 F.3d 389, 393 (3d Cir. 1996) (To minimize litigation and expedite the administration of a bankruptcy case, [c]ompromises are favored in bankruptcy.) (quoting 9 Collier on Bankruptcy 9019.03[1] (15th Ed. 1993)). Moreover, various courts have endorsed the use of
Bankruptcy Rule 9019 to resolve disputes. See, e.g., Bartel v. Bar Harbour Airways, Inc., 196 B.R. 268, 271 (S.D.N.Y. 1996); In re Check Reporting Service, Inc., 137 B.R. 653, 656 (Bankr. W.D. Mich. 1992); In re Miller, 148 B.R. 510, 516 (Bankr. N.D. Ill. 1992); In re Planned Systems, Inc., 82 B.R. 919, 921 (Bankr. S.D. Ohio 1988). 15. Generally, a settlement should be approved if it is determined to be fair and equitable
and does not fall below the lowest level of reasonableness. See Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir. 1988); In re Haven, Inc. 2005 WL 927666, at *3 (6th Cir. B.A.P. 2005); Dow Corning, 192 B.R. at 421. In determining whether a compromise satisfies this standard, courts ordinarily consider: (a) the probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity and expense of the litigation involved; 10
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and (d) the paramount interest of creditors and proper deference to their reasonable views. See, e.g., In re Bard, 49 Fed. Appx. 528, 530 (6th Cir. 2002); In re Dow Corning Corp., 2003 WL 22218449, at *1 (DPH) (Bankr. E.D. Mich. 2003); In re Dalen, 259 B.R. 586, 611-13 (Bankr. W.D. Mich. 2001); In re Stinson, Inc., 221 B.R. 726, 732 (SWR) (Bankr. E.D. Mich. 1998). 16. The Customer Agreement satisfies this standard. The Customer Agreement resolves
a number of issues between the parties, each, if left unresolved, would undoubtedly result in costly and time-consuming litigation. For example, if the parties did not agree to the Customer Agreement, the parties would likely become embroiled in disputes over breaches of the Debtors obligations under numerous purchase orders and postpetition agreements (including, but not limited to, postpetition loans made by the Customers). Similarly, the Debtors would expect that but for the consideration provided under the Customer Agreement, the parties would be required to litigate numerous disputes over ownership rights of certain equipment currently held by the Debtors. The expenses incurred to resolve such disputes would be an additional burden to the estates and their creditors. The Customer Agreement avoids these disputes and the heavy encumbrance that such disputes would place on the estates and their creditors and provides the Debtors with millions of dollars in financial support and voluntary subordination of certain claims that will allow the Debtors the best possible chance to maximize the value of their assets for the benefit of the Debtors estates. 17. Section 363(b)(1) provides that [t]he trustee, after notice and a hearing, may use,
sell, or lease, other than in the ordinary course of business, property of the estate. 11 U.S.C. 363(b)(1). Courts within the Sixth Circuit have held that transactions should be approved under section 363 when they are supported by sound business judgment. See, e.g., Stephens Indus., Inc. v. McClung, 789 F.2d 386, 390 (6th Cir. 1986) (concluding that a court can authorize a sale of a Debtors assets when a sound business purpose dictates such action.);
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In re Embrace Sys. Corp., 178 B.R. 112, 124 (Bankr. W.D. Mich. 1995); see also In re North American Royalties, Inc., 276 B.R. 860, 866 (Bankr. E.D. Tenn. 2002). 18. Here, the Debtors decision to enter into the Customer Agreement is clearly an
exercise of their sound business judgment, because the Customer Agreement provides the Debtors with numerous benefits, including: (a) allowing the Debtors to avoid a forced shut-down of their operations; (b) providing the Debtors with millions of dollars in ongoing funding; (c) reducing the Customers administrative claims against the Debtors estates and waiving future claims of the Customers relating to the wind-down of certain of the Debtors operations; (d) providing the Debtors with Customer-commitments to not resource certain products; (e) providing the Debtors with a recovery that will maximize the value of the Debtors working capital; and (f) providing the Debtors with the support of the Customers and the Agents for the sale of the Debtors businesses and a chapter 11 plan. 19. First, the Debtors likely would be unable to continue operations without the relief
provided under the Customer Agreement. As stated above, the Debtors operation of the Plastics & Convertibles business is a cash drain on the Debtors and their estates. Because of this fact, without the relief under the Customer Agreement, the Debtors likely would be forced to cease operations to limit further cash burn. In that scenario, the Debtors would lose any going concern value that the Debtors have in those businesses to the detriment of all of the Debtors creditors. 20. Second, under the Customer Agreement, the Customers will provide the Debtors with
millions of dollars in continued financing (for which they will not seek reimbursement as administrative expenses) that will provide the Debtors with the ability to continue their Plastics & Convertibles business operations. With those continued operations, the Debtors will have the best
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opportunity possible to maximize the value of their related assets through a controlled and organized sales process. 21. Third, as part of the Customer Agreement, the Debtors will reduce the overall
administrative expense claims against the Debtors estates by at least tens-of-millions of dollars by agreeing to reclassify otherwise valid administrative expense claims against the Debtors estates while, at the same time, avoiding additional claims that would arise from a forced shut-down of their operations. Moreover, as the Debtors planned sales contemplate the shutdown or other resourcing of certain plants and product lines, under the Customer Agreement, the Customers are waiving any claims that they may otherwise have had as a result of such shut-downs. 22. Fourth, pursuant to the Customer Agreement, the Customers will agree not to
resource certain goods presently under contract with the Debtors. This not only provides the Debtors with ongoing liquidity from the continued performance under the relevant agreements, but also provides the Debtors with meaningful assets to convey to potential purchasers of the Debtors businesses. 23. Fifth, the Customer Agreement will maximize the value of the Debtors existing
inventory by requiring the Customers to purchase such goods under agreed pricing rather than through attempting to dispose of such goods in connection with a liquidation of the Debtors assets if there were plant shut-downs. 24. Sixth, pursuant to the Customer Agreement, the Customers and the Agents will
commit to supporting the sale of the Debtors businesses and a chapter 11 plan.5 As such, the Debtors will be able to secure ongoing cooperation in their efforts to confirm a plan by three of their
The Debtors will use their best efforts to file an amended plan, amended disclosure statement and a solicitation procedures motion prior to this Courts hearing on this Motion.
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largest and most influential creditor constituents,6 thereby providing a path to the Debtors exit from bankruptcy protection. 25. Lastly, in exchange for all of the benefits provided by the Customers under the
Customer Agreement, the Debtors have agreed to continue performance under outstanding contracts and provide the Customers limited rights of access to the Debtors facilities, if the Debtors breach their outstanding purchase agreements. 26. Accordingly, the Debtors respectfully assert that their decision to enter into the
Customer Agreement is in the best interest of the Debtors estates and constitutes a sound exercise of their business judgment. 27. In addition, section 364(b) of the Bankruptcy Code provides that [t]he court, after
notice and a hearing, may authorize the trustee to obtain unsecured credit or to incur unsecured debt other than under subsection (a) of this section, allowable under section 503(b)(1) of this title as an administrative expense. 11 U.S.C. 364(b). Unlike a courts review of postpetition financing proposals under sections 364(c) and (d) of the Bankruptcy Code, section 364(b) does not set forth a heightened standard for reviewing a debtors request for relief thereunder. Rather, the critical question with respect to a section 364(b) request for postpetition financing is whether the unsecured debt that will be entitled to an administrative expense directly benefits the estate. See In re Made in Detroit, Inc., 299 B.R. 170, 177 (Bankr. E.D. Mich. 2003) (court considered whether loan directly and substantially benefited the estate to consider whether such loan was entitled to administrative expense priority under section 364(b)).
The agent for the Debtors senior, secured prepetition lenders intends to re-engage in negotiations with the Committee regarding the plan. The Debtors are hopeful that such negotiations will result in a consensual plan among all of the Debtors principal creditor constituencies.
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28.
For the reasons discussed above, the Debtors respectfully submit that this standard is
easily satisfied here. The Customers would have administrative claims arising from the funding provided under the Customer Agreement. As previously discussed, however, pursuant to the Customer Agreement, the Customers have agreed to waive their administrative claims against the Debtors upon the occurrence of a confirmed plan containing, among other things, releases in favor of each of the Customers. Interim Approval Should Be Granted 29. The Debtors request that the Court conduct an expedited preliminary hearing on this
Motion and authorize the Debtors from and after the entry of the Interim Order until the final hearing on this Motion to obtain the financing provided under the Customer Agreement. 30. Bankruptcy Rule 4001(c)(2) governs the procedures for obtaining authorization to
obtain postpetition financing and provides, in relevant part: The court may commence a final hearing on a motion for authority to obtain credit no earlier than 15 days after service of the motion. If the motion so requests, the court may conduct a hearing before such 15 day period expires, but the court may authorize the obtaining of credit only to the extent necessary to avoid immediate and irreparable harm to the estate pending a final hearing. Fed. R. Bankr. P. 4001(c)(2). 31. In examining requests under Bankruptcy Rule 4001(c)(2), courts apply the same
business judgment standard as is applicable to other business decisions. See, e.g., In re Ames Dept. Stores, Inc., 115 B.R. 34, 38 (Bankr. S.D.N.Y. 1990). The Debtors submit that, for the reasons discussed above, the immediate obtaining of the funding under the Customer Agreement on an interim basis as requested in this Motion is necessary to avert immediate and irreparable harm to the Debtors businesses.
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Request for Final Hearing 32. Pursuant to Bankruptcy Rule 4001(c)(2), the Debtors respectfully request that the
Court schedule the final hearing on this Motion on January 11, 2007 (the Final Hearing).7 33. The Debtors respectfully request that they be authorized to serve a copy of the signed
Interim Order, which fixes the time and date for the filing of objections, if any, by first class mail upon the Core Group and the 2002 List.8 The Debtors request that the Court consider such notice of the Final Hearing to be sufficient notice under Bankruptcy Rule 4001. Notice 34. Notice of this Motion has been given to the Core Group, the 2002 List and the
Affected Parties as required by the Case Management Procedures.9 In light of the nature of the relief requested, the Debtors submit that no further notice is required. No Prior Request 35. court. No prior motion for the relief requested herein has been made to this or any other
7 8
The Debtors note that the Court has already scheduled an omnibus hearing in these cases on this date. Capitalized terms used in this paragraph 33 not otherwise defined herein shall have the meanings set forth in the First Amended Notice, Case Management and Administrative Procedures filed on June 9, 2005 [Docket No. 294] (the Case Management Procedures). Capitalized terms used in this paragraph 34 not otherwise defined herein shall have the meanings set forth in the Case Management Procedures.
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WHEREFORE, the Debtors respectfully request the entry of an order, substantially in the form attached hereto as Exhibit A, (a) approving the Customer Agreement, (b) authorizing the Debtors to take all actions contemplated thereunder and (c) granting such other and further relief as is just and proper. Dated: December 12, 2006 KIRKLAND & ELLIS LLP /s/ Ray C. Schrock Richard M. Cieri (NY RC 6062) Citigroup Center 153 East 53rd Street New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -andDavid L. Eaton (IL 3122303) Ray C. Schrock (IL 6257005) Marc J. Carmel (IL 6272032) 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 -andCARSON FISCHER, P.L.C. Joseph M. Fischer (P13452) 4111 West Andover Road West - Second Floor Bloomfield Hills, Michigan 48302 Telephone: (248) 644-4840 Facsimile: (248) 644-1832 Co-Counsel for the Debtors
17
K&E 11452823.13
EXHIBIT A
IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION, et al.1 Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 05-55927 (SWR) (Jointly Administered) (Tax Identification #13-3489233) Honorable Steven W. Rhodes
INTERIM ORDER APPROVING CUSTOMER AGREEMENT AMONG THE DEBTORS, THEIR PRINCIPAL CUSTOMERS AND JPMORGAN CHASE BANK, N.A. AND RELATED RELIEF Upon the motion (the Motion)2 of the above-captioned debtors (collectively, the Debtors) for an interim order approving the Customer Agreement and related relief [Docket No. ]; it appearing that the relief requested is in the best interests of the Debtors estates; it appearing that the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; it appearing that this proceeding is a core proceeding pursuant to 28 U.S.C. 157(b)(2); it appearing that venue of this proceeding and the Motion in this District is proper pursuant to 28 U.S.C. 1408
1 The Debtors in the jointly administered cases include: Collins & Aikman Corporation; Amco Convertible Fabrics, Inc., Case No. 05-55949; Becker Group, LLC (d/b/a/ Collins & Aikman Premier Mold), Case No. 05-55977; Brut Plastics, Inc., Case No. 05-55957; Collins & Aikman (Gibraltar) Limited, Case No. 05-55989; Collins & Aikman Accessory Mats, Inc. (f/k/a the Akro Corporation), Case No. 05-55952; Collins & Aikman Asset Services, Inc., Case No. 05-55959; Collins & Aikman Automotive (Argentina), Inc. (f/k/a Textron Automotive (Argentina), Inc.), Case No. 05-55965; Collins & Aikman Automotive (Asia), Inc. (f/k/a Textron Automotive (Asia), Inc.), Case No. 05-55991; Collins & Aikman Automotive Exteriors, Inc. (f/k/a Textron Automotive Exteriors, Inc.), Case No. 05-55958; Collins & Aikman Automotive Interiors, Inc. (f/k/a Textron Automotive Interiors, Inc.), Case No. 05-55956; Collins & Aikman Automotive International, Inc., Case No. 05-55980; Collins & Aikman Automotive International Services, Inc. (f/k/a Textron Automotive International Services, Inc.), Case No. 05-55985; Collins & Aikman Automotive Mats, LLC, Case No. 05-55969; Collins & Aikman Automotive Overseas Investment, Inc. (f/k/a Textron Automotive Overseas Investment, Inc.), Case No. 05-55978; Collins & Aikman Automotive Services, LLC, Case No. 05-55981; Collins & Aikman Canada Domestic Holding Company, Case No. 05-55930; Collins & Aikman Carpet & Acoustics (MI), Inc., Case No. 05-55982; Collins & Aikman Carpet & Acoustics (TN), Inc., Case No. 05-55984; Collins & Aikman Development Company, Case No. 05-55943; Collins & Aikman Europe, Inc., Case No. 05-55971; Collins & Aikman Fabrics, Inc. (d/b/a Joan Automotive Industries, Inc.), Case No. 05-55963; Collins & Aikman Intellimold, Inc. (d/b/a M&C Advanced Processes, Inc.), Case No. 05-55976; Collins & Aikman Interiors, Inc., Case No. 05-55970; Collins & Aikman International Corporation, Case No. 05-55951; Collins & Aikman Plastics, Inc., Case No. 05-55960; Collins & Aikman Products Co., Case No. 05-55932; Collins & Aikman Properties, Inc., Case No. 05-55964; Comet Acoustics, Inc., Case No. 05-55972; CW Management Corporation, Case No. 05-55979; Dura Convertible Systems, Inc., Case No. 05-55942; Gamble Development Company, Case No. 05-55974; JPS Automotive, Inc. (d/b/a PACJ, Inc.), Case No. 05-55935; New Baltimore Holdings, LLC, Case No. 05-55992; Owosso Thermal Forming, LLC, Case No. 0555946; Southwest Laminates, Inc. (d/b/a Southwest Fabric Laminators Inc.), Case No. 05-55948; Wickes Asset Management, Inc., Case No. 0555962; and Wickes Manufacturing Company, Case No. 05-55968. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.
and 1409; it appearing that notice of the Motion and the opportunity for a hearing on the Motion was appropriate under the particular circumstances and that no other or further notice need be given; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED 1. 2. 3. 4. The Motion is granted in its entirety on an interim basis. The Customer Agreement and all agreements attached thereto are approved. The Access Agreement is approved. The Debtors are authorized to obtain the financing under the Customer Agreement
under section 364(b) of the Bankruptcy Code. 5. The financing provided by the Customers under the Customer Agreement shall be
entitled to the full protection of section 364(e) of the Bankruptcy Code. 6. Any inventory purchased by a Customer pursuant to the Customer Agreement shall
be sold free and clear of all liens, claims and encumbrances, pursuant to section 363(f) of the Bankruptcy Code, with all such liens, claims and encumbrances attaching only to the sale proceeds in the same validity, extent and priority as immediately prior to the transaction, subject to any rights, claims and defenses of the Debtors and other parties in interest. 7. Excluding Unpaid Tooling (as defined in the Customer Agreement) and
Supplier Tooling (as defined in the Customer Agreement), the Customers own, free and clear of all liens, claims and encumbrances all tooling, dies, test and assembly figures, gauges, jigs, patterns, casting patterns, cavities, molds and documentation including engineering specifications, test reports, PPAP books and production sheets (collectively, the Customer Tooling) used in the production of their respective component parts. 8. The Customers shall have the right to immediate possession of the Customer Tooling
(as defined in the Customer Agreement) and Unpaid Tooling used at any Unsold Plastics Plants (as
defined in the Customer Agreement), or immediately upon obtaining the right to resource the parts produced using the Customer Tooling and Unpaid Tooling at any of the other plants, in each case, without further order of the Court or payment by the Customers of any kind; provided that in the case of Unpaid Tooling, (a) the Customer has paid to the Supplier all undisputed amounts of the relevant tooling purchase order, (b) the Supplier reserves any claim or right to payment for the disputed amounts against the respective Customer (but may not withhold delivery of possession of the Unpaid Tooling to such Customer pending such payment) and (c) in the event such disputed claim or right to payment is not resolved and paid within 30 days after any Unpaid Tooling has been delivered to a Customer, the Supplier may require by notice to such Customer that the parties enter into non-binding mediation to attempt to resolve the dispute; provided further that, notwithstanding clause (c) above, the Supplier may file an action in the Court or other court of competent jurisdiction to prosecute its claim for the disputed amounts. 9. Pursuant to the Customer Agreement, the Customers shall have an option to purchase
at the Debtors cost all Supplier Tooling free and clear of all liens, claims and encumbrances, with all such liens, claims and encumbrances attaching only to the sale proceeds in the same validity, extent and priority as immediately prior to the transaction, subject to any rights, claims and defenses of the Debtors and other parties in interest, without further order of the Court and upon payment take immediate possession of the Supplier Tooling. 10. The Final Hearing is scheduled for January 11, 2007 at 2:00 p.m. prevailing Eastern
Time before this Court. 11. Any objections to the Motion must be filed with the Court no later than
January 8, 2007 and served so that it is received on or before January 8, 2007, in accordance with the Case Management Procedures, including to counsel for the Debtors and the Agents.
12.
The Debtors shall serve a copy of this Order by first class mail upon the Core Group
and the 2002 List, and such notice shall constitute sufficient notice of the Final Hearing under Bankruptcy Rule 4001.3 13. The Debtors are authorized to take all other actions necessary to effectuate the relief
granted pursuant to this Order in accordance with the Motion. 14. upon its entry. 15. The Court retains jurisdiction with respect to all matters arising from or related to the The terms and conditions of this Order shall be immediately effective and enforceable
implementation of this Order.
Capitalized terms used in this paragraph 12 not otherwise defined herein shall have the meanings set forth in the First Amended Notice, Case Management and Administrative Procedures filed on June 9, 2005 [Docket No. 294].
IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION, et al.1 Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 05-55927 (SWR) (Jointly Administered) (Tax Identification #13-3489233) Honorable Steven W. Rhodes
NOTICE AND OPPORTUNITY TO RESPOND TO DEBTORS MOTION FOR INTERIM AND FINAL ORDERS APPROVING CUSTOMER AGREEMENT AMONG THE DEBTORS, THEIR PRINCIPAL CUSTOMERS AND JPMORGAN CHASE BANK, N.A. AND RELATED RELIEF PLEASE TAKE NOTICE THAT the above-captioned debtors (collectively, the Debtors) have filed the Debtors Motion for Interim and Final Orders Approving the Customer Agreement Among the Debtors, Their Principal Customers and JPMorgan Chase Bank, N.A. and Related Relief (the Motion).
The Debtors in the jointly administered cases include: Collins & Aikman Corporation; Amco Convertible Fabrics, Inc., Case No. 05-55949; Becker Group, LLC (d/b/a/ Collins & Aikman Premier Mold), Case No. 05-55977; Brut Plastics, Inc., Case No. 05-55957; Collins & Aikman (Gibraltar) Limited, Case No. 05-55989; Collins & Aikman Accessory Mats, Inc. (f/k/a the Akro Corporation), Case No. 05-55952; Collins & Aikman Asset Services, Inc., Case No. 05-55959; Collins & Aikman Automotive (Argentina), Inc. (f/k/a Textron Automotive (Argentina), Inc.), Case No. 05-55965; Collins & Aikman Automotive (Asia), Inc. (f/k/a Textron Automotive (Asia), Inc.), Case No. 05-55991; Collins & Aikman Automotive Exteriors, Inc. (f/k/a Textron Automotive Exteriors, Inc.), Case No. 05-55958; Collins & Aikman Automotive Interiors, Inc. (f/k/a Textron Automotive Interiors, Inc.), Case No. 05-55956; Collins & Aikman Automotive International, Inc., Case No. 05-55980; Collins & Aikman Automotive International Services, Inc. (f/k/a Textron Automotive International Services, Inc.), Case No. 05-55985; Collins & Aikman Automotive Mats, LLC, Case No. 05-55969; Collins & Aikman Automotive Overseas Investment, Inc. (f/k/a Textron Automotive Overseas Investment, Inc.), Case No. 05-55978; Collins & Aikman Automotive Services, LLC, Case No. 05-55981; Collins & Aikman Canada Domestic Holding Company, Case No. 05-55930; Collins & Aikman Carpet & Acoustics (MI), Inc., Case No. 05-55982; Collins & Aikman Carpet & Acoustics (TN), Inc., Case No. 05-55984; Collins & Aikman Development Company, Case No. 05-55943; Collins & Aikman Europe, Inc., Case No. 05-55971; Collins & Aikman Fabrics, Inc. (d/b/a Joan Automotive Industries, Inc.), Case No. 05-55963; Collins & Aikman Intellimold, Inc. (d/b/a M&C Advanced Processes, Inc.), Case No. 05-55976; Collins & Aikman Interiors, Inc., Case No. 05-55970; Collins & Aikman International Corporation, Case No. 05-55951; Collins & Aikman Plastics, Inc., Case No. 05-55960; Collins & Aikman Products Co., Case No. 05-55932; Collins & Aikman Properties, Inc., Case No. 05-55964; Comet Acoustics, Inc., Case No. 05-55972; CW Management Corporation, Case No. 05-55979; Dura Convertible Systems, Inc., Case No. 05-55942; Gamble Development Company, Case No. 05-55974; JPS Automotive, Inc. (d/b/a PACJ, Inc.), Case No. 05-55935; New Baltimore Holdings, LLC, Case No. 05-55992; Owosso Thermal Forming, LLC, Case No. 0555946; Southwest Laminates, Inc. (d/b/a Southwest Fabric Laminators Inc.), Case No. 05-55948; Wickes Asset Management, Inc., Case No. 0555962; and Wickes Manufacturing Company, Case No. 05-55968.
K&E 11452823.13
PLEASE TAKE FURTHER NOTICE THAT your rights may be affected. You may wish to review the Motion and discuss it with your attorney. (If you do not have an attorney, you may wish to consult one.) PLEASE TAKE FURTHER NOTICE THAT, in accordance with the First Amended Notice, Case Management and Administrative Procedures filed on June 9, 2005 [Docket No. 294] (the Case Management Procedures), if you wish to object to the Court granting the relief sought in the Motion, or if you want the Court to otherwise consider your views on the Motion, no later than December 14, 2006 at 12:00 p.m. prevailing Eastern Time, or such shorter time as the Court may hereafter order and of which you may receive subsequent notice, you or your attorney must file with the Court a written response, explaining your position at:2 United States Bankruptcy Court 211 West Fort Street, Suite 2100 Detroit, Michigan 48226 PLEASE TAKE FURTHER NOTICE THAT if you mail your response to the Court for filing, you must mail it early enough so the Court will receive it on or before the date above. PLEASE TAKE FURTHER NOTICE THAT you must also serve the documents so that they are received on or before December 14, 2006 at 12:00 p.m. prevailing Eastern Time, in accordance with the Case Management Procedures, including to: Kirkland & Ellis LLP Attn: Richard M. Cieri Citigroup Center 153 East 53rd Street New York, New York 10022 Facsimile: (212) 446-4900 E-mail: rcieri@kirkland.com -and2 Response or answer must comply with Rule 8(b), (c) and (e) of the Federal Rules of Civil Procedure.
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K&E 11452823.13
Kirkland & Ellis LLP Attn: David L. Eaton Ray C. Schrock Marc J. Carmel 200 East Randolph Drive Chicago, Illinois 60601 Facsimile: (312) 861-2200 E-mail: deaton@kirkland.com rschrock@kirkland.com mcarmel@kirkland.com -andCarson Fischer, P.L.C. Attn: Joseph M. Fischer 4111 West Andover Road West - Second Floor Bloomfield Hills, Michigan 48302 Facsimile: (248) 644-1832 E-mail: jfischer@carsonfischer.com PLEASE TAKE FURTHER NOTICE THAT if no responses to the Motion are timely filed and served, the Court may grant the Motion and enter the order without a hearing as set forth in Rule 9014-1 of the Local Rules for the United States Bankruptcy Court for the Eastern District of Michigan.
3
K&E 11452823.13
Dated: December 12, 2006
KIRKLAND & ELLIS LLP /s/ Ray C. Schrock Richard M. Cieri (NY RC 6062) Citigroup Center 153 East 53rd Street New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -andDavid L. Eaton (IL 3122303) Ray C. Schrock (IL 6257005) Marc J. Carmel (IL 6272032) 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 -andCARSON FISCHER, P.L.C. Joseph M. Fischer (P13452) 4111 West Andover Road West - Second Floor Bloomfield Hills, Michigan 48302 Telephone: (248) 644-4840 Facsimile: (248) 644-1832 Co-Counsel for the Debtors
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K&E 11452823.13
CERTIFICATE OF SERVICE I, Ray C. Schrock, an attorney, certify that on the 12th day of December, 2006, I caused to be served, by e-mail, facsimile and overnight delivery, in the manner and to the parties set forth on the attached service lists, a true and correct copy of the foregoing Debtors Motion for Interim and Final Orders Approving the Customer Agreement Among the Debtors, Their Principal Customers and JPMorgan Chase Bank, N.A. and Related Relief. Dated: December 12, 2006 /s/ Ray C. Schrock Ray C. Schrock
Served via Electronic Mail
CREDITOR NAME A Freeman Acord Inc Adrian City Hall Alice B Eaton Amalgamated Life Askounis & Borst PC Assistant Attorney General of Texas ATC Nymold Corporation Athens City Tax Collector Autoliv ASP Inc Bailey & Cavalieri LLC Baker & Hostetler LLP Balch & Bingham LLP Barnes & Thornburg LLP Barnes & Thornburg LLP Bartlett Hackett Feinberg Basell USA Inc
CREDITOR NOTICE NAME John Livingston John Fabor Judith Greenspan Esq Thomas V Askounis Esq E Stuart Phillips Sherry Epstein Mike Keith Eric R Swanson Esq & Anthony J Nellis Esq Adam J Biehl & Yvette A Cox Wendy J Gibson & Brian A Bash Eric T Ray John T Gregg Patrick E Mears Frank F McGinn Scott Salerni
Benesch Friedlander Coplan & Aronoff LLP William E Schonberg & Stuart A Laven Jr Bernardi Ronayne & Glusac PC Rodney M. Glusac Bernstein Litowitz Berger & Grossman LLP Berry Moorman PC Berry Moorman PC Bird Svendsen Brothers Scheske & Pattison PC Borges & Associates LLC Bose McKinney & Evans LLP Bradley Arant Rose & White LLP Brendan G Best Brown Rudnick Berlack Israels LLP Bryan Clay Burr & Forman LLP Butzel Long PC Butzel Long PC Cahill Gordon & Reindel Cahill Gordon & Reindel Calhoun Di Ponio & Gaggos PLC Carlile Patchen & Murphy LLP Chambliss Bahner & Stophel PC Champaign County Collector Chris Kocinski City Of Eunice City Of Evart City Of Kitchener Finance Dept City Of Lowell City Of Marshall City Of Muskegon City Of Port Huron City Of Rialto City Of Rochester Hills City Of Salisbury City Of Westland City Of Woonsocket Ri City Treasurer City Treasurer Colbert & Winstead PC Steven Singer & John Browne Dante Benedettini Esq James Murphy Esq Eric J Scheske Wanda Borges Esq Jeannette Eisan Hinshaw Jay R Bender
EMAIL afreeman@akingump.com jlivingston@acordinc.com cityofadrian@iw.net aeaton@stblaw.com jgreenspan@amalgamatedlife.com taskounis@askborst.com stuart.phillips@oag.state.tx.us sepstein@atc-lighting-plastics.com finance@cityofathens.com eric.swanson@autoliv.com tony.nellis@autoliv.com Yvette.Cox@baileycavalieri.com Adam.Biehl@baileycavalieri.com wgibson@bakerlaw.com eray@balch.com john.gregg@btlaw.com pmears@btlaw.com ffm@bostonbusinesslaw.com scott.salerni@basell.com wschonberg@bfca.com slaven@bfca.com rodg@brgpc.com steve@blbglaw.com johnb@blbglaw.com dante@berrymoorman.com murph@berrymoorman.com bsbs@charter.net borgeslawfirm@aol.com jhinshaw@boselaw.com jbender@bradleyarant.com bbest@dykema.com rstark@brownrudnick.com ssmith@brownrudnick.com bryan_clay@ham.honda.com shoff@burr.com sharkey@butzel.com osborne@butzel.com wilkins@butzel.com jschaffzin@cahill.com rusadi@cahill.com kcc@cdg-law.com lxf@cpmlaw.com bbailey@cbslawfirm.com bneal@co.champaign.il.us christopher.j.kocinski@bofasecurities.com Eunicela@hotmail.com evartmanager@sbcglobal.net finance@city.kitchener.on.ca MYoung@ci.lowell.ma.us Mevans@cityofmarshall.com roberto.robles@postman.org cphdp@porthuron.org treasurer@rialtoca.gov treasury@rochesterhills.org finwebreq@salisburync.gov finance@ci.westland.mi.us webmaster@woonsocketri.org THovarter@cityofmarshall.com Ncowdrey@corunna-mi.gov amalone@colwinlaw.com skomrower@coleschotz.com mpolitan@coleschotz.com cathy.barron@constellation.com
Robert Stark & Steven Smith Shannon E Hoff Daniel N Sharkey & Paula A Osborne Matthew E Wilkins Esq Jonathan A Schaffzin Robert Usadi Kevin C Calhoun Leon Friedberg Bruce C Bailey Barb Neal The Mator at City Hall Roger Elkins City Manager Pauline Houston Lowell Regional Wastewater Maurice S Evans City Manager Bob Robles Treasurer's Office City Treasurer Kurt A Dawson City Assesor Treasurer Business License Div Pretreatment Division Tracy Horvarter Amy Wood Malone
Cole Schotz Meisel Forman & Leonard PA Stuart Komrower & Mark Politan Constellation NewEnergy Inc Catherine Barron Esq
In re: Collins & Aikman Corp., et al. Case No. 05-55927 (SWR)
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CREDITOR NAME Coolidge Wall Womsley & Lombard Crowell & Moring LLP Crowell & Moring LLP Cummings McClorey Davis & Acho PLC DaimlerChrysler DaimlerChrysler DaimlerChrysler Corporation Daniella Saltz Danielle Kemp Danning Gill Diamond & Kollitz LLP David H Freedman David Heller David Youngman Dennis C Roberts PLLC Dickinson Wright PLLC Dickinson Wright PLLC Dilworth Paxson LLP Dow Chemical Company Dow Chemical Company Duane Morris LLP DuPont Dworken & Bernstein Co LPA Dykema Gossett Rooks Pitts PLLC Earle I Erman Eastman & Smith Ltd Elias Meginnes Riffle & Seghetti PC Ellwood Group Inc Erin M Casey Erman Teicher Miller Zucker & Freedman PC Foley & Lardner LLP Frank Gorman Gail Perry Garan Lucow Miller PC Garan Lucow Miller PC Ge Capital GE Polymerland George E Schulman Gold Lange & Majoros PC Gold Lange & Majoros PC Hal Novikoff Handwork & Kerscher LLP Heather Sullivan Hewlett Packard Co Hewlett Packard Co Hunton & Williams LLP Hyman Lippitt PC InterChez Logistics Systems Inc International Union UAW Jacob & Weingarten PC Jaffe Raitt Heuer & Weiss PC Jaffe Raitt Heuer & Weiss PC James A Plemmons James C Edwards Jenner & Block LLP Jim Clough Joe LaFleur Joe Saad John A Harris John Green John J Dawson John S Sawyer
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Dennis C Roberts Dawn R Copley Esq Michael C Hammer Anne Marie Kelley & Scott Freedman Kathleen Maxwell Lee H Sjoberg Brian W Bisignani Esq Bruce Tobiansky Howard S Rabb Esq Peter J Schmidt Matthew D Harper Brian J Meginnes & Janaki Nair Susan A Apel Esq
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Julie Teicher & Dianna Ruhlandt Judy A Oneill Esq
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CREDITOR NAME Josef Athanas Joseph Delehant Esq Joseph M Fischer Esq K Crumbo K Schultz Kelley Drye & Warren LLP
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James S Carr Denver Edwards
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David M Gurewitz
Patricia A Borenstein Esq Timothy A Fusco Esq Bruce A Miller Thomas P Sarb & Robert D Wolford 15663507 Jeffrey Morganroth Lacolle Randall A Rios James R Bruinsma Karen Schneider
Peter Nils Baylor Esq Ralph Colasuonno & Craig S Schoenherr Sr Steven B Soll Esq Kevin N Summers Sara Eagle & Gail Perry Sara Eagle & Gail Perry Charles J Filardi Jr
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CREDITOR NAME Pepper Hamilton LLP Pepper Hamilton LLP Pepper Hamilton LLP Peter Schmidt Peter V Pantaleo Phh Canada Inc Philip Dublin Phoenix Contracting Company Pillsbury Winthrop Shaw Pittman LLP Pillsbury Winthrop Shaw Pittman LLP Pillsbury Winthrop Shaw Pittman LLP Pillsbury Winthrop Shaw Pittman LLP Pitts Hay & Hugenschmidt PA Plunkett & Cooney PC Quadrangle Group LLC Quadrangle Group LLC R Aurand R J Sidman Ralph E McDowell Ravich Meyer Kirkman McGrath & Nauman PA Ray C Schrock Rex D Rainach Rhoades McKee Rick Feinstein Ricoh Canada Inc Riker Danzig Scherer Hyland & Perretti LLP RLI Insurance Company Robert J Diehl Jr Robert Weiss Ronald A Leggett Ronald R Rose Sarah Eagle SC DHEC Sean P Corcoran Seiller Waterman LLC Seyburn Kahn Ginn Bess & Serlin PC Sheehan Phinney Bass & Green PA Sheryl Toby Shumaker Loop & Kendrick LLP Sidley Austin Brown & Wood LLP Sills Cummis Epstein & Gross PC Spengler Nathanson PLL St Paul Travelers Stark County Treasurer State Of Michigan
CREDITOR NOTICE NAME Francis J Lawall & Bonnie MacDougal Kistler J Gregg Miller & Linda J Casey Kenneth H Zucker
Tricia Sommers Craig A Barbarosh Patrick J Potter Esq Rick Antonoff Esq Lara Sheikh Esq Josh J May Esq William B Freeman Esq Robert P Pitts Esq Douglas C Bernstein Andrew Herenstein Patrick Bartels
EMAIL lawallf@pepperlaw.com kistlerb@pepperlaw.com millerj@pepperlaw.com zuckerk@pepperlaw.com pschmidt@dykema.com ppantaleo@stblaw.com phhmail@phhpc.com pdublin@akingump.com triciawinkle@hotmail.com craig.barbarosh@pillsburylaw.com patrick.potter@pillsburylaw.com rick.antonoff@pillsburylaw.com bill.freeman@pillsburylaw.com pittsrm@charter.net dbernstein@plunkettcooney.com andrew.herenstein@quadranglegroup.com patrick.bartels@quadranglegroup.com raurand@e-bbk.com rjsidman@vssp.com rmcdowell@bodmanllp.com mfmcgrath@ravichmeyer.com rschrock@kirkland.com rainach@msn.com dbylenga@rhoadesmckee.com rick.feinstein@ubs.com legal@ricoh.ca
Michael F McGrath Esq A Professional Law Corporation Dan E Bylenga Jr
State Of Michigan State Of Michigan Stephen E Spence Stephen S LaPlante Steven A Siman PC Stevens & Lee PC
Dennis J OGrady Joseph L Schwartz & Curtis M Plaza jschwartz@riker.com Roy Die Roy_Die@rlicorp.com rdiehl@bodmanllp.com rweiss@honigman.com Collector Of Revenue leggettr@stlouiscity.com rrose@dykema.com eagle.sarah@pbgc.com whitehme@dhec.sc.gov Evander Whitehead chandlls@dhec.sc.gov sean.p.corcoran@delphi.com Richard M Rubenstein rubenstein@derbycitylaw.com Leslie Stein lstein@seyburn.com Bruce Harwood bharwood@sheehan.com stoby@dykema.com David H Conaway dconaway@slk-law.com bguzina@sidley.com Bojan Guzina & Brian J Lohan blohan@sidley.com asherman@sillscummis.com Andrew H Sherman & Boris I Mankovetskiy bmankovetskiy@sillscummis.com Michael W Bragg Esq MBragg@SpenglerNathanson.com Vatana Rose vrosa@stp.com PA Powers PAPowers@co.stark.oh.us Michigan Dept Of Environmental Quality Environmental Assistance Div deq-ead-env-assist@michigan.gov Michigan Dept Of Treasury Collection Div Office of Financial Mgmt Cashiers Office treasReg@michigan.gov Michigan Unemployment Insurance Agency shuttkimberlyj@michigan.gov US Trustee steve.e.spence@usdoj.gov laplante@millercanfield.com Steven A Siman sas@simanlaw.net Leonard P Goldberger Esq & John C Kilgannon Esq jck@stevenslee.com
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CREDITOR NAME
CREDITOR NOTICE NAME
Stradley Ronon Stevens & Young LLP T Pryce Tax Administrator Textron Inc The Bank of New York Thomas Radom Treasurer Of State Tricia Sherick Tyco Capital Inc United Rentals Of Canada Inc United Steelworkers Varnum Riddering Schmidt & Howlett LLP Ville De Farnham Vinson & Elkins LLP Von Briesen & Roper SC Voridian Canada Company Warner Norcross & Judd LLP Warner Stevens LLP Wickes Manufacturing Co William C Andrews William G Diehl William J Byrne Willkie Farr & Gallagher LLP Wilmer Cutler Pickering Hale and Dorr LLP WL Ross & Co Womble Carlyle Sandridge & Rice PLLC Zeichner Ellman & Krause LLP
Paul Patterson Esq Jim Cambio Gary S Bush Joseph T. Deters
David R Jury Mary Kay Shaver Service de la Tresorerie John E West Randall Crocker & Rebecca Simoni Michael G Cruse Michael D Warner Esq co Stacy Fox of C&A
EMAIL ppatterson@stradley.com mdorval@stradley.com jtrotter@stradley.com tpryce@ford.com jcambio@tax.ri.gov afriedman@textron.com gbush@bankofny.com radom@butzel.com treasurer@tos.state.oh.us tsherick@honigman.com Frank.Chaffiotte@cit.com e-rental@ur.com djury@steelworkers-usw.org mkshaver@varnumlaw.com msaintdenis@ville.farnham.qc.ca jwest@velaw.com rcrocker@vonbriesen.com blanderson@eastman.com mcruse@wnj.com mwarner@warnerstevens.com stacy.fox@colaik.com kandrews@e-bbk.com wdiehl@e-bbk.com bbyrne@e-bbk.com alipkin@willkie.com rspigel@willkie.com andrew.goldman@wilmerhale.com oiglesias@wlross.com RWhelehan@wcsr.com pjanovsky@zeklaw.com
Alan Lipkin & Roger Spigel Andrew N Goldman Esq Oscar Iglesias Rory D Whelehan Esq Peter Janovsky & Stuart Krause
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(no valid e-mail) CREDITOR NAME American General Finance Attorney General of MI Barclays Bank PLC Bayer Material Sciences BNY Midwest Trust Company BNY Midwest Trust Company Brown Corporation City Of Albemarle City Of Battle Creek City Of Longview City Of Sterling Heights Clark Hill PLC Colbond Inc Collins & Aikman Corp Contrarian Capital Management LLC DaimlerChrysler Corporation Dayton Bag & Burlap Co El Paso Natural Gas Company Enerflex Solutions LLC Exxon Chemicals Frost Brown & Todd LLP General Motors Corp Honda of America Mfg Intertex World Resources Trintex Corp Jacob & Weingarten PC JPMorgan Chase Bank NA Kilpatrick & Associates PC Lake Erie Products Lambert Leser Isackson Cook & Giunta PC McLane Graf Raulerson & Middleton PA Meridian Magnesium Miller Canfield Paddock & Stone PLC Miller Canfield Paddock & Stone PLC Missouri Dept of Revenue Office of Finance of Los Angeles Office of the US Attorney Orlando Corporation Paul Weiss Rifkind Wharton & Garrison LLP Pension Benefit Guaranty Corporation Pine River Plastics Inc Plastech Progressive Moulded Products Revenue Canada Riverfront Plastic Products Inc Select Industries Corp South Carolina Dept Of Revenue Southco Standard Federal Bank Stark Reagan PC State Of Michigan Teknor Financial Corporation TG North America CREDITOR NOTICE NAME Matthew H Rick Mr David Bullock Linda Vesci Mary Callahan Roxane Ellwalleger Mark Ferderber Utilities Department Income Tax Division Water Utilities James P Bulhinger City Treasurer E Todd Sable Don Brown General Counsel Seth Lax Kenneth P Munn Jeff Rutter Michael J McGinnis Todd McCallum Law Dept John S Sawyer Mark Fischer Brian Clay Bill Weeks Howard S Sher Ann Kurinskas Richardo Kilpatrick Leonora Baughman Lilia Roman Susan M Cook Joseph A Foster Jonathan S Green Jose J Bartolomei Steven A Ginther Bankruptcy Auditor Julia Pidgeon Asst US Atty Stephen J Shimshak & Netanella T Zahavi Sara Eagle & Gail Perry Barb Krzywiecki Kelvin W Scott Esq Dan Thiffault George Tabry Christine Brown Sales & Use Tax Division Lorraine Zinar Holly Matthews Joseph A Ahern Linda King Bruce B Galletly Raymond Soucie FAX 217-356-5469 517-373-2060 212-412-1706 412-777-4736 312-827-8542 312-827-8542 616-527-3385 704-984-9445 269-966-3629 903-237-1004 586-276-4077 313-965-8252 828-665-5005 248-824-1882 203-629-1977 248-576-8394 937-258-0029 713-420-5669 248-430-0134 281-588-4606 859-231-0011 586-575-1519 937-645-7401 770-258-3901 248-649-2820 212-270-0453 248-377-0800 630-595-0336 989-894-2232 603-625-5650 517-663-2714 313-496-8452 313-496-8452 573-751-7232 213-368-7076 313-226-3800 905-677-1851 212-757-3990 202-326-4112 810-329-9388 313-792-2729 905-760-3371 902-432-6287 734-281-4483 937-233-7640 803-898-5147 610-361-6082 248-816-4376 248-641-9921 517-241-8077 401-725-5160 248-280-2110
Page 1 of 2
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(no valid e-mail) CREDITOR NAME Third Avenue Trust Town Of Lincoln Finance Office Toyota Engineering & Motor Mfg NA UBS Investment Bank Unique Fabricating Inc Valiant Tool & Mold Inc Vericorr Packaging fka CorrFlex Packaging Viacom Inc CREDITOR NOTICE NAME W James Hall General Counsel Rick Feinstein Tom Tekieke General Fax Adriana Avila JoAnn Haller FAX 212-735-0003 401-333-3648 859-746-6783 203-719-1090 248-853-8422 519-944-7748 586-939-4216 412-642-5614
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CREDITOR NAME Advanced Composites Inc Akin Gump Strauss Hauer & Feld LLP Assoc Receivables Funding Inc Athens City Tax Collector Basf Corporation Beam Miller & Rogers PLLC Bell Boyd & Lloyd Inc Brunswick Corp Butzel Long PC Canada Customs & Rev Agency Canada Customs & Rev Agency Charter Township Of Plymouth City Of Barberton City Of Canton City Of Dover City Of Dover City Of Evart Recreation Dept City Of Fullerton City Of Havre De Grace City of Kalamazoo City Of Los Angeles City Of Phoenix City Of Roxboro City Of St Joseph City Of Williamston City Treasurer Collector Of Revenue Collins & Aikman Corp Corning Inc Cox Hodgman & Giarmarco PC Cunningham Dalman PC DaimlerChrysler Corporation DaimlerChrysler Corporation Dana Corp Davidson Kempner Capital Management LLC Dennis Reis LLC Dickinson Wright PLLC Dold Spath McKelvie & DeLuca PC DuPont Dykema Gossett PLLC Eastman & Smith Ltd ER Wagner Manufacturing Fisher Automotive Systems Fisher America Inc
CREDITOR NOTICE NAME Rob Morgan Michael S Stamer Philip C Dublin Mike Keith Charlie Burrill Harry W Miller III Jay Truty Ms Amy Evans Thomas B Radom Attn Receiver General International Tax Service Income Tax Division Canton Income Tax Dept Wastewater Labroratory
Mary Ellen Hinckle Carolyn Rutland PhD Dept Of Building And Safety City Attorneys Office Tax Department Water Department Port Huron Police Department Barbara J Walker Stacy Fox Nancy Holtby Esq William H Horton Esq & Sean M Walsh Esq Jeffrey K Helder Kenneth P Munn Kim R Kolb Esq Lisa A Wurster Esq Morgan Blackwell Dennis P Reis James A Plemmons Esq Charles McKelvie Rita Baird Susan F Herr Ronald Rose & Brendan Best David W Nunn Esq Gary Torke William Stiefel
ADDRESS1 1062 S 4th Ave 590 Madison Ave PO Box 16253 PO Box 849 1609 Biddle Ave 709 Taylor St 3 1st National Plaza Ste 3300 Law Dept 100 Bloomfield Hills Pkwy Ste 100 1 5 Notre Ave 2204 Walkley Rd PO Box 8040 104 3rd St NW PO Box 9951 484 Middle Rd PO Box 818 200 South Main St 303 W Commonwealth Ave 711 Pennington Ave Public Svc Dept Env Svc Div 201 N Figueroa St No 786 200 W Washington St 13th Fl PO Box 128 700 BRd St 161 E Grand River 100 Mcmorran 201 N Second St 26553 Evergreen Rd Legal Dept Columbia Center 10th Fl 321 Settlers Rd CIMS 483-03-12 CIMS 485-13-32 4500 Dorr St 885 Third Ave Ste 3300 7000 N Green Bay Ave 500 Woodward Ave Ste 4000 Kellie Schone Jayson Macyda DuPont Legal D 7156 400 Renaissance Center One SeaGate 24th Fl 4611 North 32nd St 1084 Doris Rd
CITY Sidney New York Greenville Athens Wyandotte PO Box 280240 Nashville 70 W Madison St Chicago One North Field Ct Lake Forest Bloomfield Hills Sudbury Ottawa Plymouth Barberton Canton Dover Dover Evart Fullerton Havre De Grace 1415 N Harrison St Kalamazoo File 54563 Los Angeles Phoenix Roxboro St Joseph Williamston Port Huron St Charles Ste 900 Southfield Riverfront Plaza HQ E2 10 Corning 101 W Big Beaver Rd Troy PO Box 1767 Holland 800 Chrysler Dr Auburn Hills 1000 Chrysler Dr Auburn Hills PO Box 1000 Toledo New York Milwaukee Detroit 5445 Corporate Dr Ste 170 Troy 1007 N Market St Wilmington Detroit PO Box 10032 Toledo Milwaukee Auburn Hills
ADDRESS2
STATE OH NY SC TN MI TN IL IL MI ON ON MI OH OH NH NH MI CA MD MI CA AZ NC MI MI MI MO MI NY MI MI MI MI OH NY WI MI MI DE MI OH WI MI
ZIP 45365-8977 10022 29606 37371-0849 48192 37208 60602-4207 60045 48304 P3A 5C2 K1A 1B1 48170-4394 44203 44711-9951 03820 03820-0818 49631 92632 21078 49007-2565 90012 85003 27573 49085-1355 48895 48060 63301 48076 14831 48084 49423 48326-2757 48326-2757 43615 10022 53209 48226 48098-2683 19898 48243 43604 53209-6023 48326-2613
COUNTRY
Canada Canada
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CREDITOR NAME Ford Motor Company Freudenberg Nok Inc Frost Brown & Todd LLP Ga Dept Of Revenue Gaston County Ge Capital Ge Capital Ge Capital Ge Capital Comm Serv Astro Dye General Motors Corp General Motors Corp Harford County Revenue Heritage Environmental Svcs Inc Hicks Casey & Foster PC Highwoods Forsyth Lp Highwoods Forsyth Lp Hnk Michigan Properties Honda of America Mfg Honigman Miller Schwartz and Cohn LLP Indiana Department Of Revenue Indiana Dept Of Revenue Indiana Steel & Wire Co Industrial Development Board Industrial Leasing Company Industrial Truck Sales & Svc Inmet Division of Multimatic Internal Revenue Service Invista ISP Elastomer James R Temple Janesville Products JPMorgan Chase Bank NA Keith Milligan Lear Corp Lear Corp Manpower Meridian Park Michigan Dept of Treasury Miller Canfield Paddock & Stone PLC Mills & Stockbridge PC Ministre Du Revenu Du Quebec
CREDITOR NOTICE NAME Daniella Saltz John S Sawyer Director's Office for Taxpayer Services Division
ADDRESS1 Office of the General Counsel 47690 E Anchor Ct 250 W Main St Ste 2700 PO Box 105499 PO Box 890691 PO Box 740434 PO Box 640387 PO Box 642444 PO Box 60500 300 Renaissance Center 30009 Van Dyke Rd 220 South Main St 7901 W Morris St 136 N Fairground St Ste 100 Attn Lease Administration Attn Lease Administration 7255 Crossleigh Court Ste 108 North American Purchasing Office 2290 First National Bldg 100 N Senate Ave PO Box 7218 1 E 4th St PO Box 4660 PO Box 1803 PO Box 1807 35 West Milmot St Box 330500 Stop 15 601 S LA Salle St Ste 310 PO Box 4346 108 W Scott St 2700 Patterson Ave 270 Park Ave 3745 C Us Hwy 80 W World Headquarters 21557 Telegraph Rd 30800 Northwestern Hwy 2707 Meridian Dr 3030 W Grand Blvd Ste 10 200 150 W Jefferson Ste 2500 10 Light St 3800 Marly
ADDRESS2 CITY 1 American Rd Ste 323WHQ Dearborn Plymouth Lexington Atlanta Charlotte Atlanta Pittsburgh Pittsburgh Charlotte Detroit
STATE MI MI KY GA NC GA PA PA NC MI MI MD IN GA TN NC OH OH MI IN IN OH AL MI NC ON MI IL TX MI MI NY AL MI MI MI NC MI MI MD QC
ZIP 48126 48170 40507 30348-5499 28289-0691 30374 15264-0387 15264 28260 48243 48090-9025 21014 46231 30060 37203-5223 27604 43617 43067 48226-3583 46204-2253 46207-7218 45202 36103-4660 49501 27702-1807 L4B 1L7 48232 60605-1725 77210 48837 49546 10017 36870 48034 48034 48334 27834 48202 48226 21202-1487 G1X 4A5
COUNTRY
Linda L Bentley Mark Fischer Mr Ken Price Samuel D Hicks Esq co Highwoods Properties Llc co Highwoods Properties Llc co Rudolph libbe Properties Brian Clay Robert B Weiss Scott A Wolfson
PO Box 300 PO Box 9025 Mail Code 480-206-116 Warren Bel Air Indianapolis Marietta 2120 West End Ave Ste 100 Nashville 3100 Smoketree Ct Ste 600 Raleigh Toledo 21001 A State Rte 739 Raymond 660 Woodward Ave Detroit Indianapolis Indianapolis Cincinnati Montgomery Grand Rapids Durham Richmond Hill Detroit Chicago Houston Grand Ledge Grand Rapids New York Phenix 21557 Telegraph Rd Southfield Southfield Farmington Hills Greenville Detroit Detroit Baltimore Ste Foy
Michael L Cioffi of the City of Montgomery
Canada
SBSE Insolvency Unit Tim Gorman Laura Kelly Ann Kurinskas
Janis N Acosta Esq C Garland Waller Michael A Cox Juandisha M Harris & Heather Donald Jonathan S Green Stephen M Sylvestri Esq
Canada
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CREDITOR NAME Municipality Of Port Hope North Loop Partners Ltd Nossiff & Giampa PC Oakland County Corporation Counsel Oklahoma County Treasurer Oneida County SCU PolyOne Corp Prestige Property Tax Special Princeton Properties Qrs 14 Paying Agent Qrs 14 Paying Agent Inc Railroad Drive Lp Receivable Management Services Receiver General For Canada Receiver General For Canada Receiver General for Canada Receiver General For Canada Revenue Canada Securities and Exchange Commission Securities and Exchange Commission Shapero & Green LLC Simpson Thacher & Bartlett LLP State Of Alabama State Of Michigan State Of Michigan State Of Michigan State Of Michigan State of Michigan State of Michigan Central Functions Unit Stephen E Spence Summit Property Management Inc Tate Boulevard I Llc Tax Collector Tcs Realty Ltd Teleflex Inc Tennessee Department of Revenue The Corporation Of The Town The Goodyear Tire & Rubber Co The Town Of Pageland Thomas & Betts Corp Tom Heck Truck Service Town Of Farmington Town Of Farmville Town Of Gananoque Town Of Old Fort Town Of Pageland
CREDITOR NOTICE NAME co Beer Wells Real Estate Alexander G Nossiff Donald F Slavin Gretchen Crawford County Office Building Woody Ban
ADDRESS1 PO Box 117 PO Box 3449 24 Chestnut St 1200 N Telegraph Rd Asst District Attorney 800 Park Ave 4th Fl 33587 Walker Rd 1025 King St East 678 Princeton Blvd Church St Station 50 Rockefeller Lobby 2 100 Vesper Executive Pk 9690 Deereco Rd Ste 200
ADDRESS2
CITY Port Hope Longview Dover Pontiac Oklahoma City Utica Avon Lake Cambridge Lowell New York New York Tyngsboro Timonium Ottawa Ottawa Dorval Belleville Ottawa Chicago Chicago
STATE ON TX NH MI OK NY OH ON MA NY NY MA MD ON ON QC ON ON IL IL OH NY AL MI MI MI MI MI MI MI MI NC CA ON PA TN ON OH SC TN IL NH NC ON NC SC
ZIP L1A 3V9 75606 03820 48341 73102 13501 44012 N3H 3P5 01851 10249 10020-1605 01879-2710 21093 K1A 1B1 K1P 6K1 H4Y 1G7 K8N 2S3 K1A 9Z9 60604 60604 44122 10017-3954 36104 48909 48909 48277-0833 48909 48918-0001 48909-8244 48226 48075 28602 937151192 K8V 5R1 19468 37247 N5C 2V5 44316-0001 29728 38125 61802 03835 27828-1621 K7G 2T6 28762 29728
COUNTRY Canada
320 Robert S Kerr Rm 307
Canada
PO Box 6529
Phyllis A Hayes
PO Box 5126
Canada Customs & Rev Agency Technology Ctr 875 Heron Rd Industry Canada Als Financial Postal Station D Box 2330 700 Leigh Capreol 11 Station St Ottawa Technology Centre Angela Dodd 175 W Jackson Blvd Ste 900 Midwest Regional Office 175 W Jackson Blvd Ste 900 Brian Green Peter Pantaleo Erin Casey & Alice Eaton Dept Of Commerce & Nat Res Matthew Rick Asst Attorney General State Of Michigan Mc State Secondary Complex Signature Square II Ste 220 425 Lexington Ave Department Of Revenue PO Box 30004 PO Box 30754 Dept 77833 7150 Harris Dr PO Box 30015 430 W Allegan St Office of Child Support 211 W Fort St Ste 700 24901 Northwestern Hwy 302 1985 Blvd Se PO Box 1192 21 Albert St 155 S Limerick Rd Cordell Hall 130 Oxford St 2nd Fl 1144 E Market St 126 North Pearl St 8155 TB Blvd 1306 E Triumph Dr 356 Main St 115 West Church St 30 King St East PO Box 520 PO Box 67
875 Heron Rd
Canada Canada Canada Canada Canada
25101 Chagrin Blvd Cleveland New York 50 N Ripley St Montgomery Lansing Lansing Detroit Lansing Lansing PO Box 30744 Lansing Detroit Southfield Hickory Fresno Trenton Limerick Nashville Ingersoll Akron Pageland Memphis Urbana Farmington Farmville Gananoque Old Fort Pageland
Jennifer Nelles US Trustee First Plaza County Of Fresno Jim Leyden TN Attorney Generals Office Of Ingersoll Steven C Bordenkircher Esq Michael F Geiger Esq
PO Box 2228
Canada
425 5th Ave N
Canada
PO Box 67
Farmville Downtown Partnership
PO Box 100
Canada
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CREDITOR NAME Town Of Troy Toyota Engineering & Motor Mfg NA Tr Associates Treasurer City Of Detroit Unifi Inc Uniform Color Co United States Attorney for the Eastern District of Michigan Valeo Inc Vari Form Inc Vespera Lowell Llc Village Of Holmesville Village Of Rantoul Visteon Climate Control Vorys Sater Seymour and Pease LLP W9 Lws Real Estate Limited Wachtell Lipton Rosen & Katz Wellington Green LLC Young & Susser PC
CREDITOR NOTICE NAME General Counsel Fsia Inc
Randy Lueth Attn Civil Division Jerry Dittrich Terry Nardone Blue Point Capital Bpv Lowell LLC
ADDRESS1 315 North Main St 25 Atlantic Ave 200 E Big Beaver PO Box 33525 7201 W Friendly Ave 942 Brooks Ave 211 W Fort St Ste 2001 3000 University Dr 12341 E 9 Mile Rd 10 Livingston Pl 2nd Fl 205 Millersburg Rd 333 S Tanner One Village Center Dr 52 East Gay St 10101 Claude Freeman Dr Ste 200 N 51 W 52nd St 31100 Telegraph Rd Ste 200 26200 American Dr Ste 305
ADDRESS2
CITY Troy Erlanger Troy Detroit Greensboro Holland
STATE NC KY MI MI NC MI MI MI MI CT OH IL MI OH NC NY MI MI
ZIP 27371 41018 48083 48232 27410-6237 49423 48226 48326-2356 48089 06830 44633 61866 48111 43216-1008 28262-2337 10019 48025 48034
COUNTRY
Robert J Sidman co Lincoln Harris Llc Hal Novikoff Steven Susser P52940
Detroit Auburn Hills Warren Greenwichn PO Box 113 Holmesville Rantoul Van Buren Ste PO RFQ Office Township PO Box 1008 Columbus Charlotte New York Bingham Farms Southfield
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EXHIBIT B
EXECUTION COPY
CUSTOMER AGREEMENT1 1. Parties Collins & Aikman Corporation, including its affiliated chapter 11 debtors (collectively, the Debtors) and other relevant non-debtor subsidiaries and affiliates (collectively with the Debtors, the Supplier), but, for the avoidance of doubt, expressly excluding Collins & Aikman Automotive Hermosillo, S.A. de C.V. (Hermosillo); General Motors Corporation, for itself and on behalf of GM de Mexico S. de R.L. de C.V. and GM of Canada Limited (collectively, "GM"); Daimler Chrysler Corporation, for itself, DaimlerChrysler Canada, Inc. and DaimlerChrysler Motor Company, LLC (collectively, "DCC"); Ford Motor Company (Ford); AutoAlliance International, Inc. (AAI); Honda of America Mfg., Inc., for itself, Honda Manufacturing of Alabama, LLC and Honda of Canada Mfg., Inc., a division of Honda Canada, Inc. (collectively, Honda); (GM, DCC, Ford, AAI, and Honda collectively referred to as the Customers, and each a Customer); and JPMorgan, as agent for the Debtors senior, secured prepetition lenders (the Prepetition Agent) and as agent for the Debtors senior, secured postpetition lenders (the Postpetition Agent, and collectively, the Agents). After the postpetition lenders are paid in full, references herein to the Agents shall refer solely to the Prepetition Agent. All of the foregoing, excluding Hermosillo only, are referred to as the Parties. 2. Timing of Accommodations and Customers and Suppliers Obligations Upon the Bankruptcy Courts (a) entry of an interim order (the Approval Order) approving this Agreement and the Access Agreement (referenced below) and (b) entry of an order approving an amendment to the Debtors senior, secured postpetition financing agreement allowing for the Debtors to enter into this Agreement, the obligations under this Agreement will be effective as of November 26, 2006 (the Effective Date). The Debtors will move to have a motion to approve this Agreement and the Access Agreement heard for interim approval on an
1
The Customer Agreement and all exhibits attached hereto shall be referred to as this Agreement.
K&E 11520353.8
expedited basis on or before December 14, 2006 and support the entry of a final order approving this Agreement and the Access Agreement on January 11, 2007. If necessary, the Debtors further agree to prosecute timely any appeals should the Bankruptcy Court deny the approval motion. 3. Expedited Payment Terms Under this Agreement, subject only to Ordinary Course Setoffs (as defined in Section 8 below), each Customer shall continue to pay the Supplier on net instant terms (i.e., net five days, with no discount) or equivalent terms for each component part produced by the Supplier for such Customer until the earlier to occur of (a) cessation of production of such part by the Supplier for such Customer and (b) the closing date of a sale to a Qualified Buyer of the plant at which such part is produced. From the Effective Date through the earlier of (a) the Exit Date (defined below) for a plant set forth on Exhibit A (collectively, the Plastics & Convertibles Plants) and (b) the closing date of a sale to a Qualified Buyer (as defined below), each of DCC, GM, Ford and AAI (DCC, GM, Ford and AAI collectively being the Major Plastics & Convertibles Customers) will pay the costs incurred in operating each of the Plastics & Convertibles Plants allocable to the production of such Customers component parts (i.e., material, labor and plant overhead, together with prefunded items that the Major Plastics & Convertibles Customers agree should be included) in accordance with the funding protocol (the Funding Protocol) and budget, each attached hereto at Exhibit B (including any cost overruns of such budget). The Major Plastics & Convertibles Customers, in consultation with the Supplier and the Agents, will have the power under this Agreement to make the primary decisions with regard to adjustments of the cost levels (but not the allocations in such budget and the Funding Protocol) associated with Exhibit B (the Customer Powers). Although the Major Plastics & Convertibles Customers agree to consult with the Supplier and the Agents, the Customer Powers may be exercised in such Customers sole discretion, provided that such decisions must not (i) conflict with the other provisions of this Agreement, (ii) result in a violation of any law or regulation to which the Supplier is subject, or (iii) result in the Suppliers (a) inability to fund ordinary and customary maintenance (as determined based on the Suppliers past practice during the immediately preceding two years) on the Suppliers leased or owned property at any Plastics & Convertibles Plant or (b) otherwise damage or deteriorate the Agents collateral beyond ordinary wear and tear. Each Customer shall reimburse the Supplier for the reasonable outof-pocket costs incurred by the Supplier (net of any amounts actually realized by the Supplier for the property, such as scrap value received, it being understood that the Supplier has no obligation to seek to realize any amounts for such property) associated with disposing of that Customers personal property
4. Plastics & Convertibles Production Payments and Obligations
K&E 11520353.8
remaining on the Suppliers leased or owned real property after the Exit Date. "Exit Date" means, with respect to each Plastics & Convertibles Plant and Customer, the date on which no further production is required by the applicable Customer at such Plastics & Convertibles Plant; provided that such Customer shall provide not less than 15 days prior written notice to the Supplier, the Agents and any other Customer receiving production from the affected Plastics & Convertibles Plant as to its Exit Date for such Plastics & Convertibles Plant. 5. Administration Expenses; Suppliers and Agents Professional Fees and Expenses All administration expenses will be fairly allocated to either the Suppliers Hermosillo plant, the Plastics & Convertibles Plants (excluding the Hermosillo plant), the Suppliers carpet & acoustics division (the Carpet & Acoustics Division) or the Supplier. Commencing on the Effective Date and continuing through the cessation of production at the Plastics & Convertibles Plants, the Supplier will pay and each Major Plastics & Convertibles Customer will fund the amount of its allocable share of 100% of the administration expenses in accordance with the Funding Protocol and as set forth in the budget attached hereto as Exhibit C. Thereafter, and in any event after June 30, 2007, the Supplier will (a) not be entitled to any funding from the Major Plastics & Convertibles Customers pursuant to this Section 5 and (b) have no obligation to provide administrative, overhead or other support for production at any Plastics & Convertibles Plants unless requested to do so by either of the Agents (consistent with the Suppliers fiduciary duties). The Supplier and the Major Plastics & Convertibles Customers will use their best efforts to take all reasonable measures to minimize the amount of administration expenses, which administration expenses shall be reduced as Plastics & Convertibles Plants are either exited or sold, as the case may be, and the Suppliers proposed cost-cutting measures will be subject to the review and approval of the Major Plastics & Convertibles Customers and the Agents. From the Effective Date through the earlier to occur of (i) the date on which production ceases at the Plastics & Convertibles Plants and (ii) June 30, 2007, the Supplier will pay and each Major Plastics & Convertibles Customer will fund the amount of its allocable share of 100% of the Suppliers estate professional fees and expenses and the professional fees and expenses of the Agents and their advisors pursuant to the Funding Protocol and in accordance with budget set forth on Exhibit C. The Supplier will not be entitled to additional funding for administration expenses, fees and expenses from the Major Plastics & Convertibles Customers under this Agreement and, in no event, after the funding periods described in the first sentence of this paragraph and third sentence of the immediately preceding paragraph.
K&E 11520353.8
Notwithstanding anything to the contrary in this Agreement, the amounts of administration expenses, fees and expenses payable by the Major Plastics & Convertibles Customers in accordance with the two immediately preceding paragraphs may in the aggregate exceed the amounts set forth on Exhibit C by the Permitted Variance. The "Permitted Variance" means any amount in excess of the budgeted amount for the fiscal month of December 2006, and any amount in excess of the budgeted amount up to 18% of the cumulative aggregate budgeted amounts allocable under this Section to the Major Plastics & Convertibles Customers on Exhibit C (for clarity, excluding any fees and expenses of Customers' professionals) for periods after January 2, 2007, understanding that such limitation shall be tested as of the last business day of each fiscal month on a cumulative basis from and after January 2, 2007. For the avoidance of doubt, the Permitted Variance shall be calculated without regard to any Plastics & Convertibles Plant's profitability or cash flow. If the Permitted Variance is exceeded, the Major Plastics & Convertibles Customers are not required to fund amounts pursuant to this Section 5 in excess of the Permitted Variance, but the Major Plastics & Convertibles Customers will have no other remedies as a result of such excess, unless such excess otherwise results in the occurrence of a Supplier Default, in which case the Major Plastics & Convertibles Customers shall have the remedies set forth in Section 13 below. Notwithstanding anything to the contrary in this Agreement, the Supplier will continue to fund the professional fee escrow account, as and when required pursuant to the Supplier's senior, secured postpetition financing order; provided that any amounts funded into the professional fee escrow account that are not paid to a professional and are no longer required by such order to be retained in such escrow account shall be returned to the funding Customer or the Suppliers estate, as the case may be, in accordance with the same allocation pursuant to which the amounts were funded. Notwithstanding anything herein to the contrary, the parties further agree that any of the Suppliers professional fees incurred in connection with this Agreement and the actions contemplated hereby (including any plan and disclosure statement) shall be reviewed by the non-Supplier parties only for reasonableness. 6. Suppliers Obligations The Agents acknowledge that the Supplier may be required to use the Agents cash collateral in order to satisfy its obligations to fund its allocable share of the costs set forth in the budgets referenced at Exhibits B, C and D. The Agents consent to such use, provided that to the extent of the overlap between items covered in Exhibits B, C and D and items covered in Exhibit I, the limitations on the Agents' consent to the use of cash collateral contained in Section 15 shall be applicable. Retention bonuses (including any amounts denominated as severance, Retention Bonuses) will be paid to certain individuals
7. Retention
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in accordance with this Section 7. The Supplier will pay and the relevant Major Plastics & Convertibles Customers will fund the Retention Bonuses in accordance with the Funding Protocol, as allocated and at the times set forth in the budget attached hereto as Exhibit D (which Exhibit D shall include any WARN obligations of the Supplier and exclude any Canadian employee statutory obligations). Any changes and additional details in the terms of the Retention Bonuses, including the amounts and timing of the Retention Bonuses (but not the allocation percentages among the Supplier and relevant Customers) will be determined (a) in the case of Retention Bonuses allocated in Exhibit D solely to the relevant Customers, in accordance with the Customer Powers, and (b) in all other cases, by agreement of the Supplier, the Agents and the affected Customers. The provisions of this Section shall not affect any obligations of the Supplier under prior Court orders and the payment of those obligations as reflected in Exhibit D. Notwithstanding the foregoing, the Major Plastics & Convertibles Customers and the Supplier shall pay any other severance amounts that are required to be paid to any of the Suppliers United States employees under applicable United States law (as determined by a final order of the Bankruptcy Court if there is a disagreement), including WARN, in accordance with the Funding Protocol and the percentage allocations of Retention Bonuses to such employees in the budget attached hereto as Exhibit D, understanding that the Supplier, the Agents and the Major Plastics & Convertibles Customers shall work in good faith to minimize any obligations the Supplier may have under WARN. The relevant Major Plastics & Convertibles Customers, the Supplier and the Agents will work together in good faith to reduce, to the full extent possible, any Canadian employee statutory liabilities arising from the closure of Plastics & Convertibles plants located in Canada. In the event that any such liabilities must be paid at the Suppliers Scarborough, Gananoque or Windsor plants, the affected Major Plastics & Convertibles Customer(s), the Supplier and the Agents shall negotiate in good faith the appropriate allocation, if any, of such liabilities. The Customers agree not to exercise any setoff or reductions against postpetition accounts payable, other than Ordinary Course Setoffs; provided that this provision shall not affect any setoffs, recoupments or reductions a Customer exercised and implemented prior to November 1, 2006 (whether such setoffs, recoupments or reductions constituted Ordinary Course Setoffs) against postpetition accounts payable prior to the Effective Date so long as the Supplier knew of the amount of such setoffs, recoupments or reductions based upon the Suppliers receipt of debit memoranda or other customary notification by the Customer to the Supplier. Ordinary Course Setoffs means, for purposes of this Agreement, setoffs or any other reduction for: (a) postpetition defective or nonconforming products, quality problems, unordered or
8. Limitation of Setoffs
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unreleased parts returned to the Supplier, short shipments, misshipments, premium freight charges (not caused by a Customer), improper invoices, mispricing, duplicate payments or billing errors; (b) materials or components purchased by a Customer postpetition in lieu of the Supplier; and (c) each Customers professional fees and costs (collectively, the "Customer Professional Fees"), provided that an Ordinary Course Setoff may not exceed 3% of the face amount of any bona fide invoice or group of invoices for which payment is being made or account receivable or group of accounts receivable for which payment is being made. The remaining portion of any Ordinary Course Setoff in excess of the 3% limitation may be carried forward to the next invoice, as necessary, until such time as the Customer has realized the full amount of the Ordinary Course Setoff. Notwithstanding the foregoing, the Customers may not offset more than 10% of the Customer Professional Fees against accounts generated for shipments of component parts by the Supplier at the Carpet & Acoustics Division, which setoff right relating to the Customer Professional Fees against accounts generated at the Carpet & Acoustics Division in aggregate shall not exceed $1.3 million. For avoidance of doubt, the limitations contained in this Section 8 do not apply to (i) tooling payables or (ii) the terms and conditions of any settlements in which any one or more of the Customers enters in connection with the settlements referenced below and reflected on Exhibit F, unless the express terms of such settlement so provides. 9. Treatment of Customer Claims In consideration of, among other things, the releases in favor of each of the Customers (collectively, "OEM Releases") described in the Plan Term Sheet attached as Exhibit E, upon the occurrence of the effective date of a confirmed plan that contains the terms set forth on the Plan Term Sheet (Plan), including the OEM Releases in favor of each of the Customers, in form satisfactory to the Customers, each of the Customers agrees that, effective on that date: (a) any claim arising from any rights to its repayment approved by the bankruptcy court for (i) the launch costs paid by the Customers during the Debtors' chapter 11 case (other than launch costs incurred in connection with Hermosillo), (ii) junior secured claims, and (iii) the $30 million administrative loan, will be waived and discharged; (b) any claim for cap-ex shall be treated as provided by the agreements relating to such cap-ex funding and the court order(s) approving such agreements or as set forth in the Plan Term Sheet (other than in the case of Hermosillo, which shall be treated in accordance with a separate Hermosillo agreement); (c) it will not assert a claim against the Supplier in these chapter 11 cases for special or consequential damages and
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such claims shall be waived and discharged; (d) any other administrative expense claim against the Supplier for damages, including any prior surcharges, the amounts paid pursuant to this Agreement, and all other special or consequential damages arising out of or in any way relating to the Suppliers inability to perform, or breach of performance, under that Customers production and service contracts relating to the Plastics & Convertibles Plants will be waived and discharged; and (e) any other claim that would otherwise have to be paid in cash in full (absent agreement to different treatment by the holder thereof) pursuant to section 1129(a)(9)(A) of the Bankruptcy Code under a confirmed chapter 11 plan will be waived and discharged. Notwithstanding the foregoing or anything herein to the contrary, the Parties acknowledge and agree that, if after the Effective Date the Supplier breaches a purchase order, supply contract, this Agreement or any of its other obligations with the Customers related to manufacturing component parts for the Customers (excluding Hermosillo), the Customers shall not be entitled to an administrative claim for such breach, other than Ordinary Course Setoffs; provided that the Customers shall be entitled to administrative claims for damages up to $25 million in the aggregate for all Customers (subject to the allocation of such $25 million cap set forth on the attached Exhibit F) arising from postEffective Date shipments of component parts manufactured by the Carpet & Acoustics Division for (i) the Supplier's failure to deliver conforming parts consistent with the requirements of the Customer's applicable releases that actually has an effect on the assembly process of the subject vehicles (including delays, offlining or disruptions), and (ii) product liability/recall and warranty obligations. The Parties further acknowledge and agree that the Supplier and the Agents reserve defenses to any claims asserted pursuant to the proviso in this paragraph. For the avoidance of doubt, in the event that a Plan is confirmed that does not contain substantially all of the terms set forth in the Plan Term Sheet (or a Plan that contains changes to the Plan Term Sheet that are not materially adverse to the Customers, in the Customers reasonable discretion), including the OEM Release in favor of each Customer, in form satisfactory to the Customers, or no plan is confirmed in these chapter 11 cases, then the administrative claims described in clauses (a), (d) and (e) of this Section, and any other administrative expense claims then held by the Customers, shall continue to constitute administrative expense claims that must be paid in cash and in full (absent agreement to different treatment by the holder thereof) to the Customers on the effective date of any plan that is confirmed in accordance with section 1129(a)(9)(A) of Bankruptcy Code, or treated in
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accordance with other applicable law in the event that no plan is confirmed. The Customers agree to pay to the Supplier the respective amounts listed on the Customer-specific Exhibit F on the dates set forth in Exhibit F in full resolution of any prepetition claims that the Supplier may have against the Customer. 10. Sale Process Until the Determination Date (defined below), each Customer agrees to support the Suppliers efforts to sell (the Sale Process), either as a whole or in part, to one or more Qualified Buyers (defined below) the plants and divisions listed on Exhibit G. Qualified Buyer with respect to a sale means a buyer that demonstrates to the reasonable satisfaction of all of the Customers whose production is directly affected by such sale that it (i) possesses the financial capabilities, business plan and management to acquire and operate each plant that it purchases without interruption of the supply of component parts to the affected Customers, (ii) has sufficient working capital, financial stability and economic resources to meet the affected Customers production needs in the future and (iii) agrees to assume (or otherwise undertake) each Customers current production contracts and service parts contracts for parts manufactured at the Carpet & Acoustics Division or relevant Plastics & Convertible Plant, as the case may be, without modification, unless such Customer otherwise agrees to such modification. With respect to the Carpet & Acoustics Division, the "Determination Date" is the earliest of (a) the date on which the Supplier, the Agents and the Customers agree that the Sale Process should be terminated with respect to the Carpet & Acoustics Division, (b) the "Target Date" for the Carpet & Acoustics Division set forth on Exhibit G, unless Supplier has theretofore obtained Court approval of a sale or sale procedure, and an accompanying "stalking horse bid" (as evidenced by an executed asset purchase agreement), with respect to the sale of the assets of the Carpet & Acoustics Division to a Qualified Buyer (it being understood that, for the purposes of this clause (b) only, if any Customer has not determined whether the proposed stalking horse should be qualified or unqualified at the time the Supplier files its motion seeking such court approval, such stalking horse shall be deemed a Qualified Buyer, provided that sufficiently in advance of filing such motion, the Supplier has identified the proposed stalking horse and provided the affected Customers with adequate information from which the affected Customers may make a determination as to whether such proposed stalking horse constitutes a Qualified Buyer) pursuant to Section 363 of the Bankruptcy Code, (c) the date of the closing of a sale of the assets of the Carpet & Acoustics Division to a Qualified Buyer, and (d) the "Target Closing Date" for the Carpet & Acoustics Division set forth on Exhibit G. With respect to the Plastics & Convertibles Plants that the Supplier,
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the Agents and the Customers determine are potentially saleable, the "Determination Date" for each such plant shall be the earlier of (i) the date on which the Supplier, the Agents and the Customers agree that the Sale Process should be terminated with respect to such plant set forth on Exhibit G, (ii) the "Target Date" for such plant, unless the Supplier has theretofore entered into a definitive asset purchase agreement for such plant as set forth on Exhibit G with a Qualified Buyer, (iii) the date of the closing of a sale of the assets of such plant to a Qualified Buyer and (v) the "Target Closing Date" for such plant set forth on Exhibit G. The Customers agreement to support the Sale Process includes an undertaking not to seek price decreases (except as may be provided for in existing postpetition purchase orders) or other modifications to the existing contracts for the parts manufactured at the Carpet & Acoustics Division or relevant Plastics & Convertible Plant, as the case may be, that might reasonably be expected to result in a reduction in the sale price for the Carpet & Acoustics Division or relevant Plastics & Convertible Plant, as the case may be, from the price that a Qualified Buyer would have otherwise paid absent such modification. The Customers agreement to support the Sale Process and to defer from resourcing (to the extent described below) during the Sale Process is subject to the Agents agreement that they will support the sale of the plant(s) to a Qualified Buyer and transfer their liens to sale proceeds if the following criteria are satisfied: (i) the agreed upon marketing process as recommended by the investment banker retained to support the Sale Process in consultation with the Supplier, the Agents and the relevant Customers, and timeline is implemented in all material respects; and (ii) the aggregate sale proceeds are at least equal to the fair market value as determined by the investment bank selected to supervise such marketing process (who shall be mutually acceptable to the Agents, the Supplier and the affected Customers), taking into consideration the agreed marketing process and timeline, the current state of the relevant plant and the existing contract terms for the parts produced at such plant. 11. Inventory Purchase On the fifth business day following entry of the Approval Order, each Major Plastics & Convertibles Customer shall purchase inventory from Supplier, which inventory is related to the production of its component parts from the Plastics & Convertibles Plants and which is usable and merchantable (as those terms are defined below) (collectively, the Customers Inventory). The purchase price advance to be paid by each Customer will be 60% of the gross book value of such inventory as of the Effective Date, subject to later adjustment as provided herein. Subject to the physical inventory, or other analysis required to validate the Supplier's perpetual inventory records, described below and the costing of the affected Customers Inventory by the Supplier, in
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cooperation with the affected Customer and the Agents, the value of the affected Customers Inventory shall be trued up, and to the extent that there is an overpayment by an affected Customer, the Supplier shall refund such overpayment to such Customer, and to the extent that an affected Customer has not paid the true value of its inventory, such Customer shall pay to the Supplier the amount of such underpayment, in either case, within 30 days of delivery of the Inventory Report, defined below. The Supplier will take a physical inventory of the Plastics & Convertibles Plants consistent with the annual inventory schedule. The Supplier will provide the detailed perpetual inventory record as of the Effective Date along with the reconciliation to the general ledger and supporting detail. The Supplier will provide access to all detail and analysis used to assess usable and merchantable inventory and information used for inventory reserve purposes, which data shall be provided electronically where reasonably practical. The Supplier will provide all data reasonably necessary to validate inventory costing methods and valuations. If the Supplier took the annual physical inventory at a plant prior to the Effective Date, the Major Plastics & Convertibles Customers and the Agents, at their option, may perform test counts and other procedures to validate the inventory system, and if reasonably necessary, request that the Supplier take another physical inventory. All inventory adjustments taken subsequent to the Effective Date that are not unequivocally related to the postEffective Date period shall be deemed to be adjusted as of the Effective Date. Third party consigned inventory shall be excluded from the Suppliers inventory and remain unaffected by this Agreement. The Supplier agrees to provide, upon a Customers reasonable request, sample data to support the validation of the inventory costing methods and valuations. The value of the inventory (the Inventory Value) as of the Effective Date shall be determined by the Supplier as of such date, by applying generally accepted accounting principles, consistently applied, as soon as possible after the completion of the physical inventory. Solely for the Inventory Report (as defined below), the methodology shall treat inventory that is not usable or merchantable (as such terms are defined below) valued at zero. Representatives of the Agents and each Major Plastics & Convertibles Customer shall be permitted to observe the physical inventory and receive all of the Suppliers data regarding costing the inventory and all book to physical adjustments as soon as it is available. The final report regarding the inventory (the Inventory Report) shall be divided on a plant-by-plant basis, with the inventory in each plant identified to each Customer. The assignment of final Customer Inventory shall be completed by the Major Plastics & Convertibles Customer representatives.
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For purposes of this Agreement, the term useable means finished goods, work in process or raw materials that were purchased or produced pursuant to Customer releases and are not otherwise obsolete. For purposes of service parts, useable means finished goods inventory reasonably expected to be ordered by the Major Plastics & Convertibles Customer within nine months following the purchase date provided herein. The term merchantable as used in this Agreement means merchantable as that term is defined in U.C.C. 2-314 (or any successor statute) and in conformance with all applicable Purchase Order specifications. To the extent that inventory is deemed not usable or merchantable (the Non-Purchased Inventory), the Major Plastics & Convertibles Customers and the Supplier shall be jointly responsible for physically identifying, accounting for and cooperating with one another in the physical segregation of the Non-Purchased Inventory. The purchase price for the Major Plastics & Convertibles Customers Inventory to be purchased under this Agreement (the Purchase Price) will be calculated as follows: (i) (ii) raw materials 100% of the standard cost; work in process 95% of standard cost; and
(iii) finished Component Parts the existing Purchase Order price for the component part in question. For purposes of subparagraphs (i), (ii) and (iii), each Major Plastics & Convertibles Customer may, within 30 days after the receipt of the Inventory Report, present documentation to the Supplier showing that the Purchase Price paid or to be paid is greater than the Purchase Price as determined by the Inventory Report. The Supplier, with the consent of the Agents, may either accept the adjustment to the Purchase Price of the affected Customers Inventory and lower the Purchase Price to be paid or refund the excess amount paid, or disagree with the calculations. Any undisputed amount must be paid within 45 days after the delivery of the Inventory Report. If agreement cannot be reached between the affected Customers and the Supplier, with the agreement subject to the approval by the Agents, within ten days after delivery of the calculations to the Supplier, or any longer period to which the affected Customer and the Supplier agree, with the approval of the Agents, the parties shall select an independent third party accounting firm (the Third Party Neutral) to which the dispute shall be referred. The parties shall agree upon a process by which the Third Party Neutral shall resolve the dispute. The Third Party Neutrals decision shall be final and binding on all parties with all of the Third Party Neutrals fees and expenses shared equally among the parties. The foregoing dispute resolution process is referred to as the Dispute Resolution Process. The Supplier and the Agents agree that once purchased, each
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Customers Inventory is owned by that Customer and bailed at the Suppliers facilities. The Supplier and Agents consent to the Major Plastics & Convertibles Customers filing all necessary UCC financing statements evidencing the (i) bailment by the Major Plastics & Convertibles Customers of the Major Plastics & Convertibles Customers Inventory purchased under this Agreement and (ii) discharge of the Agents liens in such purchased inventory. Any work in process or finished goods inventory relating to the Major Plastics & Convertibles Customers but not purchased by the Major Plastics & Convertibles Customers must be properly disposed of by the Supplier using an approved scrap disposal service to ensure that such parts do not enter the market place. The Approval Order shall provide that any inventory purchased pursuant to this Section shall be sold free and clear of all liens and encumbrances. 12. Resourcing Each Customer agrees not to resource its programs currently subject to an issued purchase order and in production at the Suppliers plants set forth on Exhibit G, other than as set forth on Exhibit G, until the earliest of (a) the Determination Date, in respect of the applicable plant, (b) the date of the closing of a sale of a plant or plants to a Qualified Buyer and (c) the first date on which a Matured Supplier Default (as defined below) exists in respect of the applicable plant and Customer; provided that this Section does not prohibit the Customers from taking action to prepare for resourcing at any of the Suppliers plants, including, but not limited to, entering into the Suppliers facilities and/or conducting discussions, negotiations and entering into agreements regarding the component parts (but, in the case of the Carpet &Acoustics Division, not bringing potential new suppliers into the Suppliers plants), nor does the foregoing prohibit resourcing to which the Supplier, the Agents and the relevant Customer have previously agreed or may hereafter mutually agree. In the event that (a) the Supplier and a Qualified Buyer enter into a definitive purchase agreement relating to the Carpet & Acoustics Division on or before the Target Date listed on Exhibit G for the Carpet &Acoustics Division, (b) no Determination Date has occurred with respect to the Carpet & Acoustics Division and (c) there is no imminent material interruption to a Customers production at such Division, the Customers agree to refrain from requesting that any Alternate Supplier (as defined below) enter a Carpet & Acoustics Division plant. For the avoidance of doubt, if a Determination Date occurs with respect to the Carpet & Acoustics Division, the Customers shall have all of the rights set forth in Section 16 below and the Supplier shall cooperate fully as set forth in Section 16. The Supplier will cooperate fully and assist each Customer in all of its resourcing preparations, the cost of which resourcing
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preparation shall be borne by the relevant Customer. For clarity, nothing in this Section is intended to constitute a prohibition (or other restriction or limitation) upon any Customers resourcing of, upon reasonable notice to the Supplier and the Agents, any component or service parts produced at any of the Unsold Plastics Plants or plants that are not identified on Exhibit G and the Supplier will cooperate fully in facilitating such resourcing, including the removal of tooling by the Customer. The Customers shall use their best efforts to give the Agents, the Supplier and any other affected Customer 15 days notice prior to completion of any resourcing at a Plastics & Convertibles Plant permitted under this Agreement. The forgoing prohibitions, restrictions and limitations on resourcing do not apply to resourcing to which the Supplier, the Agents and the relevant Customer have previously agreed or may hereafter agree, and such resourcing does not and will not constitute a violation of this Section or Agreement, or the relevant Customers agreement to support the Sale Process. 13. Default by Supplier A Supplier Default occurs if (a) the Supplier fails to meet its obligations to continue to produce component parts at a given plant as required by this Agreement, (b) the Supplier fails to pay the obligations it has undertaken to pay in this Agreement at a given plant for a reason other than Customers failure to fund in a timely manner or (c) the Suppliers secured lenders terminate the Suppliers right to use cash collateral or otherwise enforce remedies upon an occurrence of an event of default under the terms of the Suppliers loan agreements; provided that no Supplier Default shall occur due to (a) Force Majeure Event (defined below), (ii) lack of funding for cap-ex, tooling or launch costs, or (iii) the failure of a Customer to fund under this Agreement. Force Majeure Event means any delay or failure of the Supplier to perform its obligations if the Supplier is unable to produce, sell or deliver goods covered under this Agreement, as the result of an event or occurrence beyond the reasonable control of Supplier and without its fault or negligence, including, but not limited to, acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, war, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labor equipment or transportation, or court injunction or order. Although this Section limits the Customers rights to resource for a certain period of time during a Force Majeure Event, the Customers shall have complete and full rights to cover by seeking and securing production from alternative sources during a Force Majeure Event. Further, if a Force Majeure Event lasts for more than 30 days, the Customers shall have the right to resource from the affected plant or plants and terminate any further obligations to pay or reimburse the Supplier for amounts allocable to the plant or plants where that Force Majeure Event remains.
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In the event a Supplier Default is not cured by the Supplier within (a) in the case of a Carpet & Acoustics Division plant, ten days and (b) in the case of a Plastics & Convertibles Division plant, two days (as applicable, the Cure Period) after declaration of a Supplier Default, the Customers may, but shall not be obligated, to resource production at the affected plant or plants and terminate any further funding obligations to pay or reimburse the Supplier for amounts allocable to that plant or plants where the Supplier Default occurred. Upon such event, if the Customers elect to resource pursuant to the rights set forth in this Section, the Supplier will cooperate fully in facilitating such resourcing, including the removal of Customer Tooling and Unpaid Tooling , at the Customers expense. Notwithstanding the foregoing, a Customer may take action immediately (i.e., without waiting for expiration of the applicable Cure Period) in the event that, because of the Supplier Default, there is an imminent material interruption (as defined below) of production or launch for such Customer. For Carpet & Acoustics Division Plants only: For purposes of this Agreement with respect to Carpet & Acoustics Division Plants, "imminent material interruption" shall refer to the occurrence of a Supplier Default that would result in the cancellation by the relevant Customer of a portion of a labor shift at a specific plant or sending the Customers labor force at a specific plant home from a shift (a Material Supplier Default). In the event of a Material Supplier Default, a Customer may immediately resource from the Carpet & Acoustics Division plant unless: (i) the Supplier has previously built for the Customer a minimum of seven days of inventory bank on the part(s) in respect of which the Supplier Default has occurred; (ii) the Supplier can remedy the cause of the Supplier Default before the Supplier has utilized more than two days supply of any then existing inventory banks of the relevant part(s) (but, in any event, within 48 hours after the occurrence of the Supplier Default); (iii) the Customer is given adequate assurance that the cause of the Supplier Default has been remedied and will not likely reoccur; and (iv) no prior Material Supplier Default has occurred with respect to the particular component part(s) or plant, as the case may be, in respect of which the Supplier Default has occurred. Notwithstanding the preceding sentence, if at the time of the occurrence of the Material Supplier Default, the Supplier is also in default of its obligations under Section 23 of the Agreement, the Supplier may not utilize any then existing inventory banks and the affected Customer may immediately resource. To the extent that the Supplier utilizes any portion of any affected Customers inventory banks for a part produced at a Carpet & Acoustics Division plant, the Supplier shall
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promptly thereafter replenish such inventory banks upon the Suppliers remedy of the cause of the Supplier Default.
For Plastics & Convertibles Plants Only: For purposes of this Agreement with respect to Plastics & Convertibles Division Plants, "imminent material interruption" shall refer to the failure of the Supplier to timely deliver conforming parts consistent with the terms of this Agreement, the consequence of which would be, in the exercise of the relevant Customers reasonable judgment, an imminent material disruption in such Customers assembly operations (without utilization of any parts contained in such Customers inventory bank, if any) (a Material Supplier Default). For the avoidance of doubt, during the pendency of any Material Supplier Default, the affected Customer(s) will be excused from funding amounts allocable to production of the relevant parts at the plant at which such Material Supplier Default is in existence during the period in which it received no production of such parts. A Material Supplier Default which has given rise pursuant to the provisions of this Section 13 to a right in favor of the affected Customer to resource with respect to the affected plant is referred to as a Matured Supplier Default. The further Parties acknowledge and agree that, upon the occurrence or assertion of the occurrence of a Supplier Default, each Party (a) shall have the right to seek specific performance of the obligations of the other Parties under the Agreement related to (or alleged to be excused by) such actual or alleged Supplier Default, and (b) consents to an expedited hearing on any motion or other proceeding seeking such relief. The Parties further acknowledge and agree that 24 hours actual notice of such requested expedited relief shall constitute adequate notice thereof. 14. Customer Payment Failure If the Customers, or any one of them, fail to fund, reimburse or pay Supplier pursuant to the terms of this Agreement (a Customer Payment Failure), Supplier may, but shall not be obligated to, after three business days after written notice to the Customer(s) causing the Customer Payment Failure, cease production for such Customer(s), which cessation shall not be a Supplier Default; provided that if a dispute exists with respect to a Customers obligation under this Agreement, the relevant Customer(s), the Supplier and the Agents shall meet in good faith to resolve the dispute by teleconference or in-person during normal business hours not later than two business days after Supplier notifies the relevant Customer(s) of the Customer Payment Failure; provided further that (a) the relevant Customer(s) may file a motion before the Court to resolve the issue, and (b) the Supplier shall continue production pending determination by the Court if the Customer(s)
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has paid the amount in dispute not later than three business days following written notice of a Customer Payment Failure. If the Court determines that the Customer(s) should not have paid the amount in question, the payment shall be immediately returned to the relevant Customer(s). In the event of a Customer Payment Failure by one or more Customers, during such period of non-payment, the nonpaying Customer may not exercise its rights under the Access Agreement. 15. Plan The Supplier shall file a plan and accompanying disclosure statement that conforms with the terms set forth on Exhibit E and is otherwise consistent with the provisions of this Agreement (the Plan). The Parties agree to support the Plan so long as (i) the proposed treatment of the Parties claims, if any, under the Plan is not materially worse than the treatment set forth on Exhibit E as determined by the respective Parties in their reasonable discretion and (ii) the releases set forth on Exhibit E are in the Plan. In the case of the Agents and the steering committee members referred to in the next sentence, such support includes (i) voting to accept such Plan in its individual capacity as a lender, (ii) consenting to the use of cash collateral to pay the administrative expenses and priority claims described in Exhibit H to be paid by the estate during the term of this Agreement and/or pursuant to the Plan (it being understood that the amounts set forth in such Exhibit are estimates, and the actual amounts thereof may be smaller or larger), (iii) not seeking distributions to them from the estate that would leave the estate with inadequate resources to pay such administrative expenses and priority claims and (iv) general support of the Suppliers chapter 11 cases consistent with this Agreement and the Plan; provided that the aggregate amount of such administrative expense and priority claims after reasonable attempts, if necessary, to compromise or reduce such claims, shall not exceed the highest aggregate estimate set forth in such Exhibit by more than $25 million. The Prepetition Agent confirms that a majority of the members of the unofficial steering committee of senior secured prepetition lenders agrees to support the Plan and the cases as set forth in this Section. Nothing herein shall be deemed a solicitation of votes to accept the Plan. This section applies immediately with respect to the Unsold Plastics Plants (listed on Exhibit I) and any other permitted resourcing, and with respect to any plant on Exhibit G that is not sold by the plants Determination Date, immediately after its Determination Date (collectively, the Wind Down Plants). The Customers will develop and propose to the Supplier, for the Suppliers review, comment and approval (which approval will not be unreasonably withheld or delayed), detailed resourcing plans (collectively, the Transition Plans) for the Customers respective
16. Transition Planning
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component parts produced at the Wind Down Plants. The Supplier will use commercially reasonable efforts to make available to the Customers its personnel (e.g., the Supplier's engineering, purchasing personnel, etc.) and facilities in order to assist the Customers in connection with any questions or issues which may arise in connection with the Transition Plans, all as reasonably required by the Customers. The Supplier will use commercially reasonable efforts to allow reasonable access by and support for the Customers to the Supplier's supply base (Tier II and, to the extent appropriate, Tier III suppliers to the Customers) and consent to entry by the Customers into discussions and negotiations with the Supplier's suppliers and sub-suppliers regarding the continued supply of subcomponents and the transition of the component parts produced at the Wind Down Plants. To the extent a given plant on Exhibit G utilizes a Wind Down Plant as a Tier II or Tier III supplier, the Supplier will support the Customers efforts to resource such Tier II or Tier III products supplied by such Wind Down Plant to the Customers alternative suppliers (collectively, Alternative Suppliers). Subject to the resourcing restrictions in Section 12 of this Agreement, the Supplier will allow Alternative Suppliers access to the Plastics & Convertible Plants, as and when reasonably agreed upon by the Supplier and the Alternative Supplier, and subject to such conditions as the Supplier may reasonably require (including inspection of tooling, machinery and equipment). Subject to the resourcing restriction in Section 12 of this Agreement, the Customers will have the option of either requesting the Supplier to assign existing supplier contracts (including for direct ship suppliers) that are solely attributable to the production of the Customers component and service parts, or to establish new vendor arrangements. In either case, there will be an effective release of the Supplier from any liability arising out of events that occur after the assignment and, if appropriate, an effective termination of existing contracts. In the event a Customer requests assignment and such assignment gives rise to prepetition "cure" payments (to an entity other than another Debtor or Supplier), the Customer shall be responsible to compensate the Supplier for such prepetition payments in cash for which the Customer will receive an allowed, pre-petition unsecured claim for any such payments. The Supplier will cooperate fully with the Customers in the resourcing and transition of all Service Parts Operations (SPO) parts produced at a Wind-Down Plant, including, to the extent necessary, producing all-time buys for certain SPO parts subject to mutually agreeable terms and conditions.
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17. Purchase Options
Subject to Exhibit F, this Agreement shall not be deemed to affect any option to purchase machinery and equipment granted by the Supplier to a Customer in a post-petition contract or pursuant to a separate agreement with a Customer. The Customers and the Supplier agree as follows in connection with the Intellectual Property (as defined below): Within 30 days of the execution of this Agreement with respect to each Unsold Plastics Plant and component parts for which resourcing is otherwise permitted, and within 30 days after the occurrence of the Determination Date with respect to any plant on Exhibit G, Supplier will develop and provide to each Customer a detailed listing of all currently existing intellectual property owned, licensed or otherwise utilized by Supplier (including, but not limited to, all patents, patent applications, trademarks, copyrights, inventions, licenses, discoveries, trade secrets and designs, regardless of whether such items are now patented or registered, or registerable, or patentable in the future and all related documents and software) in any component and service parts the Supplier directly or indirectly sells to the respective Customer that are produced at such plant(s). The intellectual property to be identified pursuant to the preceding sentence, and any other intellectual property used to produce production parts or service parts at any Unsold Plastics Plants or other Wind Down Plants (whether or not the intellectual property is identified), is referred to as the Intellectual Property. The Supplier grants to the Customers, other than Auto Alliance International, Inc., irrevocable, fully paid, worldwide exclusive licenses for the Intellectual Property required for or of assistance in the production of the component and service parts currently manufactured by the Supplier, to make, have made, use, have used, modify, improve, prepare derivative works of, distribute, display, offer to sell, sell, import and do all other things and exercise all other rights in the Intellectual Property necessary or useful to conduct the Customer's business relating in any way to such Customers existing Purchase Orders, including in the production of new vehicles by the Customers or the Customer's subsidiaries or affiliates or in respect of service obligations for used Customer vehicles. Any license granted pursuant to this Section shall also apply to any new model year changes, refreshes or follow-ons platforms and programs incorporating the Intellectual Property. This Section is not intended to limit or otherwise restrict any rights granted to the Customers in the Purchase Orders or any other agreement, but is intended to expand those rights.
18. Intellectual Property
19. Tooling Acknowledgment
The Approval Order shall provide that, excluding: Unpaid Tooling (defined below) and Supplier Tooling (defined below), the Customers own, free and clear of all liens, claims and
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encumbrances all tooling, dies, test and assembly figures, gauges, jigs, patterns, casting patterns, cavities, molds and documentation including engineering specifications, test reports, PPAP books and production sheets (Customer Tooling) used in the production of their respective component parts. "Unpaid Tooling" means tooling subject to a Customer purchase order, the disputed amount of which has not been fully paid to the Supplier. "Supplier Tooling" means tooling and certain capital equipment which has never been the subject of a Customer tooling or capital equipment purchase order. The Approval Order shall further provide that, the Customers have the right to immediate possession of the Customer Tooling and Unpaid Tooling used at any Unsold Plastics Plants, or immediately upon obtaining the right to resource the parts produced using the Customer Tooling and Unpaid Tooling at any of the other plants, in each case, without further order of the Court or payment by the Customers of any kind; provided that in the case of Unpaid Tooling, (a) the Customer has paid to the Supplier all undisputed amounts of the relevant tooling purchase order, (b) the Supplier reserves any claim or right to payment for the disputed amounts against the respective Customer (but may not withhold delivery of possession of the Unpaid Tooling to such Customer pending such payment) and (c) in the event such disputed claim or right to payment is not resolved and paid within 30 days after any Unpaid Tooling has been delivered to a Customer, the Supplier may require by notice to such Customer that the parties enter into non-binding mediation to attempt to resolve the dispute; provided further that, notwithstanding clause (c) above, the Supplier may file an action in the Bankruptcy Court or other court of competent jurisdiction to prosecute its claim for the disputed amounts. The Approval Order shall further grant the Customers an option to purchase at the Supplier's cost all Supplier Tooling free and clear of all liens claims and encumbrances without further order of the Court and upon payment take immediate possession of the Supplier Tooling; provided that the cost and treatment of any Supplier Tooling to be transferred to the relevant Customer shall be at the amount set forth on Exhibit F. Further, this Section is not intended to limit or restrict any rights of the Customers in their Purchase Orders or other agreements, but rather is intended to expand those rights. Upon the execution of this Agreement, the Supplier will enter into the Access Agreement applying to all Plastics & Convertibles and Carpet & Acoustics Division plants in the form attached hereto as Exhibit J (the Access Agreement).
20. Access Agreement
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21. Non-Participating Customers
22. Supplier Tooling, Launch Cost and Capital Expenditure Obligations
The Supplier shall use its commercial best efforts to obtain agreements, in the form attached as Exhibit K, from all customers whose production at a Plastics & Convertibles Plant is greater than 5% of the business at that plant and is not a Customer (the Other Customer) which provides that in order to maintain production for the Other Customer, the Other Customer must (i) pay certain price surcharges to cover production costs; (ii) purchase merchantable and useable inventory associated with their respective production upon resourcing; (iii) waive any setoffs, other than ordinary course of business setoffs, such as postpetition defective or nonconforming products, quality problems, unordered or unreleased parts returned to the Supplier, short shipments, misshipments, improper invoices, mispricing, duplicate payments or billing errors; (iv) immediately pay all outstanding accounts and pay all future accounts on net immediate terms; and (v) waive any damage claims against the Supplier arising from the surcharges, waivers and other transactions contemplated by such agreement. The Supplier may not use any funding provided directly or indirectly by the Customers or through the Customer accommodations to manufacture parts for Other Customers who do not execute an agreement of the above terms. Notwithstanding anything to the contrary herein, the Customers agree that, on or after the Effective Date, the Supplier shall not be obligated to perform any work, make any payments or incur any costs or obligations for capital expenditures, tooling, launch costs or otherwise directly related in each case to the Plastics & Convertibles Plants, other than as set forth on Exhibit C (plus the Permitted Variance). The Customers shall make any payments on account of such (a) tooling, (b) Capital Expenditures (defined below) (each such payment being a Cap-Ex Advance) or (c) launch costs related to the Plastics & Convertibles Plants directly to the applicable vendor or provider, as the case may be. If a Customer makes a payment for tooling directly to a vendor after the Effective Date, the Customer shall receive a credit from the Supplier against any obligations owed under the corresponding Customer-issued tooling purchase order or authorization to which the tooling in question applies, as the case may be. Capital Expenditures means specific costs incurred, or cash payments made by a Customer, after the Effective Date, including without limitation, costs or payments for installation and commissioning of newly-acquired equipment and plant and equipment set-up expenses and rearrangement, relocation and refurbishment costs for existing plant, property and equipment that are pre-approved by the applicable Customer; provided that in no event shall such Capital Expenditures duplicate launch costs.
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If a Customer makes a Cap-Ex Advance, such Customer shall have a purchase money security interest (PMSI, which term, when used in respect of Suppliers facilities located outside the United States of America, shall mean and refer to such lien and security interest as shall under the law pertaining to such facility have rights substantially equivalent to those of a PMSI under the law of the State of Michigan) in such funded capital equipment to secure the Cap-Ex Advance in respect of such equipment; provided that with respect to additions or improvements in existing capital equipment, the Customer will obtain a security interest subject and junior to existing security interests, including, without limitation, those in favor of the Agents, securing an amount equal to all amounts previously funded by Supplier or any lender for whom an Agent acts in respect of such exiting capital equipment (each, a Junior Security Interest). Until so repaid, the Cap-Ex Advance shall constitute indebtedness secured by a PMSI in the capital equipment for which the Cap-Ex Advance is made, as described above, and in the event the value of such PMSI and the Junior Security Interest, if applicable, shall not be sufficient to fully secure the unpaid amount thereof, the unpaid portion will be repaid on the same terms (including full subordination terms) as the Customers subordinated DIP loan (but without interest), including the treatment set forth section 9(a) of this Agreement. The PMSI and any other liens obtained pursuant to this Section will be valid and perfected without the necessity of the execution or recordation of mortgages, security agreements, pledge agreements, financing statements, or other similar documents. The allocation and quantification of any liens granted pursuant to this section shall be subject to the reasonable consent of the Agents. Subject to capacity (including machine capacity, available personnel and raw materials), funding and full cooperation by the relevant Customer in making packaging, storage and transportation available to the Supplier (the Parts Bank Conditions), the Supplier will build parts banks as requested by a Customer for parts manufactured at any of the Suppliers plants. The budgets discussed herein will take into account any incremental cost of the production of a bank of parts. The required parts banks are set forth in the schedule attached hereto as Exhibit L or may otherwise be provided by the Customer to the Supplier. Each Customer will be responsible for all expenses associated with building such Customers inventory bank of component parts, including, without limitation, costs related to packaging, overtime, interim storage and transportation. With respect to the Carpet & Acoustics Division, the foregoing obligation to build a parts bank will be limited to a parts bank of no more than three weeks unless and until (a) the
23. Inventory Banks
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Agents and the Customers agree that the Sale Process should be terminated with respect to the Carpet & Acoustics Division, or (b) the Supplier has not entered into a contract with respect to the sale of the assets of the Carpet & Acoustics Division to a Qualified Buyer pursuant to Section 363 of the Bankruptcy Code by January 31, 2007, in either of which events, at a Customers request, the Supplier shall build an additional three weeks (or six weeks of parts bank, as the case may be) of parts bank for the requesting Customer, with such additional parts bank to be completed as promptly as possible thereafter subject to the Parts Bank Conditions. 24. Effect of NonApproval In the event that this Agreement or the Access Agreement is not approved by the Court in their entirety, then this Agreement shall not be effective, it being agreed and understood that a number of concessions have been made by each of the parties to this Agreement solely on the basis of the terms of this Agreement and the Access Agreement. Application of Certain Amounts Funded Hereunder The amounts funded by the Major Plastics & Convertibles Customers with respect to each Plastics & Convertibles plant, along with any accounts receivable generated after the Effective Date from such plant and the inventory purchased after the Effective Date by the Debtors at such plant, to the extent those funds and inventory are not used in the operation of such plant or used to fund the amounts referenced in Exhibits B, C and D of the Customer Agreement, will be held by the Debtors and not applied to the Agents' loans until the applicable "true-ups" under the Funding Protocol have been completed for such plant. For clarity, the foregoing does not apply to amounts paid by Customers for inventory pursuant to Section 11 of the Customer Agreement. Several Liability Each Customer will be severally liable for its own obligations under this Agreement and shall not be jointly, or jointly and severally, liable with any other Customer for that Customers obligations under this Agreement. Access to Books and Records The Supplier will provide the Customers, the Agents and their respective agents and representatives, consultants and employees reasonable access to the Suppliers operations, books, records, officers and employees at reasonable times during business hours, or outside of business hours upon reasonable request, only for the purposes of monitoring the Suppliers compliance with the terms of this Agreement and any other agreements and contracts between each Customer and the Supplier; provided that (a) the information will not be used by the Customers for any other purpose, including
25. General Provisions
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pricing; (b) the information will be disclosed to any person or entity, only on a need-to-know basis; and (c) the information will not be divulged to any third party, unless the person or entity to whom/which it is to be divulged has signed, or is otherwise subject to, a confidentiality agreement in favor of the Supplier, or the Customer is compelled or required to divulge the information by law. The Supplier agrees to fully cooperate with the reasonable requests of agents, representatives, consultants, officers and employees of the respective parties to accomplish the ends contemplated by this Agreement. Notwithstanding the foregoing, if in the opinion of legal counsel to the Supplier, sharing information would violate a law or regulation, or be in conflict with the fiduciary duties of the Supplier as a debtor in possession (a Violation of Law), within two (2) business days of the request for such information or the determination by the Supplier in the ordinary course that the routine disclosures would be a Violation of Law, the Supplier will notify the Customers of the opinion and the nature of the materials that the Supplier has been advised not to share. The Supplier within three business days of the request may seek a protective order from the Court and will seek an expedited hearing in the Suppliers chapter 11 cases, seeking a ruling from the Court. In the event a request of the Court is not made by the Supplier within three business days of the request for the information, the Supplier shall provide the Customers with the requested information. Authorization and No Conflict. Each party executing this Agreement represents and warrants that it has the corporate power and authority to execute this Agreement, that this Agreement has been duly authorized by the party and that this Agreement does not conflict with any material agreement to which it is a party (in the case of the Supplier, after receiving any necessary approvals). Cooperation Each party agrees to cooperate fully with the other parties and to take all additional actions that may be necessary in the reasonable opinion of the party to give full force and effect to this Agreement. Waivers and Amendments; Successors and Assigns No term or provision of this Agreement may be waived, altered, modified or amended, except by a written instrument duly executed by the parties to this Agreement. This Agreement and all of the other parties obligations are binding on their respective successors and permitted assigns, and together with the rights and remedies of the parties under this Agreement, inure to the benefit of the parties and their respective successors and permitted assigns. The Supplier may not assign or transfer any right or obligation under this Agreement without the prior written consent of all of the other Parties.
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Notices All notices, requests and other communications that are required or may be given under this Agreement must be in writing, and will be deemed to have been given on the date of delivery, if delivered by hand, electronic mail, fax or courier, or three days after mailing, if mailed by certified or registered mail, postage prepaid, return receipt requested, addressed as set forth below (which addresses may be changed, from time to time by notice given in the manner provided in this Section): If to GM: General Motors Corporation 30009 Van Dyke Road P.O. Box 9025 Mail Code 480-206-116 Warren, Michigan 48090-9025 Attention: Mark W. Fischer Facsimile: (586) 575-1519 Honigman Miller Schwartz and Cohn LLP 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226 Attention: Robert B. Weiss, Esq. Facsimile: (313) 465-7597 Honda of America Mfg., Inc. North American Purchasing Office 21001 - A State Route 739 Raymond, Ohio 43067 Attention: Bryan Clay Facsimile: (937) 645-7401 Vorys, Sater, Seymour and Pease LLP 52 East Gay Street P. O. Box 1008 Columbus, Ohio 43216-1008 Attention: Robert J. Sidman, Esq. Facsimile: (614) 719-4962 DaimlerChrysler Corporation CIMS 483-03-12 800 Chrysler Drive Auburn Hills, Michigan 48326-2757 Attention: Kenneth P. Munn, Esq. Facsimile: (248) 576-8394 DaimlerChrysler Corporation CIMS 485-13-32 1000 Chrysler Drive Auburn Hills, Michigan 48326-2766 Attention: Kim R. Kolb, Esq.
With a copy to:
If to Honda:
With a copy to:
If to DC:
With a copy to:
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Facsimile: (248) 512-4885 and: Dickinson Wright PLLC 500 Woodward Avenue Suite 4000 Detroit, Michigan 48226 Attention: James A. Plemmons, Esq. Facsimile: (313) 223-3598 Ford Motor Company One America Road World Headquarters Suite 323 Dearborn, Michigan 48126 Attention: Daniella Saltz, Esq. Facsimile: (313) 337-3209 Miller Canfield Paddock and Stone, PLC 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 Attention: Jonathan S. Green, Esq. Facsimile: (313) 496-8452 Collins & Aikman 26553 Evergreen Road, Suite 900 Southfield, Michigan 48076 Attention: General Counsel Facsimile: (248) 824-1882 Carson Fischer, PLC 4111 Andover Road West Second Floor Bloomfield Hills, Michigan 483021924 Attention: Joseph M. Fischer, Esq. Facsimile: (248) 644-1832 Kirkland & Ellis LLP 200 East Randolph Drive Chicago, Illinois 60601 Attention: Ray C. Schrock, Esq. Facsimile: (312) 861-2200 JPMorgan Chase Bank, N.A. 270 Park Avenue New York, New York 10017 Attention: Ann Kurinskas Facsimile: (212) 270-0453 Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019-6150 Attention: Harold S. Novikoff, Esq.
If to Ford:
With a copy to:
If to Supplier:
With a copy to:
and:
If to Lenders:
with a copy to:
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Facsimile: (212) 403-2249 and Dykema Gossett, PLLC 39577 Woodward Avenue Bloomfield Hills, Michigan 48304 Attention: Ronald L. Rose, Esq. Facsimile: (248) 203-0763
No Intended Third Party Beneficiary The parties to this Agreement acknowledge and agree that the rights and interests of the parties under this Agreement are intended to benefit solely the parties to this Agreement, except to the extent otherwise expressly set forth in this Agreement. Counterparts This Agreement may be executed in any number of counterparts and by each party on separate counterparts, each of which when executed and delivered will be an original, but all of which together will constitute one and the same instrument, and it will not be necessary in making proof of this Agreement to produce or account for more than one counterpart, provided that the counterpart is signed by the party against which enforcement of this Agreement is sought. For purposes of this Agreement, fax signatures constitute originals. Entire Agreement; Conflicts; Ambiguous Language This Agreement, together with any other agreements and attachments referenced in or executed in connection with this Agreement, constitutes the entire understanding of the parties in connection with its subject matter. Except as expressly set forth in this Agreement, neither the Supplier nor the Customers are waiving, modifying or limiting any rights they have under the purchase orders, which terms and conditions otherwise remain in full force and effect except as expressly modified by this Agreement. To the extent any term or condition of this Agreement is inconsistent or in conflict with the terms of any other agreements between the Supplier and the Customers, the terms of this Agreement will govern and control. This Agreement is being entered into among competent parties who are experienced in business and represented by counsel and has been reviewed by the parties and their respective counsel. Therefore, any ambiguous language in this Agreement will not necessarily be construed against any particular party as the drafter of that language. Governing Law and Forum This Agreement is made in the State of Michigan and will be governed by, and construed and enforced in accordance with, the laws of the State of Michigan, without regard to conflicts of law
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principles. The parties agree that the Bankruptcy Court has proper jurisdiction over the parties to this Agreement. If at anytime the Bankruptcy Court no longer has jurisdiction, the parties agree that the federal and state courts sitting in Wayne County, Michigan, have personal jurisdiction over the parties and that proper jurisdiction and venue for any dispute arising from or under this Agreement shall be in the federal or state courts sitting in Wayne County, Michigan. Consultation with Counsel The parties acknowledge that they have been given the opportunity to consult with counsel before executing this Agreement and are executing this Agreement without reliance on any representations, warranties or commitments other than those representations, warranties and commitments set forth in this Agreement. Waiver of Jury Trial The parties acknowledge that the right to trial by jury is a constitutional right, but that this right may be waived. Each party knowingly, voluntarily and without coercion, waives all rights to a trial by jury of any disputes arising out of or in relation to this Agreement. No party will be deemed to have relinquished the benefit of this waiver of jury trial unless the relinquishment is in a written instrument signed by the party against which relinquishment will be charged.
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GENERAL MOTORS CORPORATION for itself and on behalf of GM de Mexico S. de R.L. de C.V. and GM of Canada Limited By: Its:
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DAIMLERCHRYSLER CORPORATION for itself, DaimlerChrysler Canada, Inc. and DaimlerChrysler Motor Company, LLC By: Its:
K&E 11520353.8
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FORD MOTOR COMPANY By: Its:
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AUTOALLIANCE INTERNATIONAL, INC. By: Its:
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COLLINS & AIKMAN CORPORATION for itself and including its affiliated chapter 11 debtors and other relevant non-debtor subsidiaries and affiliates, but, for the avoidance of doubt, expressly excluding Collins & Aikman Automotive Hermosillo, S.A. de C.V. By: Its:
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HONDA OF AMERICA MFG., INC. for itself, Honda Manufacturing of Alabama, LLC and Honda of Canada Mfg., Inc., a division of Honda Canada, Inc. By: Its:
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JPMORGAN CHASE BANK, N.A. as Administrative Agent under the Pre-Petition Credit Agreement By: Its: JPMORGAN CHASE BANK, N.A. as Administrative Agent under the DIP Credit Agreement By: Its:
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IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION,

implementation of this Order.

Dated: December 12, 2006

Served via Electronic Mail

Served via Electronic Mail

Kim R Kolb Esq

Julie Teicher & Dianna Ruhlandt Judy A Oneill Esq

Paul V Possinger & Peter A Siddiqui

Served via Electronic Mail

CREDITOR NOTICE NAME

James S Carr Denver Edwards

Lewis Rosenbloom John R Grant Paul A Lucey

Served via Electronic Mail

Michael F McGrath Esq A Professional Law Corporation Dan E Bylenga Jr

Served via Electronic Mail

CREDITOR NOTICE NAME

Paul Patterson Esq Jim Cambio Gary S Bush Joseph T. Deters

Served via Facsimile

Served via Facsimile

Served via Overnight Mail

Served via Overnight Mail

Michael L Cioffi of the City of Montgomery

SBSE Insolvency Unit Tim Gorman Laura Kelly Ann Kurinskas

Served via Overnight Mail

320 Robert S Kerr Rm 307

Canada Canada Canada Canada Canada

425 5th Ave N

Farmville Downtown Partnership

Served via Overnight Mail

CREDITOR NOTICE NAME General Counsel Fsia Inc

CITY Troy Erlanger Troy Detroit Greensboro Holland

4. Plastics & Convertibles Production Payments and Obligations

16. Transition Planning

17. Purchase Options

18. Intellectual Property

19. Tooling Acknowledgment

20. Access Agreement

21. Non-Participating Customers

22. Supplier Tooling, Launch Cost and Capital Expenditure Obligations

23. Inventory Banks

25. General Provisions

With a copy to:

With a copy to:

With a copy to:

With a copy to:

With a copy to:

with a copy to:

FORD MOTOR COMPANY By: Its:

AUTOALLIANCE INTERNATIONAL, INC. By: Its:

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