IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
EXECUTION COPY
IN THE UNITED STATES BANKRUPTCY
COURT
FOR THE DISTRICT OF
DELAWARE
|
)
|
||
|
In re:
|
)
|
Chapter
11
|
|
)
|
||
|
VISTEON CORPORATION, et al.,1
|
)
|
Case No. 09-11786
(CSS)
|
|
)
|
||
|
Debtors.
|
)
|
Jointly
Administered
|
|
)
|
|
THIS PLAN SUPPORT AGREEMENT IS NOT AN
OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF VOTES WITH
RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION. ANY SUCH OFFER OR
SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR
PROVISIONS OF THE BANKRUPTCY
CODE. ACCEPTANCES OR REJECTIONS WITH RESPECT TO A CHAPTER 11
PLAN OF REORGANIZATION MAY NOT BE SOLICITED UNTIL A DISCLOSURE STATEMENT
HAS BEEN APPROVED BY THE BANKRUPTCY
COURT.
|
This PLAN SUPPORT AGREEMENT (the
“Agreement”) is made and entered into as of May 6, 2010, by and
among:
|
|
(a)
|
Visteon Corporation and all of its
direct and indirect affiliates, that are or may become a debtor and debtor
in possession (collectively, the “Debtors”) in the above-captioned chapter
11 cases (the “Chapter
11 Cases”);
|
|
|
(b)
|
the undersigned holders (each, a
“Consenting
7.00% Senior Note Holder” and collectively, the
“Consenting
7.00% Senior Note Holders”) of certain claims derived from
or based upon the 7.00% senior notes due March 10, 2014, issued
by
|
______________________
1 The Debtors in these chapter 11 cases,
along with the last four digits of each Debtor’s federal tax identification number,
are: Visteon Corporation (9512); ARS, Inc. (3590); Fairlane Holdings, Inc.
(8091); GCM/Visteon Automotive Leasing Systems, LLC (4060); GCM/Visteon Automotive
Systems, LLC (7103); Infinitive Speech Systems Corp. (7099); MIG-Visteon
Automotive Systems, LLC (5828); SunGlas, LLC (0711); The Visteon Fund (6029);
Tyler Road Investments, LLC (9284); VC Aviation Services, LLC (2712); VC Regional Assembly &
Manufacturing, LLC (3058); Visteon AC Holdings Corp. (9371); Visteon Asia
Holdings, Inc. (0050); Visteon Automotive Holdings, LLC (8898); Visteon
Caribbean, Inc. (7397); Visteon Climate Control Systems Limited (1946); Visteon
Domestic Holdings, LLC (5664); Visteon
Electronics Corporation (9060); Visteon European Holdings Corporation (5152);
Visteon Financial Corporation (9834); Visteon Global Technologies, Inc. (9322);
Visteon Global Treasury, Inc. (5591); Visteon Holdings, LLC (8897); Visteon International Business
Development, Inc. (1875); Visteon International Holdings, Inc. (4928); Visteon
LA Holdings Corp. (9369); Visteon Remanufacturing Incorporated (3237); Visteon
Systems, LLC (1903); Visteon Technologies, LLC (5291). The location of the Debtors’ corporate headquarters and the service
address for all the Debtors is: Xxx Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx Xxxxxxxx,
Xxxxxxxx 00000.
|
|
Visteon Corporation in the
original amount of $450,000,000 under that certain supplemental
indenture dated as of
March 10, 2004, by and between Visteon Corporation and X.X. Xxxxxx Trust
Company, N.A., as trustee (the “7.00%
Senior Notes”);
|
|
|
(c)
|
the undersigned holders (each, a
“Consenting
8.25% Senior Note Holder” and collectively, the
“Consenting
8.25% Senior Note Holders”) of certain claims derived from
or based upon the 8.25% senior notes due August 1, 2010, issued by Visteon
Corporation in the original amount of $700,000,000 under that certain
indenture dated as of June 23, 2000, by and between Visteon Corporation and Bank One
Trust Company, N.A., as trustee (the “8.25%
Senior Notes”), who, together with the
Consenting 7.00% Senior Note Holders, hold at least two-thirds in amount
of the aggregate principal amount of the 7.00% Senior Notes and
8.25% Senior Notes;
and
|
|
|
(d)
|
the undersigned holders (each, a
“Consenting
12.25% Senior Note Holder” and collectively, the
“Consenting
12.25% Senior Note Holders” and together with the Consenting
7.00% Senior Note Holders and the Consenting 8.25% Senior Note Holders, the “Consenting
Senior Note Holders”) of at least two-thirds in amount
of certain claims derived from or based upon the 12.25% senior notes due
December 31, 2016, issued by Visteon Corporation in the original amount of
$206,386,000 under that certain second supplemental
indenture dated as of June 18, 2008, by and among Visteon Corporation, the
guarantors party thereto, and The Bank of New York Trust Company, N.A., as
trustee (the “12.25%
Senior Notes” and together with the 7.00%
Senior Notes and the
8.25% Senior Notes, the “Visteon
Notes”
).
|
The Consenting Senior Note
Holders, together with the Debtors, are defined collectively as the “Parties.”
RECITALS
WHEREAS, on May 28, 2009, each of the
above-captioned Debtors filed a voluntary petition for relief under chapter 11 of the
Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy
Code”) with the United States Bankruptcy
Court for the District of Delaware (the “Bankruptcy
Court”).
WHEREAS, each Consenting Senior Note Holder is
a Holder of a Claim, as
defined in section 101(5) of the Bankruptcy Code derived from or based upon the
7.00% Senior Notes (each, a “7.00% Senior
Notes Claim”), the 8.25% Senior Notes (each, a
“8.25% Senior
Notes Claim”), and/or the 12.25% Senior Notes (each,
a “12.25%
Senior Notes
Claim” and together with the 7.00% Senior
Notes Claims, the 8.25% Senior Notes Claims, Claims held by the Consenting
Senior Note Holders arising under that certain Amended and Restated Credit
Agreement dated as of April 10, 2007, as amended, supplemented, or modified from time to
time, by and between, Visteon Corporation, as borrower, JPMorgan Chase Bank,
N.A., as administrative agent, Wilmington Trust FSB, as successor administrative
agent and the various
2
banks, financial institutions, and
other entities party
thereto, as lenders, and General Unsecured Claims held by the Consenting Senior
Note Holders, the “Visteon
Claims”);
WHEREAS, on December 17, 2009, the Debtors
filed the Joint Plan of
Reorganization of Visteon Corporation and Its Debtor Affiliates
Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket No. 1475] and the Disclosure Statement
for the Debtors’ Joint Plan of
Reorganization Pursuant to Chapter 11 of the United States Bankruptcy
Code [Docket No.
1476];
WHEREAS, on March 15, 2010, the Debtors filed the
First
Amended Joint Plan of Reorganization of Visteon Corporation and Its Debtor
Affiliates Pursuant to Chapter 11 of the United States Bankruptcy
Code [Docket No. 2544] and
the First Amended
Disclosure Statement for the First Amended
Joint Plan of Reorganization Pursuant to Chapter 11 of the United States
Bankruptcy Code [Docket No.
2545];
WHEREAS, the Debtors have engaged in good faith
negotiations with the Consenting Senior Note Holders, including the
Consenting Senior Note
Holders holding a majority in principal amount, respectively, of the 7.00%
Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior Notes Claims
held by the Consenting Senior Note Holders, regarding the terms of a further
amended joint plan of reorganization pursuant to
chapter 11 of the United States Bankruptcy Code in the form annexed hereto as
Exhibit
A (and as may be amended as
permitted by Section
2.5(d) of this Agreement,
the “Amended
Plan”);2
WHEREAS, in connection with the rights offering contemplated by the
Rights Offering Sub Plan, the Debtors are seeking Bankruptcy Court approval of
that certain Equity Commitment Agreement, by and among the Debtors and the
Investors (as defined in the Equity Commitment Agreement, the “Investors”), dated as of May 6, 2010 (the
“Equity
Commitment Agreement”);
WHEREAS, each Consenting Senior Note Holder has
reviewed or has had the opportunity to review the Amended
Plan;
WHEREAS, the Debtors and the
Consenting Holders have agreed to facilitate confirmation and consummation of
the Amended Plan and any and all related transactions in the manner set forth
herein and in the Amended Plan (collectively, the “Restructuring”);
WHEREAS, to ensure an orderly confirmation
process, (a) the Debtors are prepared to perform their obligations
hereunder subject to the terms and conditions of this Agreement, including,
among other things to seek the Bankruptcy Court’s approval of the Disclosure Statement
(substantially in the form attached hereto as Exhibit
B, with any such
amendments, supplements, changes and modifications thereto that may be made
subject to the provisions hereof, which Disclosure Statement shall be in such
form and substance as is reasonably satisfactory to Requisite Investors (as
defined in the Equity
Commitment Agreement, the “Requisite
Investors”) and with any changes or modifications
required by the Bankruptcy Court, the “Disclosure
Statement”) prior to soliciting votes on the
Amended Plan in accordance with section 1125 of the Bankruptcy Code and (b) the Consenting Senior
Note Holders are prepared
________________________
|
|
2
|
Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Amended
Plan.
|
3
to perform their obligations hereunder
subject to the terms and
conditions of this Agreement, including, without limitation, working with the
Debtors to obtain Bankruptcy Court approval of this Agreement and the Amended
Plan; and
WHEREAS, in expressing their support for the
Agreement and the Amended Plan (pursuant to the terms and conditions of
this Agreement), the Parties do not desire and do not intend in any way to
derogate or diminish the solicitation requirements of applicable securities and
bankruptcy law, or the fiduciary duties of the Debtors.
NOW, THEREFORE, subject to the provisions of
Section
8.7 of this Agreement, in
consideration of the foregoing and the premises, mutual covenants, and
agreements set forth herein and for other good and valuable consideration, the
Parties agree as follows:
|
Section 1.
|
The
Amended Plan.
|
The Amended Plan is incorporated by
reference herein and made part of this Agreement and each Consenting Senior Note
Holder has reviewed or has had the opportunity to review the Amended
Plan.
|
Section 2.
|
Commitments
of the Parties
Under this Agreement.
|
|
2.1
|
Consenting Senior Note
Holders’ and Debtors’ Support of Amended
Plan.
|
|
|
(a)
|
As long as this Agreement shall
not have been terminated in accordance with Section
7 or Section
2.5 hereof, each
Consenting Senior Note Holder agrees that, unless it shall have
terminated its obligations hereunder pursuant to Section
7.1(d) hereof, by
having executed and become party to this Agreement, it
shall:
|
|
|
(1)
|
support entry of the Disclosure
Statement Order (as defined
below);
|
|
|
(2)
|
agree to permit disclosure in any disclosure
statement and any filings by the Debtors with the Securities and Exchange
Commission of the contents of this Agreement, including the aggregate
7.00% Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior
Notes Claims held by all Consenting
Senior Note Holders; provided, however, that the amount of such claims
held by any individual Consenting Senior Note Holder shall be disclosed
only to the Debtors and shall not be disclosed by the Debtors to any other
Entity, unless
required by applicable law, regulation, or legal process;
and
|
|
|
(3)
|
vote all Relevant Claims (as
defined below) it holds to accept the Amended Plan when solicited pursuant
to the Disclosure Statement Order by the Debtors, provided, however, that (a) the Disclosure Statement shall be
substantially in the form attached hereto as Exhibit
B, with any such
amendments, supplements, changes and modifications thereto, which
Disclosure Statement shall be in such form and substance as is reasonably
satisfactory to
Requisite Investors and with any changes or modifications required by the
Bankruptcy Court; (b) the Amended Plan is in the
form
|
4
attached hereto as Exhibit
A except as may be amended
pursuant to Section
2.5(d) of this Agreement;
and (c) the Bankruptcy
Court has entered the Disclosure Statement Order.
|
|
(b)
|
Unless the Debtors and the
Consenting Senior Note Holders have agreed, in writing, to pursue an
Alternative Plan (as defined below) and as long as this Agreement shall
not have been terminated in accordance with Section
7 or Section
2.5 hereof, the
Debtors (subject in all respects to their fiduciary duties) and each
Consenting Senior Note Holder (so long as such Consenting Senior Note
Holder shall not have terminated its obligations hereunder
pursuant to
Section
7.1(d) hereof)
further agree that they shall not (as
applicable):
|
|
|
(1)
|
directly or indirectly seek,
solicit, support, or vote in favor of any other plan, sale, proposal, or
offer of dissolution, winding up, liquidation, reorganization,
merger, or
restructuring of the Debtors that could reasonably be expected to prevent,
delay, or impede the restructuring of the Debtors as contemplated by the
Amended Plan or that is inconsistent with this Agreement (collectively, an
“Alternative
Plan”);
|
|
|
(2)
|
directly or indirectly (a) engage
in, continue, or otherwise participate in any negotiations regarding any
Alternative Plan, (b) enter into a letter of intent, memorandum of
understanding, agreement in principle, or other agreement relating to any
Alternative Plan or (c) withhold, withdraw,
qualify, or modify their approval or recommendation of this Agreement, the
Amended Plan, or the
Restructuring;
|
|
|
(3)
|
object to or otherwise commence
any proceeding opposing any of the terms of the Amended Plan or the
Disclosure Statement,
including, without limitation, the findings of the Valuation Analysis (as
defined in the Disclosure Statement), provided that nothing contained herein
shall limit the ability of any Consenting Senior Note Holder to consult
with the Debtors, to
appear and be heard, or to file objections, concerning any matter arising
in the Chapter 11 Cases, so long as such consultation, appearance or
objection is not inconsistent with (i) such Consenting Senior Note
Holder’s obligations under this
Agreement or (ii) the terms of the Amended
Plan and the other transactions contemplated by and in accordance with
this Agreement and the Amended
Plan;
|
|
|
(4)
|
commence any proceeding or
prosecute, join in, or otherwise support any action to oppose or object to
entry of the
Disclosure Statement Order;
|
|
|
(5)
|
encourage any other Entity to
object to, delay, impede, appeal, or take any other action, directly or
indirectly, to interfere with entry of the Disclosure Statement Order or,
after approval thereof, an order of the Bankruptcy Court confirming the
Amended Plan;
|
5
|
|
(6)
|
commence any proceeding or
prosecute, join in, or otherwise support any action to oppose or object to
approval of the Amended Plan;
or
|
|
|
(7)
|
take any action that is
inconsistent with this Agreement or the Amended Plan, or that would
unreasonably delay approval of the Disclosure Statement or confirmation of
the Amended Plan.
|
For the avoidance of doubt, the Claims
Conversion Sub Plan shall not be an Alternative Plan if implemented or
consummated pursuant to and
substantially in accordance with the Amended Plan and not in violation of the
Equity Commitment Agreement. Further, the obligations of any Consenting Senior
Note Holder under this Section
2.1 shall apply to all
Relevant Claims and Relevant Interests (each, as defined below) that such
Consenting Senior Note Holder has in the Chapter 11 Cases; provided that the obligations under Section
2.1(a)(3) and Section
2.1(b)(1), to the extent it
relates to voting, shall apply only to Relevant Claims (as defined below) and not to the Equity Securities
of Visteon Corporation (the “Equity
Interests”), including the Relevant Interests (as
defined below), held by such Consenting Senior Note Holder. “Relevant
Claims” means the Visteon Claims held by a
Consenting Senior Note
Holder that it is legally authorized to make subject to the terms of this
Agreement, with the exception of any such Visteon Claims that such Consenting
Senior Note Holder has sold, transferred, or assigned prior to its execution of
this Agreement, whether or not any such sale, transfer,
or assignment has settled as of the date hereof (provided that such sale,
transfer, or assignment is actually consummated). “Relevant
Interests” means the Equity Interests held by a
Consenting Senior Note Holder that it is legally authorized to make subject
to the terms of this Agreement, with the exception of any such Equity Interests
that such Consenting Senior Note Holder has sold, transferred, or assigned prior
to its execution of this Agreement, whether or not any such sale, transfer, or assignment has
settled as of the date hereof (provided that such sale, transfer, or assignment
is actually consummated).
|
2.2
|
Transfer of Claims, Interests, and
Securities.
|
Each Consenting Senior Note Holder
hereby agrees, for so long
as this Agreement shall remain in effect with regard to such Consenting Senior
Note Holder, not to sell, assign, transfer, pledge, hypothecate or otherwise
dispose of, directly or indirectly (each such action, a “Transfer”), any of its Relevant Claims or any right related thereto and
including any voting rights associated with such Relevant Claims, unless the
transferee thereof delivers an agreement in writing, in substantially the form
of the transfer agreement attached hereto as Exhibit
C (the “Transfer
Agreement”), to the Debtors no later than three
(3) Business Days after the relevant Transfer (each such transferee becoming a
Consenting Senior Note Holder upon the Transfer hereunder); provided, however, that any Transfer of Relevant Claims
to a Consenting Senior Note
Holder shall not require the execution of a Transfer Agreement but shall be
subject to the provisions of Section
2.3
hereof.
The Debtors shall promptly acknowledge
any such Transfer Agreement in writing and provide a copy of that
acknowledgement to the
transferor; provided, however, that any failure by the Debtors to
acknowledge such Transfer Agreement shall not affect the validity or
enforceability thereof. By their acknowledgement of the relevant
Transfer Agreement, the Debtors shall be deemed to have acknowledged that
their obligations to the Consenting Senior
6
Note Holders hereunder shall be deemed
to constitute obligations in favor of the relevant transferee as a Consenting
Senior Note Holder hereunder. Any sale, transfer, or assignment of any Relevant Claims that does
not comply with the procedures set forth in this Section
2.2 shall be deemed void
ab
initio. Notwithstanding the
foregoing, execution of a Transfer Agreement shall not be required for
transferees that are broker-dealers or trading desks in their capacity
or to the extent of their holdings as a broker-dealer or market maker of Claims
or Equity Interests (a “Market
Maker”) engaged in market making or riskless
back-to-back trades (collectively, “Market
Making Activities”); provided that execution of a Transfer Agreement
under this Section
2.2 shall be required for
the actual purchasers of Claims in such market transactions. For the avoidance
of doubt, no Transfer Agreement shall be required in connection with a Transfer
by any Consenting Senior
Note Holder of any Equity Interests.
2.3 Further Acquisition of Visteon Claims
and Interests.
This Agreement shall in no way be
construed to preclude any Consenting Senior Note Holder or any of its affiliates
(as defined in section
101(2) of the Bankruptcy Code) from acquiring additional Relevant Claims or
Relevant Interests following its execution of this Agreement; provided, however, that any such additional Relevant
Claims or Relevant Interests acquired by a Consenting Senior Note Holder shall automatically be
deemed to be subject to the terms of this Agreement. Upon the written request of
the Debtors, each Consenting Senior Note Holder shall, in writing and within
five (5) Business Days, provide an accurate and current list of all Relevant Claims and/or Relevant
Interests that it holds at that time, subject to any applicable confidentiality
restrictions and applicable law, including the confidentiality restrictions set
forth in Section
2.1(a)(2)
hereof.
Each Consenting Senior Note Holder further agrees that it will
not knowingly permit or cause any subsidiary or affiliate that it is legally
authorized to control, now existing or hereafter created, to acquire any Claims
against or Equity Interests in any of the Debtors without causing such affiliate to become a Party
hereto prior to such acquisition; provided, however, that notwithstanding anything to the
contrary contained in this Agreement, the foregoing restrictions on a Consenting
Senior Note Holder knowingly permitting or causing any subsidiary or affiliate to
acquire any Claims against or Equity Interests in any of the Debtors without
becoming a Party hereto set forth in this paragraph shall not apply to the
following Consenting Senior Note Holders: (a) the High Yield Distressed Investing Group of Xxxxxxx, Xxxxx
& Co. (the "High Yield
Group"), except with
respect to the Transfer of Relevant Claims and Relevant Interests held by the
High Yield Group to any subsidiary or affiliate of the High Yield Group, which
Relevant Claims and
Relevant Interests shall, for the avoidance of doubt, remain Relevant Claims and
Relevant Interests following any such Transfer, and (b) the Distressed Products
Group of Deutsche Bank Securities Inc. (the “Distressed
Products Group”) except with respect to the Transfer of Relevant Claims
and Relevant Interests held by the Distressed Products Group to any subsidiary
or affiliate of the Distressed Products Group, which Relevant Claims and
Relevant Interests shall, for the avoidance of doubt, remain Relevant Claims and Relevant Interests
following any such Transfer.
Sections
2.2 and 2.3 of this Agreement shall not apply to
Claims or Equity Interests traded by any subsidiary or affiliate or any trading
desk of a Consenting Senior Note Holder in
7
its capacity or to the extent of its holdings
as a Market Maker engaged in Market Making Activities.
|
2.4
|
Implementation of the Amended
Plan.
|
Subject to their fiduciary duties and
without limiting the rights of the Requisite Investors under the Equity
Commitment Agreement, the
Debtors shall use their commercially reasonable efforts to:
|
|
(a)
|
file a motion with the Bankruptcy
Court authorizing the Debtors to execute and perform under this Agreement
within seven (7) days of the date hereof and use their
commercially
reasonable efforts to obtain an order from the Bankruptcy Court approving
such motion (the “Plan
Support Agreement Approval Order”);
|
|
|
(b)
|
effectuate and consummate the
Restructuring on the terms contemplated by the Amended
Plan;
|
|
|
(c)
|
file the Disclosure Statement with the Bankruptcy
Court, along with a motion, to the extent necessary, seeking approval of
such Disclosure Statement;
|
|
|
(d)
|
obtain entry by the Bankruptcy
Court of an order approving the Disclosure Statement in form and substance
reasonably acceptable
to the Requisite Investors and finding that the Disclosure Statement
satisfies the requirements of Section 1125 of the Bankruptcy Code (such an
order, the “Disclosure
Statement Order”);
|
|
|
(e)
|
solicit the requisite acceptances
of the Amended Plan
in accordance with section 1125 of the Bankruptcy Code after the
Bankruptcy Court has approved the Disclosure
Statement;
|
|
|
(f)
|
after entry of the Disclosure
Statement Order, move to confirm the Amended Plan as expeditiously as
practicable under the Bankruptcy Code and the Federal Rules
of Bankruptcy Procedure as applicable to the Chapter 11 Cases, promulgated
under 28 U.S.C. §
2075 and the general, local, and xxxxxxxx rules of the Bankruptcy Court
(collectively, the “Bankruptcy
Rules”);
|
|
|
(g)
|
implement all steps necessary and desirable to
obtain the Confirmation Order, which Confirmation Order shall be
consistent in all material respects with the Amended Plan and shall be in
form and substance reasonably acceptable to the Requisite
Investors;
|
|
|
(h)
|
take no actions inconsistent with this
Agreement, the Amended Plan, or the expeditious confirmation and
consummation of the Amended Plan;
and
|
|
|
(i)
|
seek to consummate the Amended
Plan upon satisfaction of all conditions to consummation
thereof.
|
8
|
2.5
|
The Debtors’ Fiduciary
Obligations.
|
Notwithstanding anything to the contrary
contained in this Agreement, subject to the Debtors’ obligations under the Equity Commitment
Agreement, the Debtors’ obligations hereunder are subject at
all times to the fulfillment of their respective fiduciary duties. The
Debtors may terminate their obligations under this Agreement by written notice
to counsel for the Consenting Senior Note Holders if the Debtors reasonably
determine that (a) the Amended Plan is not in the best interests of the Debtors’ estates and continued support of the
Amended Plan pursuant to this Agreement would be inconsistent with the
Debtors’ fiduciary obligations, or (b) the
Debtors receive a proposal for an Alternative Plan and the Debtors reasonably
determine that continued support of the Amended Plan
pursuant to this Agreement would be inconsistent with the Debtors’ fiduciary obligations. Upon a
termination of this Agreement pursuant to this Section
2.5, all obligations of the
Consenting Senior Note Holders hereunder shall immediately terminate
without further action or notice by the Consenting Senior Note
Holders.
|
Section 3.
|
Representations
and Warranties of Consenting Senior Note
Holders.
|
Each of the Consenting Senior Note
Holders hereby represents and warrants that, as of the date
hereof:
|
|
(a)
|
it is the legal owner, beneficial
holder, and/or the investment advisor or manager for the beneficial holder
of such legal or beneficial holder’s Relevant Claims and Relevant
Interests subject to this Agreement and set forth on its respective signature
page to this Agreement with authority to bind such beneficial holder to
the extent that such Consenting Senior Note Holder is not the beneficial
holder (respectively, the “Initial
Relevant Claims” and “Initial
Relevant Interests”), provided that such information
shall be held subject to the proviso in Section
2.1(a)(2)
hereof;
|
|
|
(b)
|
there are no Relevant Claims or
Relevant Interests of which it is the holder of record that are not part
of its Initial Relevant Claims and Initial Relevant Interests unless
such Consenting Senior Note Holder does not possess the full power to vote
and dispose of such Claims;
and
|
|
|
(c)
|
it has full power to vote (with
the exception of such Consenting Senior Note Holder’s Initial Relevant
Interests), dispose
of, and compromise the aggregate principal amount of the Initial Relevant
Claims and Initial Relevant
Interests.
|
|
Section 4.
|
Mutual
Representations, Warranties, and
Covenants.
|
Each Party makes the following
representations, warranties, and covenants, severally and not jointly as to
itself, to each of the other Parties, each of which are continuing
representations, warranties, and covenants:
|
4.1
|
Good
Faith.
|
The Parties agree to negotiate in good
faith all of the documents and transactions described in the Amended Plan and in this
Agreement.
9
4.2 Enforceability.
Subject to Section
8.7 of this Agreement and
the provisions of sections 1125 and 1126 of the Bankruptcy Code, this Agreement
is a legal, valid, and binding obligation, enforceable against the Debtors and each Consenting
Senior Note Holder in accordance with its terms, except as enforcement may be
limited by applicable laws relating to or limiting creditors’ rights generally or by equitable
principles relating to enforceability. Notwithstanding anything contained herein
to the contrary, the obligations of each Consenting Senior Note Holder hereunder
shall be several and not joint.
|
4.3
|
No Consent or
Approval.
|
Except as expressly provided in this
Agreement, no consent or approval is required by any other Entity in order
for it to carry out the provisions of this Agreement.
|
4.4
|
Power and
Authority.
|
It is duly organized, validly existing,
and in good standing under the laws of its jurisdiction of organization and it
has all requisite
corporate, partnership, or limited liability company power and authority to
enter into this Agreement and to carry out the transactions contemplated by, and
perform its respective obligations under, this Agreement and the Amended
Plan.
|
4.5
|
Authorization.
|
The execution and delivery of this
Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate, partnership, or limited liability company
action.
|
4.6
|
Governmental
Consents.
|
Subject to the provisions of Section
8.7 of this Agreement, the
execution, delivery, and performance by the Parties of this Agreement does not
and shall not require any registration or filing with or consent or approval of,
or notice to, or other action to, with or by, any federal, state, or other governmental
authority or regulatory body, except such filings as may be necessary and/or
required under the federal securities laws or as necessary for the approval of
the Disclosure Statement and confirmation of the Amended Plan by the Bankruptcy
Court.
|
4.7
|
No
Conflicts.
|
The execution, delivery, and performance
of this Agreement does not and shall not: (a) violate any provision of law,
rule, or regulations applicable to it or, in the case of the Debtors, any of its
subsidiaries; (b) violate
its certificate of incorporation, bylaws (or other formation documents in the
case of a limited liability company) or, in the case of the Debtors, those of
any of its subsidiaries; or (c) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a
default under any material contractual obligation to which it or, in the case of
the Debtors, any of its subsidiaries is a party.
10
|
Section 5.
|
No
Waiver of Participation and Preservation of
Rights.
|
This Agreement and the Amended Plan are part of a
proposed settlement among the Parties with respect to the Relevant Claims and
Relevant Interests. Except as expressly provided in this Agreement, nothing
herein is intended to, does or shall be deemed in any manner to waive, limit, impair, or restrict the
ability of each of the Consenting Senior Note Holders to protect and preserve
its rights, remedies, and interests, including, but not limited to, its claims
against any of the Debtors, any liens or security interests it may have in any assets of any of the
Debtors, or its full participation in the Chapter 11 Cases so long as such
actions are not inconsistent with the Consenting Senior Note Holder’s obligations hereunder. Without
limiting the foregoing sentence in any way, if the transactions contemplated by this
Agreement or otherwise set forth in the Amended Plan are not consummated as
provided herein or therein, if this Agreement is terminated for any reason, the
Parties each fully reserve any and all of their respective rights, remedies and
interests.
|
Section 6.
|
Acknowledgement.
|
THIS AGREEMENT, THE AMENDED PLAN, AND
THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN, ARE THE PRODUCT OF
NEGOTIATIONS BETWEEN THE PARTIES AND THEIR RESPECTIVE
REPRESENTATIVES. EACH PARTY HEREBY ACKNOWLEDGES THAT THIS AGREEMENT IS
NOT AND SHALL NOT BE DEEMED TO BE A SOLICITATION OF VOTES FOR THE ACCEPTANCE OF
A CHAPTER 11 PLAN FOR THE PURPOSES OF SECTIONS 1125 AND 1126 OF THE BANKRUPTCY
CODE OR OTHERWISE. THE DEBTORS WILL NOT SOLICIT ACCEPTANCES OF THE AMENDED PLAN FROM ANY
CONSENTING SENIOR NOTE HOLDER (OR ANY OTHER PERSON OR ENTITY) UNTIL THE
CONSENTING SENIOR NOTE HOLDERS (OR ANY OTHER PERSON OR ENTITY) HAVE BEEN
PROVIDED WITH COPIES OF A DISCLOSURE STATEMENT APPROVED BY THE BANKRUPTCY
COURT. EACH PARTY FURTHER ACKNOWLEDGES THAT
NO SECURITIES OF ANY DEBTOR ARE BEING OFFERED OR SOLD HEREBY AND THAT THIS
AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OF ANY DEBTOR. NOTWITHSTANDING THE
FOREGOING PROVISIONS, NOTHING IN THIS
AGREEMENT SHALL REQUIRE ANY PARTY TO TAKE ANY ACTION PROHIBITED BY THE
BANKRUPTCY CODE, THE SECURITIES ACT OF 1933 (AS AMENDED), THE SECURITIES
EXCHANGE ACT OF 1934 (AS AMENDED), ANY RULE OR REGULATIONS PROMULGATED
THEREUNDER, OR BY ANY OTHER APPLICABLE LAW OR
REGULATION OR BY AN ORDER OR DIRECTION OF ANY COURT OR ANY STATE OR FEDERAL
GOVERNMENTAL AUTHORITY.
|
Section 7.
|
Termination.
|
|
7.1
|
Termination
Events.
|
This Agreement may be
terminated:
|
|
(a)
|
immediately upon the
written agreement of
the Debtors and the Requisite Senior Note Holders to terminate this
Agreement;
|
11
|
|
(b)
|
by any of the Debtors or the
Requisite Senior Note Holders upon three (3) Business Days’ written notice to each of the
other Parties; provided that such notice is delivered in accordance
with Section
8.11 hereof and
received not more than ten (10) Business Days following the occurrence of
any event described in clause (1) or (2) below,
if:
|
|
|
(1)
|
any of the Chapter 11 Cases are
dismissed or converted to a case under Chapter 7 of the
Bankruptcy Code; or
|
|
|
(2)
|
the Bankruptcy Court has entered
an order in any of the Chapter 11 Cases appointing an examiner with
expanded powers or a trustee under chapter 7 or chapter 11 of the
Bankruptcy Code; provided, however, that the appointment of an examiner
pursuant to the motion of that certain ad
hoc committee of
equityholders as filed with the Bankruptcy Court on April 2, 2010 shall
not give rise to a right to terminate this
Agreement;
|
|
|
(c)
|
by the Requisite Senior Note
Holders, upon three
(3) Business Days’ written notice to the Debtors (or
such lesser time if the voting deadline for the Amended Plan is to occur,
or if the Confirmation Hearing is to commence within such period),
provided that with respect to Sections
7.1(c)(1) and (2), the Requisite Senior Note
Holders shall not be permitted to terminate this Agreement if, prior to
the delivery of such notice, the Debtors shall have filed the relevant
document(s) set forth in Sections
7.1(c)(1) and/or
(2) below that, without the occurrence of such filing,
would have constituted a basis for terminating this Agreement,
if:
|
|
|
(1)
|
the Debtors fail to file a motion
seeking authority to perform under this Agreement within seven (7) days of
the date hereof;
|
|
|
(2)
|
the Debtors have not filed the Amended Plan and the
Disclosure Statement with the Bankruptcy Court on or before May 12, 2010
or such later date as may be agreed to by the Requisite Senior Note
Holders;
|
|
|
(3)
|
the Debtors have withdrawn the
Amended Plan or publicly announced their intention not to support
the Amended Plan or provided written notice to any Consenting Senior Note
Holders (or any of their respective representatives) of their intention to
do so; or
|
|
|
(4)
|
any court has entered a final,
non-appealable judgment or order declaring this Agreement or
any material portion hereof to be
unenforceable;
|
|
|
(d)
|
by each Consenting Senior Note
Holder, but solely with respect to such Consenting Senior Note Holder
(this Agreement remaining in full force and effect as among the
Debtors and the other
Consenting Senior Note Holders) upon three (3) Business Days’ written notice to the Debtors (or
such lesser time if the voting deadline for the Amended Plan is to occur,
or if the Confirmation Hearing is to commence within such period)
following a material adverse change
or modification to the treatment of the Claims of holders of Visteon Notes
under the
|
12
|
|
Amended Plan, in the form attached
hereto as of the date hereof, that has been effected without the prior
written consent of such Consenting Senior Note
Holder;
|
|
|
(e)
|
and shall be terminated
automatically if the Equity Commitment Agreement has been validly
terminated, subject to, and in accordance with, the Debtors’ rights hereunder to commence the
Expedited Proceedings (as defined below):
|
|
|
(1)
|
by Requisite Investors pursuant to
Section 10.1(c)(i) of the Equity Commitment
Agreement;
|
|
|
(2)
|
by Requisite Investors pursuant to
Section 10.1(c)(iv) of the Equity Commitment Agreement (excluding a
termination of the Equity Commitment Agreement by Requisite Investors pursuant
to Section 10.1(c)(iv) of the Equity Commitment Agreement in the event of
a breach by any Investor); provided, however, that this Agreement shall not be
terminated pursuant to this Section
7.1(e)(2) in the
event of any extension of the Outside Date (as
defined in the Equity Commitment Agreement) pursuant to clause (A) or (B)
of Section 10.1(b)(iii) of the Equity Commitment Agreement, if, following
the date that would otherwise have been the Outside Date (as defined in
the Equity Commitment Agreement) but for
such extension, the Equity Commitment Agreement is terminated by the
Requisite Investors pursuant to Section 10.1(c)(iv) of the Equity
Commitment Agreement as a result of any breach or breaches of the Equity
Commitment Agreement by the Debtors that would
cause a failure of any condition set forth in Section 8.1(l) of the Equity
Commitment Agreement;
|
|
|
(3)
|
by Requisite Investors pursuant to
Section 10.1(c)(vi) of the Equity Commitment
Agreement;
|
|
|
(4)
|
by the Debtors pursuant to Section 10.1(b)(ii) of the
Equity Commitment Agreement,
unless:
|
|
|
(A)
|
the Debtors shall have provided
the Lead Investors (as defined in the Equity Commitment Agreement) with
ten (10) Business Days’ prior notice of their intent to
terminate the Equity Commitment Agreement (which notice
the Debtors hereby agree to so
deliver);
|
|
|
(B)
|
the Requisite Investors have
failed to exercise their Plan Cure Rights (as defined below), or have
failed to obtain confirmation of the Rights Offering Sub Plan following
their exercise of
such Plan Cure Rights; and
|
|
|
(C)
|
following a failure of the
Requisite Investors to exercise the Plan Cure Rights or to obtain
confirmation of the Rights Offering Sub Plan following their exercise of
the Plan Cure Rights, the Claims Conversion Sub Plan shall be confirmable by
the Bankruptcy Court without amendment or with only such amendments as
would
|
13
not require re-solicitation of the
holders of Visteon Notes or, if also made to the Rights Offering Sub Plan, would
result in the confirmation
of the Rights Offering Sub Plan.
The Requisite Investors’ “Plan Cure
Rights” pursuant to this Section
7.1(e)(4) shall be as
follows: within the ten (10) Business Day period following the Lead
Investors’ (as defined in the Equity Commitment
Agreement) receipt of
notice of the Debtors’ intent to terminate the Equity
Commitment Agreement pursuant to Section 10.1(b)(ii) thereof, the Requisite
Investors shall deliver a written amendment or amendments which are acceptable
to the Debtors in their reasonable discretion to the Equity Commitment
Agreement or the Amended Plan, as the case may be (collectively, the
“Amendments”), that resolve all objections to the
Amended Plan sustained by the Bankruptcy Court (with the exception of those
described in Section
Error!
Reference
source not found. below) in
a manner that either:
|
|
(i)
|
does not require the Debtors to
re-solicit approval of the Amended Plan;
or
|
|
|
(ii)
|
if re-solicitation is ordered by
the Bankruptcy Court following the Parties’ request that no further
solicitation be
required, such re-solicitation requires the Debtors to re-solicit approval
of the Amended Plan only from Holders of 7.00% Senior Note Claims, 8.25%
Senior Note Claims, and 12.25% Senior Note Claims; provided that binding agreements to
support the Amended
Plan, as amended by the Amendments, are delivered to the Debtors by
Consenting Senior Note Holders holding at least two-thirds in aggregate
principal amount of the 7.00% Senior Notes and 8.25% Senior Notes and
two-thirds in aggregate principal amount of the 12.25% Senior Notes
within five
|
|
|
(5)
|
Business Days after delivery of
the Amendments; (5) by the Debtors, pursuant to Section 10.1(b)(iii) of
the Equity Commitment Agreement if the conditions in Sections 8.1(h), (i),
and (j) thereof have not been satisfied and the outstanding
items which are the cause of such conditions to not be satisfied
(i.e., any outstanding consents,
approvals, notifications, waiting period expirations, etc.) are also
necessary under applicable Law for the Debtors to consummate the Claims Conversion Sub
Plan;
|
|
|
(6)
|
by the Debtors pursuant to Section
10.1(d)(ii) of the Equity Commitment Agreement;
or
|
|
|
(7)
|
by Requisite Investors pursuant to
Section 10.1(c)(ix) of the Equity Commitment Agreement (any termination of
the Equity Commitment
|
14
|
|
Agreement described in this
Section
7.1(e), a
“Plan
Support Termination Event”);
or
|
|
|
(f)
|
by Requisite Investors, upon three
(3) Business Days’ written notice to the Debtors if
(i) the Bankruptcy Court shall determine not to approve the
Rights Offering Sub
Plan solely on account of issues arising from a Management Agreement (as
defined in the Equity Commitment Agreement) or Exhibits G or L to the
Equity Commitment Agreement and (ii) the Debtors have not filed or
delivered, as applicable, such amendments that are reasonably
acceptable to the Requisite Investors to any Management Agreement (as
defined in the Equity Commitment Agreement) or Exhibits G or L to the
Equity Commitment Agreement and/or Amended Plan as may be necessary to
resolve all objections with respect to issues
arising from a Management Agreement (as defined in the Equity Commitment
Agreement) or Exhibits G or L to the Equity Commitment Agreement sustained
by the Bankruptcy Court within sixty (60) days following the Bankruptcy
Court’s determination not to approve the
Rights Offering Sub Plan.
|
The provisions of this Section
7.1 are intended solely for
the benefit of the Debtors and the Consenting Senior Note Holders; provided, however, that a Consenting Senior Note Holder
or a Debtor may not seek to
terminate this Agreement based upon a material breach or a failure of a
condition (if any) in this Agreement arising out of its own actions or
omissions. The Parties hereby waive any requirement under section 362 of the
Bankruptcy Code to lift the automatic stay thereunder (the
“Automatic
Stay”) in connection with giving any notice
described in this Section
7.1 (and agree not to
object to any non-breaching Party seeking to lift the Automatic Stay in
connection with giving any such notice, if necessary). Any such termination (or
partial termination) of this Agreement shall not restrict the
Parties’ rights and remedies for any breach of
this Agreement by any Party, including, but not limited to, the reservation of
rights set forth in Section
5 hereof, and the right of specific
performance set forth in Section
8.8. For the
avoidance of doubt, except as set forth in Section
7.1(e)(5) hereof, any
termination of the Equity Commitment Agreement by the Debtors pursuant to
Section 10.1(b)(iii) thereof shall not result in a right for any
Party to terminate this Agreement.
If this Agreement is terminated or
alleged to have been terminated pursuant to Section
7.1(e) hereof, the Debtors
shall have three (3) Business Days to provide notice (such notice, the “Dispute
Notice”) to the Requisite Investors of their
intent to commence expedited proceedings in the Bankruptcy Court to determine
whether a Plan Support Termination Event has occurred (the “Expedited
Proceedings”). The Consenting Senior Note
Holders hereby agree to
consent to the commencement of the Expedited Proceedings and this Agreement
shall not be terminated with respect to the Consenting Senior Note Holders
pursuant to Section
7.1(e) hereof unless and
until (A) the Debtors fail to file a motion seeking to commence the Expedited
Proceedings within seven (7) Business Days after receipt of the Dispute Notice
by counsel to the Consenting Senior Note Holders, or (B) a Final Order has been
entered determining that a Plan Support Termination Event has occurred, provided that the Debtors shall not be permitted
to proceed with consummation of the Claims Conversion Sub Plan pending entry of
such Final Order. For the avoidance of doubt, this last paragraph of
Section
7.1 shall survive any
termination of this
Agreement.
15
|
7.2
|
Effects of
Termination.
|
In the event this Agreement is
terminated (or is terminated with respect to any Party), the Parties hereto (or
the Parties with respect to which this Agreement has been terminated, as
applicable) shall not have
any continuing liability or obligation under this Agreement and each Party (or
each Party with respect to which this Agreement has been terminated, as
applicable) shall have all the rights and remedies available to it under
applicable law; provided, however, that no such termination shall relieve
any Party from liability for its breach or non-performance of its obligations
hereunder prior to the date of termination. Following any termination of this
Agreement (including a termination by a Consenting Senior Note Holder with respect to such
Consenting Senior Note Holder pursuant to Section
7.1(d) hereof), the Debtors
may proceed to seek confirmation of the Amended Plan and shall not be required
to re-solicit acceptances of the Amended Plan to the extent that any such solicitation has occurred;
provided that the Consenting Senior Note Holders
shall be deemed to have voted to reject the Claims Conversion Sub Plan for the
purposes of confirmation of the Claims Conversion Sub Plan; provided further, that to the extent that any Consenting Senior Note
Holder has terminated this Agreement with respect to itself pursuant to
Section
7.1(d) hereof, such
Consenting Senior Note Holder shall be deemed to have voted to reject the
Amended Plan without regard to whether the Debtors seek confirmation of the Rights
Offering Sub Plan or Claims Conversion Sub Plan; provided further, that the Debtors shall adjourn the
Confirmation Hearing to the date that is thirty (30) days from the date that
this Agreement has been terminated (or the soonest date thereafter permitted
by the Bankruptcy Court’s schedule), and, during such period,
the Consenting Senior Note Holders shall have the opportunity to prepare for the
Confirmation Hearing, including by taking discovery and filing pleadings
and objections.
|
Section 8.
|
Miscellaneous
Terms.
|
|
8.1
|
Binding Obligation;
Assignment.
|
|
|
(a)
|
Binding
Obligation. Subject
to the provisions of sections 1125 and 1126 of the Bankruptcy Code, this
Agreement is a legally valid and binding obligation of the
Parties and their
respective members, officers, directors, agents, financial advisors,
attorneys, employees, partners, affiliates, successors, assigns, heirs,
executors, administrators, and representatives, other than a trustee or
similar representative appointed in the Chapter 11 Cases,
enforceable in accordance with its terms, and shall inure to the benefit
of the Parties and their respective members, officers, directors, agents,
financial advisors, attorneys, employees, partners, affiliates,
successors, assigns, heirs, executors,
administrators, and representatives. Nothing in this Agreement, express or
implied, shall give to any Entity, other than the Parties and their
respective members, officers, directors, agents, financial advisors,
attorneys, employees, partners, affiliates, successors,
assigns, heirs, executors, administrators, and representatives, any
benefit or any legal or equitable right, remedy or claim under this
Agreement. The agreements, representations, warranties, covenants, and
obligations of each Consenting Senior Note Holder
contained in this Agreement are, in all respects, several, but not
joint.
|
16
|
|
(b)
|
Assignment.
No rights or
obligations of any Party under this Agreement may be assigned or
transferred to any other entity except as provided in Section
2.2
hereof.
|
|
8.2
|
Further
Assurances.
|
The Parties agree to execute and deliver
such other instruments and perform such acts, in addition to the matters herein
specified, as may be reasonably appropriate or necessary, from time to time, to
effectuate the agreements
and understandings of the Parties, whether the same occurs before or after the
date of this Agreement.
|
8.3
|
Headings.
|
The headings of all sections of this
Agreement are inserted solely for the convenience of reference and are not
a part of and are not
intended to govern, limit, or aid in the construction or interpretation of any
term or provision hereof.
|
8.4
|
Governing
Law.
|
THIS AGREEMENT IS TO BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS PRINCIPLES
THEREOF.
Further, by its execution and delivery
of this Agreement, each of the Parties hereto hereby irrevocably and
unconditionally agrees
that, the Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of or in connection with this Agreement.
|
8.5
|
Complete Agreement,
Interpretation, Modification, and
Conflicts.
|
|
|
(a)
|
Complete
Agreement. This Agreement
constitutes the
complete agreement between the Parties with respect to the subject matter
hereof and supersedes all prior agreements, oral or written, between or
among the Parties with respect
thereto.
|
|
|
(b)
|
Interpretation.
This Agreement is the
product of negotiation by and among the Parties. Any
Party enforcing or interpreting this Agreement shall interpret it in a
neutral manner. There shall be no presumption concerning whether to
interpret this Agreement for or against any Party by reason of that Party
having drafted this Agreement, or any portion
thereof, or caused it or any portion thereof to be
drafted.
|
|
|
(c)
|
Modification of
Plan Support Agreement. This Agreement may
only be modified, altered, amended, or supplemented by an agreement in
writing signed by the Debtors and the Requisite Senior Note
Holders; provided, however, that Section
7.1(d) hereof and
this Section
8.5(c) shall not be
amended without the consent of each Consenting Senior Note Holder;
provided further, that any other provision hereof
conferring rights
upon an individual Consenting Senior
Note
|
17
Holder, or conditioning the obligations
of any such Consenting Senior Note Holder hereunder, by reference to
Section
7.1(d) hereof shall not be
amended without the consent of each Consenting Senior Note Holder; and provided further that Section
8.14 hereof (and this
proviso of this Section
8.5(c)) shall not be
amended without the consent of each Consenting Senior Note Holder which is a
member of the Creditors’ Committee.
|
|
(d)
|
Modification of
Amended Plan.
Subject to the rights
set forth in Section
7.1(d) hereof, the
Amended Plan may only be modified, altered, amended or supplemented as set
forth in the Equity Commitment
Agreement.
|
|
|
(e)
|
Conflicts. To the extent there is any
conflict between the terms of this Agreement and the terms of the
Equity Commitment Agreement, the rights of the Investors under the Equity
Commitment Agreement shall be governed by the Equity Commitment Agreement
in all respects.
|
|
8.6
|
Calculation of Visteon
Claims.
|
The Parties acknowledge and agree that on the effective
date of the Amended Plan, the 7.00% Senior Notes Claims, 8.25% Senior Notes
Claims, and 12.25% Senior Notes Claims shall be Allowed in the aggregate amount
of $456.82 million, $211.41 million, and $202.36 million, respectively.
|
8.7
|
Execution and Binding Obligations
of this Agreement.
|
This Agreement may be executed and
delivered (by facsimile or otherwise) in any number of counterparts, each of
which, when executed and delivered, shall be deemed an original and all
of which together shall
constitute the same agreement. Except as expressly provided in this
Agreement, each individual executing this Agreement on behalf of a Party has
been duly authorized and empowered to execute and deliver this Agreement on
behalf of said Party.
This Agreement will become binding and
effective on the Parties upon its execution by (a) the Debtors, (b) holders of
7.00% Senior Notes and 8.25% Senior Notes holding at least two-thirds in amount
of the aggregate amount of the 7.00% Senior Notes and 8.25% Senior Notes; and (c)
holders of 12.25% Senior Notes holding at least two-thirds in amount of the
aggregate amount of the 12.25% Senior Notes; provided that the Debtors’ obligations hereunder shall be subject
to entry of the Plan Support Agreement Approval
Order.
|
8.8
|
Specific
Performance.
|
If a Party breaches any obligation,
term, or provision of this Agreement, such Party shall not be liable for money
damages. This Agreement, including, without limitation, the Parties’ respective obligations to vote for and support the Amended
Plan as provided herein, and to facilitate its confirmation and consummation as
provided herein, is intended as a binding commitment enforceable in accordance
with its terms. It is understood and agreed by each of the Parties hereto that money damages would
not be a sufficient remedy for any breach of this Agreement by any Party (and in
any event is not a remedy available under this Agreement),
and
18
each non-breaching Party (as applicable)
shall (a) subject to prior approval of the Disclosure Statement
pursuant to section 1125 of the Bankruptcy Code, with respect to voting for the
Amended Plan as provided herein, and (b) with respect to all other obligations
contained herein, in each case, be entitled solely to specific performance and injunctive or other
equitable relief as a remedy for any such breach.
|
8.9
|
Settlement
Discussions.
|
This Agreement and the Restructuring are
part of a proposed settlement among the Parties with respect to the Relevant
Claims and Relevant
Interests. Nothing herein shall be deemed an admission of any kind.
To the extent provided by Federal Rule of Evidence 408 and any applicable state
rules of evidence, this Agreement and all negotiations relating thereto shall
not be admissible into evidence in any proceeding other than a
proceeding to enforce the terms of this Agreement.
|
8.10
|
Consideration.
|
The Debtors and each Consenting Senior
Note Holder hereby acknowledge that no consideration, other than that
specifically described herein and in the Amended Plan shall be due or paid to
the Consenting Senior Note Holders for their agreement to support confirmation
of the Amended Plan in accordance with the terms and conditions of this
Agreement, other than the Debtors’ agreement to use
commercially reasonable efforts to obtain approval
of the Disclosure Statement and to seek confirmation of the Amended Plan in
accordance with the terms and conditions of the Amended
Plan.
|
8.11
|
Notices.
|
All notices hereunder shall be deemed
given if in writing and
hand-delivered or sent by courier, by registered or certified mail (return
receipt requested), or by electronic mail to the following addresses (or at such
other addresses as shall be specified by like notice):
|
|
(a)
|
if to the Debtors, to: Visteon
Corporation, Xxx
Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000; Attn.: Xxxxxxx
X. Xxxxxxx (xxxxxxxx@xxxxxxx.xxx); with copies to: (i) Xxxxxxxx &
Xxxxx, LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attn.: Xxxx
Xxxxxxxxxxx, P.C (xxxx.xxxxxxxxxxx@xxxxxxxx.xxx) and Xxxxx X. Xxxxxx
(xxxxx.xxxxxx@xxxxxxxx.xxx) and (ii) Xxxxxxxx & Xxxxx, LLP, 000 Xxxxx
XxXxxxx, Xxxxxxx, XX 00000; Attn: Xxxxx X. Xxxxx Xx.
(xxxxx.xxxxx@xxxxxxxx.xxx);
and
|
|
|
(b)
|
if to a Consenting Senior Note
Holder, including a transferee thereof, to: (i) White & Case
LLP, Wachovia Financial Center, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxx, Xxxxxxx 00000, Attn.: Xxxxxx X. Xxxxxx
(xxxxxxx@xxxxx.xxxxxxxxx.xxx), (ii) White & Case LLP, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn.: Xxxxxx Xxxx
(xxxxx@xx.xxxxxxxxx.xxx) and Xxxxxxx Xxxxx (xxxxxx@xx.xxxxxxxxx.xxx), and
(iii) Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLP, One Bryant Park, New York,
New York 10036, Attn.: Xxxxxxx Xxxxxx (xxxxxxx@xxxxxxxx.xxx) and Xxxx
Xxxxx (xxxxxx@xxxxxxxx.xxx).
|
19
Any notice given by hand-delivery,
courier, mail, or electronic mail shall be effective when
received.
|
8.12
|
Third Party
Beneficiaries.
|
This Agreement is intended for the
benefit of the Parties hereto and no xxxxx person shall have any right
hereunder.
|
8.13
|
Relationship Among the
Parties.
|
It is understood and agreed that no
Consenting Senior Note Holder has any duty of trust or confidence with any other
Consenting Senior Note Holder and there are no commitments arising among or
between the Consenting
Senior Note Holders except as expressly provided herein.
|
8.14
|
Committee
Membership.
|
Notwithstanding anything to the contrary
herein, nothing in this Agreement shall, or shall be deemed to, prevent or limit
any Consenting Senior Note Holder (or any of its members, officers,
directors, agents, financial advisors, attorneys, employees, partners,
affiliates, successors, assigns, or representatives) from taking any action or
refraining from taking any action to exercise its (or their) fiduciary
duties in its capacity as a member of the
Creditors’ Committee.
* * * * * *
20
IN
WITNESS WHEREOF, the Parties have entered into this Agreement on the day and
year first above written.
VISTEON
CORPORATION
(on
behalf of itself and its Debtor affiliates)
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxx
|
Name:
Xxxxxxx X. Xxxxxxx
Title: Vice
President and General Counsel
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
CQS
Directional Opportunities
Master Fund
Limited
|
|
|
By:
|
/s/ Xxxxx
Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Its:
|
Authorized
Signatory
|
|
|
Telephone:
|
|
|
|
Facsimile:
|
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
|
Dated:
May 6, 2010
|
Plan
Support Agreement Re: Visteon
Corporation
|
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Kivu
Investment Fund
|
|
|
|
Limited
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxxxx
|
|
|
Its:
|
Director
|
|
|
Telephone:
|
0
(000) 000-0000
|
|
|
Facsimile:
|
0
(000) 000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
DEUTSCHE
BANK
|
|
|
|
SECURITIES
INC.
|
|
|
|
(Solely
with respect to
|
|
|
|
Distressed
Products Group)
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
Managing
Director
|
|
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
|
|
Title:
|
Managing
Director
|
|
|
Telephone:
|
000-000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Elliot
International, LP
|
|
|
By:
|
Elliot
International Capital Advisors Inc.
as
Attorney-in-Fact
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Its:
|
Vice
President
|
|
|
Telephone:
|
000
000-0000
|
|
|
Facsimile:
|
000
000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
The
Liverpool Limited Partnership
|
|
|
By:
|
Liverpool
Associates Ltd., as General Partner
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Its:
|
Vice
President
|
|
|
Telephone:
|
000
000-0000
|
|
|
Facsimile:
|
000
000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Xxxxxxx,
Xxxxx & Co.
|
|
|
|
(Solely
with respect to the High
|
|
|
|
Yield
Distressed Investing Group)
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Its:
|
Managing
Director
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Monarch
Alternative Capital
|
|
|
|
LP
(held thru DTC 0005
|
|
|
|
Xxxxxxx)
|
|
|
By:
|
/s/ Xxxxxxxxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxxxxxxxx
Xxxxxxx
|
|
|
Its:
|
Managing
Principal
|
|
|
Telephone:
|
000
000 0000
|
|
|
Facsimile:
|
000
000 0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
OAK
HILL ADVISORS,
|
|
|
|
L.P.,
on behalf of certain
|
|
|
|
private
funds and separate
|
|
|
|
accounts
that it manages
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxx
|
|
|
Its:
|
Authorized
Person
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Dated:
May 6, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
SOLA
LTD
|
|
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
|
Its:
|
Director
|
|
|
Telephone:
|
000-000-0000
(Xxxx Xxxxxxx)
|
|
|
Facsimile:
|
000-000-0000
|
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
___________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
ALDEN
GLOBAL DISTRESSED
OPPORTUNITIES
FUND, L.P.
|
|
|
By:
|
ALDEN
GLOBAL DISTOS OPPORTUNITIES
FUND
GP, LLC
|
|
|
By:
|
/s/ Xxx
Xxxxx
|
|
|
Name:
|
Xxx
Xxxxx
|
|
|
Its:
|
Vice
President
|
|
|
Telephone:
|
000.000.0000
|
|
|
Facsimile:
|
212.702.0145
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
NEWFINANCE
ALDEN SPV
|
|
|
By:
|
ALDEN
GLOBAL CAPITAL, its Trading Advisor
|
|
|
By:
|
/s/ Xxx
Xxxxx
|
|
|
Name:
|
Xxx
Xxxxx
|
|
|
Its:
|
Vice
President
|
|
|
Telephone:
|
000.000.0000
|
|
|
Facsimile:
|
212.702.0145
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
XXXXX
ARBITRAGE LP
|
|
|
By:
|
/s/ Tal
Gurion
|
|
|
Name:
|
Xxx
Xxxxxx
|
|
|
Its:
|
Managing
Director of Investment Mgr.
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
XXXXX
ARBITRAGE OFFSHORE
|
|
|
By:
|
/s/ Tal
Gurion
|
|
|
Name:
|
Xxx
Xxxxxx
|
|
|
Its:
|
Managing
Director of Investment Mgr.
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Armory
Advisors, LLC
|
|
|
|
Investment
Manager of Armory Master Fund Ltd.
and
Separately Managed Accounts
|
|
|
By:
|
/s/ Xxx
Xxxxxxx
|
|
|
Name:
|
Xxx
Xxxxxxx
|
|
|
Its:
|
Manager
|
|
|
Telephone:
|
000.000.0000
|
|
|
Facsimile:
|
000.000.0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
CAPITAL
VENTURES INTERNATIONAL
|
|
|
By:
|
Susquehanna
Advisors Group Inc.,
its
authorized agent
|
|
|
By:
|
/s/ Xxxx
Xxxxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxxxx
|
|
|
Its:
|
Vice
President
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
610-147-2081
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
CAPIAN
CAPITAL
|
|
|
|
PARTNERS,
L.P.
|
|
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
|
Its:
|
Principal
|
|
|
Telephone:
|
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
CAPIAN
SELECT
|
|
|
|
CREDIT
MASTER FUND,
LTD.
|
|
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
|
Its:
|
Principal
|
|
|
Telephone:
|
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
|
|
By:
|
/s/ Xxxx
Xxxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxxx
|
|
|
Its:
|
Authorized
Signatory
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
CSS,
LLC
|
|
|
By:
|
/s/ Xxxxx
Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Its:
|
Partner
|
|
|
Telephone:
|
000
000 0000
|
|
|
Facsimile:
|
000
000 0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Cumberland
Associates LLC
|
|
|
By:
|
/s/ Xxxxx
Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Its:
|
Member
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Cyrus
Europe Master
|
|
|
|
Fund,
Ltd.
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Its:
|
Chief
Operating Officer
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Xxxxx
Select Opportunities
|
|
|
|
Master
Fund, Ltd.
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Its:
|
Chief
Operating Officer
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Crescent
1, L.P
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Its:
|
Chief
Operating Officer
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
CRS
Fund, Ltd.
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Its:
|
Chief
Operating Officer
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Cyrus
Opportunities
|
|
|
|
Master
Fund II, Ltd.
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Its:
|
Chief
Operating Officer
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Halbis
Distressed Opportunities Master Fund
Ltd.
|
|
|
By:
|
/s/ Xxxxx
Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Its:
|
VP
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
MARINER
LDC
|
|
|
By:
|
/s/ Xxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
|
Its:
|
Principal
|
|
|
Telephone:
|
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
MARINER
LDC
|
|
|
By:
|
/s/ Xxxxxxx
Xxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
Its:
|
Managing
Member of Investment Manager
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Merced
Partners Limited
|
|
|
|
Partnership
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
|
Its:
|
Authorized
Representative
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Merced
Partners II, L.P.
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxx
|
|
|
Its:
|
Authorized
Representative
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name of Institution:
|
QVT Fund LP
|
|
|
By:
|
QVT
Associates GP LLC, its general
partner
|
|
|
By:
|
/s/ Xxxx
Xxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
|
|
Its:
|
Managing
Member
|
|
|
Telephone:
|
000
000 0000
|
|
|
Facsimile:
|
000
000 0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Quintessence
Fund L.P.
|
|
|
By:
|
QVT
Associates GP LLC, its general
partner
|
|
|
By:
|
/s/ Xxxx
Xxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
|
|
Its:
|
Managing
Member
|
|
|
Telephone:
|
000
000 0000
|
|
|
Facsimile:
|
000
000 0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
RIVA
RIDGE MASTER FUND, LTD.
|
|
|
By:
|
/s/ Xxxxxxx
Xxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
Its:
|
Managing
Member of Investment Manager
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Seneca
Capital LP and Seneca Capital International
Ltd
|
|
|
By:
|
/s/ Xxxxxxx
Xxxxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxxxx
|
|
|
Its:
|
CFO,
Seneca Capital Investments, LP
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
212-826-1108
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Silver
Point Capital, L.P. on behalf
of
its affiliates and related funds
|
|
|
By:
|
/s/ Xxxxxxx
Xxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxx
|
|
|
Its:
|
Authorized
Person
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 3, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
SPECTRUM
INVESTMENT PARTNERS L.P.
|
|
|
By:
|
Spectrum
Group Management LLC
|
|
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
|
|
Its:
|
Managing
Member
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 3, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
SIPI
MASTER LTD.
|
|
|
By:
|
Spectrum
Investment Management LLC
|
|
|
By:
|
/s/ Xxxxxxx X.
Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxx
|
|
|
Its:
|
Managing
Member
|
|
|
Telephone:
|
(000)
000-0000
|
|
|
Facsimile:
|
(000)
000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Xxxxx
Criterion Master Fund Ltd.
|
|
|
By:
|
Xxxxx
Criterion Management LLC,
its
Investment Manager
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxx
|
|
|
Its:
|
Authorized
Signatory
|
|
|
Telephone:
|
+ 0
(000) 000-0000
|
|
|
Facsimile:
|
+ 0
(000) 000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Xxxxx
Master Fund Ltd.
|
|
|
By:
|
Xxxxx
Offshore Management LLC,
its
Investment Manager
|
|
|
By:
|
/s/ Xxxxxx X.
Xxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxx
|
|
|
Its:
|
Authorized
Signatory
|
|
|
Telephone:
|
+ 0
(000) 000-0000
|
|
|
Facsimile:
|
+ 0
(000) 000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
UBS
Securities LLC
|
|
|
|
(solely
with respect to the Distressed
Debt
Trading Group)
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
|
Its:
|
Managing
Director
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
|
|
|
By:
|
/s/ Xxxx
Xxxxx
|
|
|
Name:
|
Xxxx
Xxxxx
|
|
|
Its:
|
MD
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant
Claims:3
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Relevant Interest other than Senior Notes Claims:
[REDACTED]
________________________
3
Financial Information to be provided on a confidential basis and to be redacted
in court filings and to the extent not redacted, filed under
seal.
Signature
Page to Plan Support Agreement
Dated:
May 3, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
VENOR
CAPITAL
|
|
|
|
MASTER
FUND, LTD.
|
|
|
By:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
|
Its:
|
Authorized
Signatory
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Whitebox
Hedged High Yield Partners, LP
|
|
|
By:
|
/s/ Xxxxxxxx
Xxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxx
|
|
|
Its:
|
COO/CFO
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
__________, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Whitebox
Combined Partners, LP
|
|
|
By:
|
/s/ Xxxxxxxx
Xxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxx
|
|
|
Its:
|
COO/CFO
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
April 30, 2010
CONSENTING
SENIOR NOTE HOLDER
|
|
Name
of Institution:
|
Brencourt
Credit Opportunities Master, Ltd.
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Its:
|
Authorized
Signatory
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
May 5, 2010
CONSENTING
SENIOR NOTE HOLDER1
|
|
Name
of Institution:
|
Advent
Capital Management, LLC
|
|
|
By:
|
/s/ Xxxxxx
Xxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
|
Its:
|
Managing
Director
|
|
|
Telephone:
|
000-000-0000
|
|
|
Facsimile:
|
000-000-0000
|
Aggregate
outstanding principal amount of Senior Notes Claims that are Relevant Claims and
Equity Interests:
[REDACTED]
Description
and amount of each additional Claim and Equity Interest that is a Relevant Claim
and Equity Interest other than Senior Notes Claims:
[REDACTED]
Note: Financial
Information to be provided on a confidential basis and to be redacted in court
filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
_________________
1 Notwithstanding
the various provisions in this Agreement that indicate that the terms of the
Agreement will cover current and future holdings, the Parties to the Agreement
agree and understand that the above-signed Consenting Senior Note Holder is only
agreeing to execute this Agreement with respect to the holdings listed hereto,
and may hold other Claims and Interests which are not and will not be subject to
the provisions of this Agreement.
