EXHIBIT 10.2
MASTER TRANSFER AGREEMENT
THIS MASTER TRANSFER AGREEMENT is entered into as of the 30th day of
March, 2000, by and among VISTEON CORPORATION, a corporation organized under
the laws of Delaware, U.S.A., with offices at 0000 Xxxx Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000 ("Visteon"), and FORD MOTOR COMPANY, a corporation organized
under the laws of Delaware, U.S.A., with offices at The American Road,
Dearborn, Michigan 48121 ("Ford").
R E C I T A L S
WHEREAS, Ford has determined it would be appropriate and beneficial to
separate the activities now being conducted under the name "Visteon Automotive
Systems, an enterprise of Ford Motor Company", including those activities
conducted by any entity in which Ford, directly or indirectly, owns or controls
50% or more of its stock or other equity interests (a "Subsidiary") and by any
entity in which Ford, directly or indirectly, owns or controls less than 50%
but more than 20% of its stock or other equity interests (an "Affiliate") which
is aligned with such enterprise, which presently includes the Chassis Systems,
Climate Control Systems, Interior and Exterior Systems, Energy Transformation
Systems, Glass Division, and the Visteon Technology Office (collectively, with
historic operations, including the former Automotive Products Operations,
Automotive Components Division, Electronics, Plastics and Trim, Climate
Control, Chassis, Electrical and Fuel Handling, and Glass Divisions, the
"Business");
WHEREAS, Ford has concluded that the separation of the Business from
its automaking business would (i) alleviate competitive barriers to expanding
the Business beyond sales to Xxxx, Xxxx Subsidiaries and Ford Affiliates, (ii)
allow Ford to overcome competitive barriers to making purchases from
third-party automotive suppliers, and (iii) enhance the Business' ability to
attract employees and permit the Business to offer employee incentives more
directly tied to the performance of the Business;
WHEREAS, Ford has caused Visteon to be formed for the purpose of
carrying on and conducting the Business;
WHEREAS, Ford desires to transfer to Visteon certain entities and
assets of Ford (or its Subsidiaries) now devoted to the Business and to have
Visteon assume certain liabilities associated with the Business, as are more
particularly described below (the "Transfer");
WHEREAS, Visteon wishes to acquire such entities and assets from Ford
and is therefore willing to assume said liabilities;
WHEREAS, after the Transfer, the parties intend to either (i) effect
an initial public offering of shares of common stock of Visteon ("IPO"), have
Visteon distribute the proceeds of such offering to Ford, and use the proceeds
of such offering to pay Ford's creditors or
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shareholders, or (ii) not effect an IPO, but in either case, Ford intends to
effect a distribution of all of the shares of Visteon stock then owned by Ford
to Ford's shareholders (the "Distribution");
WHEREAS, the parties intend that the transactions contemplated by this
Agreement (including the intended Distribution) shall be treated as tax-free
transactions under Sections 351, 368(a) and 355 of the Internal Revenue Code of
1986, as amended (the "Code"); and
WHEREAS, in connection with the transactions contemplated by the
parties, and in order to support the purposes contemplated thereby, Ford and
certain of its Subsidiaries and Affiliates are entering into several ancillary
agreements with Visteon and its Subsidiaries and Affiliates, including, without
limitation, a Master Separation Agreement between Ford and Visteon, a Tax
Sharing Agreement between Ford and Visteon, an Hourly Employee Assignment
Agreement between Ford and Visteon, an Employee Transition Agreement between
Ford and Visteon, Information Technology Services Agreement between Ford and
Visteon, a Purchase and Supply Agreement between Ford and Visteon, an
Aftermarket Relationship Agreement between Visteon and the Automotive Consumer
Services Group of Ford, a Patent Cross-License Agreement, between Visteon
Global Technologies, Inc. ("VGTI") and Ford Global Technologies, Inc. ("FGTI"),
a Technology Cross-License Agreement between VGTI and FGTI and various real
estate leases. (The foregoing agreements described above are collectively
referred to as the "Ancillary Agreements.")
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. TRANSFERS TO VISTEON.
Ford shall assign, transfer, and convey to Visteon all of Ford's right,
title and interest in and to the following properties and assets relating to
the Business as a capital contribution (collectively, the items listed in
Section 1 (a) through (l) are referred to as the "Visteon Assets"):
(a) Capital Stock. All of the capital stock owned by Ford in the
entities listed in Exhibit 1(a) attached hereto, to be effective as of the
dates specified on such Exhibit 1(a).
(b) Membership Interests. Ford's entire membership interest in the
entities listed in Exhibit 1(b) attached hereto, to be effective as of the date
specified on such Exhibit 1(b).
(c) Joint Ventures. Effective as of 12:01 a.m., Eastern Standard Time,
on April 1, 2000, (the "US Transfer Date"), Ford's equity interest (including
Ford's membership interest or capital stock and Ford's interest in all related
joint venture agreements) in the entities listed in Exhibit 1(c) attached
hereto.
(d) Owned Real Property. Effective as of 12:01 a.m., Eastern Standard
Time, on the US Transfer Date, all of Ford's right, title and interest in and
to the real property located and identified in Schedule A, attached hereto, and
all buildings, improvements and appurtenances thereto.
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(e) Leased Real Property. Effective as of 12:01 a.m., Eastern Standard
Time, on the US Transfer Date, the leasehold interests in real property held by
Ford under leases identified in Schedule B, attached
hereto.
(f) Owned Tangible Personal Property. Effective as of 12:01 a.m.,
Eastern Standard Time, on the US Transfer Date, except as otherwise provided
herein, all tangible personal property, including all equipment, machinery,
vehicles, leasehold improvements, furniture, fixtures, signs, inventories,
tools (other than customer owned tools) and other personal property owned by
Ford and (i) reflected on the combined balance sheet for the Business as of
March 31, 2000, as prepared by Ford (the "Balance Sheet"), including assets
written off or expensed but still used exclusively by the Business, or (ii)
which are located on the properties referred to in Schedules A and B and used
exclusively in the Business, provided, however, with respect to inventories,
including raw materials, stores, spare parts, containers, work in process,
finished goods and other supplies and materials, those (A) located on the
properties referred to in Schedules A and B or in transit to or from such
locations or in the possession of the suppliers of the Business as of the US
Transfer Date and (B) either reflected on the Balance Sheet or used exclusively
in the Business, are included, or (iii) used exclusively in the Business,
wherever located, to the extent that Visteon identifies and requests, in
writing prior to October 1, 2000, such assets from Ford and Ford determines
such assets are not useful to Ford for its operations. In the event Visteon
requests assets pursuant to clause (iii) immediately above, and Ford determines
not to transfer any such assets, Visteon will be provided with the use of such
assets under the terms of the Master Separation Agreement for the provision of
transitional services. The Balance Sheet will be prepared using the same
accounting principles under which the balance sheet of the Business, at
December 31, 1999, was prepared.
(g) Leased Personal Property. Effective as of 12:01 a.m., Eastern
Standard Time, on the US Transfer Date, except as otherwise provided herein,
all leasehold interests in equipment, vehicles, machinery, furniture, fixtures,
signs and other tangible personal property held by Ford and used exclusively in
the Business as of the US Transfer Date.
(h) Contract Rights and Other Intangible Property. Effective as of
12:01 a.m., Eastern Standard Time, on the US Transfer Date, except as otherwise
provided herein, (i) cash, accounts receivable, accruals, interests as
beneficiary under letters of credit, prepaid expenses, deposits and other
retentions held by third parties owned by Ford and reflected on the Balance
Sheet, and (ii) Ford's rights under all contracts, agreements, licenses,
equipment leases, sales orders, purchase orders, understandings, arrangements,
plans and documents relating to the Business and existing on the US Transfer
Date, together with the right to purchase goods and services under existing
blanket purchase orders of Ford relating to the Business.
(i) Claims. Effective as of 12:01 a.m., Eastern Standard Time, on the
US Transfer Date, claims, causes of action, rights of recovery, rights of set
off and rights of subrogation to the extent they are related to the Visteon
Assets, the Visteon Liabilities or the Business. Visteon acknowledges that Ford
has entered into settlements with its insurance carriers with respect to
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existing and future environmental conditions and claims and Visteon has been
allocated $15 million of the proceeds of such settlements. Neither Ford nor
Visteon have any remaining rights under those policies to make claims and
Visteon agrees that it will not attempt to make any claims under such policies.
(j) Permits. Effective as of 12:01 a.m., Eastern Standard Time, on the
US Transfer Date, except as otherwise provided herein, and the rights of Ford
under all licenses, franchises, permits, authorizations and approvals used
exclusively in the Business.
(k) Intellectual Property. Effective as of 12:01 a.m., Eastern
Standard Time, on the US Transfer Date, the name "Visteon" and associated logo,
and all the trademarks (including the applications and registrations for
trademarks) listed on the attached Schedule D, together with all goodwill and
going concern value of the Business.
(l) Records. Financial, accounting and operating data and records
relating exclusively to the Business and located in the locations listed on
Schedules A or B, or at the Dearborn Glass Plant, or located in record storage
locations maintained by Ford and sent to storage by personnel associated with
the Business, including, without limitation, books, records, electronic data,
financial and corporate systems manuals, notes, sales and sales product data,
advertising materials, credit information, cost and pricing information,
customer and supplier lists, facility blueprints and plant layouts.
Additionally, Ford shall transfer to Visteon all minute books, stock ledgers,
and other corporate documents of Visteon Subsidiaries and Visteon Affiliates,
to the extent in the possession of Ford. In addition, Visteon may copy any
other records relating to the Business in the possession of Ford, at Visteon's
expense.
2. OTHER TRANSFERS AND ACTIONS.
(a) Ford has or will assign, transfer, and convey the properties and
assets listed on Exhibit 2(a), attached hereto, to the applicable Visteon
Subsidiaries by the dates specified on such exhibit;
(b) In addition, Ford has caused or will cause the actions listed on
Exhibit 2(b), attached hereto, to be taken by its Subsidiaries by the dates
specified on such exhibit;
(c) As a result of the transfers described in this Agreement, the
parties acknowledge and agree that Visteon will also have an indirect interest
in the entities listed on Exhibit 2(c) attached hereto; and
(d) Each entitiy that is to be transferred under Section 1 above or is
described in Exhibits 2(a), 2(b) or 2(c) will be operated for the benefit of
Visteon on and after the US Transfer Date.
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3. EXCLUDED ASSETS.
Notwithstanding anything, express or implied, to the contrary
contained herein, the following properties, assets and rights used in, or
related to, the Business are excluded from the Transfer:
(a) Certain real property and related improvements thereon known as
the Dearborn Glass Plant (provided Visteon will be given the right to continue
to occupy such plant until July 31, 2000 as it winds up operations in
accordance with the applicable lease agreement) and the Canton Forge Plant and
the vacant land associated therewith;
(b) All of the assets primarily associated with Ford's
telecommunications network, such as the Ford Communications Network, that are
located at any of the Visteon facilities;
(c) Tooling which is owned by Ford or other third party customers and
is not carried on the Balance Sheet, wherever located;
(d) Vehicles provided by Ford or Ford Motor Credit Company for use by
the Business and not carried on the Balance Sheet, including management lease,
executive, commercial, sales, pool, prototype and quality focus test fleet
vehicles;
(e) All blanket purchase orders issued by Ford with respect to goods
and services purchased both for the Business and for other operations at Ford
(with the understanding that Ford will continue to provide the benefit of
existing blanket purchase orders to the Business, at the cost of Visteon with
respect to such goods and services); and
(f) All contracts and agreements of Ford relating to employees of the
Business, including, without limitation, collective bargaining agreements,
employee benefit plans, and other commitments to such employees, subject to the
terms of the Hourly Employee Assignment Agreement and the Employee Transition
Agreement.
4. ASSUMED LIABILITIES.
(a) General Assumption. Except as otherwise specifically retained by
Ford in writing, including those retained in this Section 4, Section 5 below
and in any Ancillary Agreement, Visteon will, as of the US Transfer Date,
assume, and agrees to perform, the debts, liabilities, guarantees, indemnities,
contingencies, and obligations of Ford, whether asserted or unasserted, fixed
or contingent, accrued or unaccrued, known or unknown, and howsoever arising,
relating to the Business, that are (i) reflected in the Balance Sheet and which
remain outstanding on the US Transfer Date, (ii) arise in connection with the
Business between the date of the Balance Sheet and the US Transfer Date and
would be reflected on the financial statements of Visteon as of the US Transfer
Date if such statements were prepared as of the US Transfer Date in accordance
with the same accounting principles on which the Balance Sheet was prepared,
(iii) are expressly provided by this Agreement, any Ancillary Agreement or
other
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written agreement signed by Visteon in connection with the Separation (as
hereafter defined) to be transferred to and assumed by Visteon, or (iv) are
related to or arise out of or in connection with the Visteon Assets or the
Business, whether before or after the date of the Balance Sheet (collectively
referred to as the "Visteon Liabilities").
(b) Limitations on General Assumption. Notwithstanding the
foregoing,the Visteon Liabilities are subject to and shall not be deemed to
include any item specifically excluded or retained by Ford pursuant to this
Section 4(b).
(i) Product Liability. All liabilities for any causes of
action, however presented, alleging that parts, components or systems
that have been (i) manufactured by the Business or (ii) manufactured
by a third party, whether sold or otherwise supplied separately, or
incorporated into components or systems of the Business ("Visteon
Products"), in each case, which have been sold or otherwise supplied
by the Business, have caused personal injuries, injuries to property
or other damages regardless of the theory of liability on which the
claim is based ("Visteon Product Claims") to the extent that such
parts, components or systems were provided to Ford or Ford
Subsidiaries for model year 1996 and before, will be retained by Ford.
Visteon's liability for all other Visteon Product Claims for parts,
components or systems supplied to Ford or Ford Subsidiaries for
vehicles in model year 1997 and thereafter will be governed in
accordance with the terms of Ford's global purchase order terms and
conditions promulgated by Ford with respect to its supply contracts
with third parties as in effect at the time such parts, components or
systems were delivered, as customarily applied to Tier 1 suppliers in
the automotive parts industry by Ford.
(ii) Warranty and Recall. All Visteon Products, in each case,
which have been sold or otherwise supplied by the Business for use in
model year 1997 vehicles (or later model years) manufactured or sold
by Ford or Ford Subsidiaries are deemed to be subject to the warranty
provisions of the global purchase order terms and conditions
promulgated by Ford with respect to its supply contracts with third
parties as in effect at the time such parts, components or systems
were delivered. Visteon agrees it will be liable to Ford and the Ford
Subsidiaries for all warranty claims for such parts, components or
systems to the same extent as another Tier 1 supplier would be liable
if it had supplied such parts, components or systems, and Ford agrees
it will apply the same customary practices to Visteon as Ford applies
to other Tier 1 suppliers in the automotive parts industry.
(iii) Environmental Claims. The Visteon Liabilities include
any existing or future Environmental Claims to the extent they relate
to or arise from the ownership of or operations on (at any time) the
sites listed on Schedules A and B (other than the Monroe Plant, which
is treated separately below). In addition, the Visteon Liabilities
include the Environmental Claims listed on the attached Schedule E, to
the extent of the allocation of such claim to Visteon reflected on
such Schedule. Notwithstanding anything to the contrary herein, Ford
shall retain, and Visteon will have no liability for, any
Environmental Claims which relate to or arise from (A) the ownership
of or operations on (at any time) the sites listed on the attached
Schedule C or (B) Ford's allocation of
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liability as reflected on Schedule E. Each party shall have the
control over any investigation, remediation activities, litigation or
claim process relating to the sites for which it has full
responsibility hereunder. For sites with shared liability, control
will be given to the party with the majority of the liability. For
purposes of this Agreement, the following definitions apply:
"Environmental Claims" shall mean any cleanup, response or removal
activities or any claim, action, cause of action, investigation or
notice (written or oral) by any person or entity alleging potential
liability (including, without limitation, potential liability for
investigation costs, cleanup costs, governmental response costs,
natural resource damages, property damages, personal injuries, or
penalties) arising out of or resulting from: (i) the presence or
release, or threatened release, of any Hazardous Substance; (ii)
circumstances forming the basis of any violation or alleged violation
of any Environmental Law; or (iii) on-site or off-site disposal or
dumping activities.
"Environmental Law" shall mean any and all applicable laws (including
all common law, consents, licenses, permits, certificates, variances,
exemptions, franchises and other approvals issued, granted, given,
required or otherwise made available by any governmental authority)
issued, promulgated or entered into by any governmental authority
relating to the environment or the protection or preservation of human
health or safety.
"Hazardous Substance" shall mean any pollutant, hazardous, acutely
hazardous, or toxic substance, waste or contaminant, or any other
material, including, without limitation, petroleum hydrocarbons and
asbestos, regulated under any Environmental Law.
(iv) Monroe Environmental Claims. All liability for
Environmental Claims relating to the ownership or operations of the
Monroe, Michigan plant will be subject to the agreement of the parties
set forth on the attached Schedule F.
(v) Current Claims. The Visteon Liabilities specifically
include, without limitation, the existing litigation identified on
Schedule G, attached hereto.
(vi) Intellectual Property. Except as provided on the
attached Exhibit I, for any causes of action, however presented,
alleging that Visteon Products infringe or otherwise violate the
intellectual property interests of others ("IP Claims"), (A) for
Visteon Products sold or supplied to Ford or Ford Subsidiaries on or
prior to July 31, 1999, liability shall be retained by Ford, (B)
Visteon will be liable for such IP Claims related to Visteon Products
sold or supplied to Ford or Ford Subsidiaries after July 31, 1999, to
the same extent as other Tier 1 suppliers would be liable if they had
supplied such parts, components or systems to Ford, and (C) for
Visteon Products sold to third parties at any time, any liability will
be included in the Visteon Liabilities. Ford and Visteon agree to
cooperate to establish defenses against liabilities arising from sales
to Ford and identify any licenses to Ford or Visteon which would be
useful in such defenses.
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(vii) Topics Not Covered. The parties have reached agreement
with respect to certain Visteon Liabilities in the area of employee
matters which are covered in the Hourly Employee Assignment Agreement
and the Employee Transition Agreement. They have also entered into
certain other agreements with respect to taxes which are covered in
the Tax Sharing Agreement.
(c) The parties acknowledge and agree that they have undertaken a good
faith effort to identify all material outstanding liabilities of the Business
pertaining to the substantive areas identified in Section 4(b) above. To the
extent that, subsequent to the US Transfer Date, and prior to December 31,
2001, the parties discover additional material liabilities or potential
material liabilities of the Business relating to pre-Transfer events, actions
or occurrences, in the areas governed by subsections (iii), (v), (vi) or (vii)
of Section 4(b), or the business operations of the Business, the parties
undertake that they will consider a mutually agreeable allocation of
responsibility for such items. However, nothing herein obligates Ford to accept
any such liability and Ford will only be liable to the extent it signs a
written agreement accepting all or a portion of the liabilities. The parties
agree that they will consider such allocation through meetings of persons with
appropriate decision making authority, and in no event will the parties be
required to pursue the matter beyond the Vice President level of authority. For
purposes of this section, a claim (or series of related claims) must have a
potential exposure exceeding $50,000,000 (including defense costs) to be
considered material.
5. RETAINED LIABILITIES/CONFLICTS.
(a) Retained Liabilities. Notwithstanding anything to the contrary
contained in Section 4 hereof, Visteon shall not assume any obligation or
liability of Ford with respect to the following (collectively referred to as
the "Retained Liabilities"): (i) cases or claims arising out of the production
or sale of thick film ignition modules which were sold prior to the US Transfer
Date, including, without limitation, those listed on Schedule H hereto, (ii)
Xxxxxxx Xxxxx, et al. v Ford Motor Company, filed on June 9, 1993 in U.S.
District Court, District of Minnesota, alleging race discrimination, (iii) X.
X. Xxxxx Co. v Ford, filed in July, 1999 in U.S. District Court, Eastern
Division, Michigan regarding construction litigation arising out of
environmental remediation of environmental site at Monroe, Michigan, and (iv)
liabilities of the Business explicitly retained by Ford with respect to such
matters as are identified in Section 4(b) above, in any Ancillary Agreement or
in any other writing between the parties.
(b) Conflicts. The parties acknowledge and agree that, except to the
extent this Agreement specifically provides that other agreements control (such
as employment and tax matters), the allocation of liabilities between the
parties and their respective Subsidiaries and Affiliates in connection with the
transfer of the various parts of the Business as contemplated in Sections 1 and
2 above, will be governed and controlled by the principles of allocation set
forth in Section 4 hereof, with appropriate changes for fact specific
differences, as agreed to by the parties, such as the applicable locations of
the Business, and any specific litigation or other claims identified in the
agreement which are peculiar to that Subsidiary or Affiliate or the laws of
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the applicable jurisdiction. In that regard, that parties acknowledge that
Exhibit E contains a description of existing global environmental liabilities
that apply to certain Visteon Subsidiaries as well as to Visteon itself and
this list will control over general assumption language in any other agreements.
In accordance with the foregoing, this Agreement supersedes any prior or
subsequent agreements executed in connection with the Transfer to the contrary
and Ford and Visteon agree that they will each cause their respective
Subsidiaries to abide by these allocation principles, regardless of the actual
wording of the operative transfer documents.
6. COVENANTS.
(a) Ford agrees that to the extent that Ford has not transferred to
Visteon all of the assets needed to conduct the Business as conducted
immediately prior to the US Transfer Date, Ford will provided transitional
services to Visteon which are necessary for the conduct of the Business on such
date, with the exception of services which Ford would not be legally permitted
to provide to Visteon (or its Affiliates) from time to time. The terms under
which such transitional services will be provided are to be set forth in the
Master Separation Agreement between Ford and Visteon. Visteon further agrees
that to the extent Ford or a Ford Subsidiary or Ford Affiliate has guaranteed
any obligations of a Visteon Subsidiary or Visteon Affiliate ("Ford Guaranty"),
(i) Visteon will execute a guaranty of such obligations as requested by Ford,
(ii) Visteon will take reasonable steps to release Ford (or the applicable Ford
Subsidiary or Ford Affiliate) from any Ford Guaranty, and (iii) Visteon
indemnifies Ford and any applicable Ford Subsidiary or Ford Affiliate for any
claims made on a Ford Guaranty.
(b) Visteon agrees to take such steps to replace any indemnities,
bonds or other assurances given by Ford (or Ford Subsidiaries that are not
Visteon Subsidiaries) to any governmental authorities for the Business,
including those issued in connection with environmental permits and licenses,
and customs and import/export laws, as soon as practicable, but in any event,
on or before December 31, 2000, and will be liable to Ford for any claims made
against such indemnities, bonds or assurances by such authorities relating to
the Business. Ford acknowledges that until such indemnities, bonds or other
assurances are replaced, it will continue to honor them subject to Visteon's
foregoing agreement.
(c) Ford agrees that it will, and will cause its Subsidiaries to, not
pursue any product liability and warranty and recall claims against Visteon,
the Visteon Subsidiaries and Visteon Affiliates transferred to Visteon as part
of the Transfer to the extent Ford would have no claim against Visteon under
the allocation of liabilities set forth in Sections 4(b)(i) and (ii) if Visteon
had supplied the parts, components or systems.
(d) It is anticipated by the parties that Ford and Visteon, either
directly or indirectly through their respective Subsidiaries or Affiliates, may
provide services to the other which involve the discharge of waste (i)
generated by Visteon, Visteon Subsidiaries or Visteon Affiliates from Ford
controlled facilities under environmental permits issued to Ford or (ii)
generated by Xxxx, Xxxx Subsidiaries or Ford Affiliates from Visteon controlled
facilities under environmental permits issued to Visteon, Visteon Subsidiaries
or Visteon Affiliates. Visteon agrees that it will reimburse Ford for any
Losses (defined in Section 7 below) resulting from any
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violations of such environmental permits issued to Ford, a Ford Subsidiary or a
Ford Affiliate caused by changes in the discharge of waste associated with the
operations of Visteon, any Visteon Subsidiary or any Visteon Affiliate, as
applicable, to the extent the violation is caused by such discharge. Ford
agrees that it will reimburse Visteon for any Losses resulting from any
violations of such environmental permits issued to Visteon, a Visteon
Subsidiary or a Visteon Affiliate caused by changes in the discharge of waste
associated with the operations of Ford, any Ford Subsidiary or any Ford
Affiliate, as applicable, to the extent the violation is caused by such
discharge. To the extent a violation is caused by actions of both parties, the
liability will be split proportionally to the amount of changes made by the
parties. The parties intend to investigate and identify sites that this will
apply to and enter into an agreement to cover these situations in more detail.
(e) A certain press located at the Monroe, Michigan plant ("Monroe
Facility") and identified as TLSE 3000 Transfer Press, Vendor/Mfg.: Verson, Tag
No. F733872 (the "Monroe Press") is leased by Ford pursuant to a Lease dated as
of August 15, 1991, between Ford, as Lessee, and Wilmington Trust Company and
Xxxxxxx X. Xxxx, as Owner Trustees for AT&T Capital Holdings International Inc.
[Equipment Trust No. 1991 F] (the "ATT Lease"). The ATT Lease covers various
equipment used by Ford at other locations as well as the Monroe Press. Ford
will retain its leasehold interest in the Monroe Press and the Monroe Press
will be located at its present location at the Monroe Facility. If Ford becomes
the legal owner of the Monroe Press in the future, Ford will be deemed to
automatically transfer title to the Monroe Press to Visteon, all at no charge
to Visteon. Visteon, as transferee of legal title to the Monroe Facility,
acknowledges and agrees with respect to the Monroe Press: (i) the Monroe Press
is subject to the ATT Lease subject to the Lessor Parties' interests,
inspection, and other rights, including rights to exercise remedies under the
ATT Lease and the Indenture (including the remedy to repossess the Monroe
Press), (ii) Visteon will not move the Monroe Press from the Monroe Facility
without Ford's written consent, (iii) Visteon has not and will not subject the
Monroe Press to any liens, (iv) Visteon will not interfere with the Lessor
Parties' rights to the Monroe Press, and (v) Visteon will maintain and repair
the Monroe Press, and will otherwise abide by the terms of the ATT Lease that
apply to the Monroe Press and its use thereof. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed to them in the
ATT Lease.
(f) Ford is pursuing a license from Bosch for the ETC Microprocessor
Monitor (i.e., Quizzer), and Ford agrees to make a license inquiry on behalf of
Visteon as well.
7. INDEMNIFICATION.
(a) Visteon agrees to indemnify and save and hold harmless Ford, all
Ford Subsidiaries and all Ford Affiliates, and the officers, directors,
employees, agents, consultants, attorneys, accountants and other
representatives thereof (collectively, the "Ford Indemnitees") from and against
any damages, liabilities, obligations, losses, investigation and remediation of
Environmental Claims, penalties, claims, actions, disputes or settlements
(collectively, "Losses"),
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arising out of or resulting from or in connection with (i) any Visteon
Liabilities or other obligations or liabilities assumed by Visteon or any
entity controlled by Visteon (collectively, the "Visteon Group") pursuant to
this Agreement or any other agreement executed by Visteon or any member of the
Visteon Group in connection with the legal separation of the Visteon Group as
contemplated in this Agreement and the offering and/or distribution of the
shares of Visteon (collectively, the "Separation"), (ii) any failure of any of
the Visteon Group to perform any agreement or covenant contained herein or
therein, (iii) the costs of operating, maintaining and carrying any Restricted
Interests during the Restricted Period (defined below), and (iv) any tax
consequences suffered by the Ford Group as a result of the failure of the
transfer of any Restricted Interests (defined below) to be treated, for U.S.
federal income tax purposes, as transfers to Visteon as of the date on which
Visteon International Holdings, Inc. is transferred to Visteon. Visteon agrees
to reimburse, or cause a member of the Visteon Group to reimburse, each of the
Ford Indemnitees for any reasonable attorneys' fees or any other expenses
reasonably incurred by any of them in connection with investigating and/or
defending any Loss.
(b) Ford agrees to indemnify and save and hold harmless Visteon, all
Visteon Subsidiaries and all Visteon Affiliates, and the officers, directors,
employees, agents, consultants, attorneys, accountants and other
representatives thereof (collectively, the "Visteon Indemnitees") from and
against any Losses, arising out of or resulting from or in connection with (i)
any Retained Liabilities or other obligations or liabilities of Ford or any
entity controlled by Ford (collectively, the "Ford Group") not assumed by
Visteon or any member of the Visteon Group pursuant to the Agreement or any
other agreement executed by Visteon or any member of the Visteon Group in
connection with the Separation, (ii) any Environmental Claims arising from
ownership or operation of the plant in Lansdale, Pennsylvania which has been
shut down by Ford Electronics and Refrigeration LLC, or (iii) any failure of
any of the Ford Group to perform any agreement or covenant contained herein or
therein. Ford agrees to reimburse, or cause a member of the Ford Group to
reimburse, each of the Visteon Indemnitees for any reasonable attorneys' fees
or any other expenses reasonably incurred by any of them in connection with
investigating and/or defending any Loss.
(c) The Ford Indemnitees or the Visteon Indemnitees (in either case,
an "Indemnitee"), as applicable, shall promptly give the party giving the
indemnification (the "Indemnifying Party") written notification of any third
party claim or any other indemnification claim, together with a copy of any
legal pleadings or other written demands from such third party, if applicable;
provided, however, that the failure to give such notice will not relieve an
Indemnifying Party of its obligations hereunder, except to the extent that the
Indemnifying Party is actually and materially prejudiced by such failure to
give notice. In particular, in case of any investigation or audit, the
Indemnitees shall inform the Indemnifying Party at the beginning of such
investigation or audit, to the extent practical, so that the Indemnifying Party
may participate therein.
(d) Except where a Ford Indemnitee has reserved or been given the
right to manage or defend a Loss or claim in a written instrument signed by
Visteon (or other member of the Visteon Group involved in such Loss or claim),
Visteon shall be entitled, at its own expense, to conduct the defense of any
third party claim with counsel of its own choice. However, the respective
12
Ford Indemnitees shall always be entitled to participate in such defense with
counsel of their own choice and at their own expense and Visteon will cooperate
with the Ford Indemnitees and will consult with the Ford Indemnitees (and give
reasonable consideration to all proposals and suggestions made by the Ford
Indemnitees in connection with all material matters arising in the conduct of
such defense). The Ford Indemnitees shall comply with Visteon's instructions in
the defense unless the Ford Indemnitees believe the instruction to be
unreasonable. The Ford Indemnitees will use reasonable efforts to mitigate the
amount of any Losses that may give rise to indemnification hereunder. In the
event the Ford Indemnitees have the right to manage or defend the Loss, the
involved member of the Visteon Group shall always be entitled to participate in
such defense with counsel of its own choice and at its own expense and the Ford
Indemnitees will cooperate with the Visteon Group and will consult with the
Visteon Group (and give reasonable consideration to all proposals and
suggestions made by the Visteon Group) in connection with all material matters
arising in the management of such Loss or conduct of such defense.
(e) The Visteon Group may not settle any other third party claims
covered by this Section without the prior written consent of the Ford
Indemnitees involved therein and the Ford Group may not settle any other third
party claims covered by this Section without the prior written consent of the
Visteon Indemnitees involved therein; except, in either case, if such
settlement is solely for money damages and the applicable Indemnitees are
reasonably satisfied that the responsible party will directly pay such amount
in full.
(f) For tax purposes, the parties agree to treat any payment pursuant
to this Section as a capital contribution by Ford to Visteon or a distribution
by Visteon to Ford made in the last taxable period beginning before the
Distribution and, accordingly, as not includible in the taxable income of the
recipient or deductible by the payor.
(g) A party's liability with respect to any Loss for which an
Indemnitee actually recovered amounts from third parties (including, without
limitation, proceeds under any policy of insurance available for the purpose)
shall be reduced to the extent of the amounts actually recovered. A party's
Loss shall not include any consequential damages or lost profits that may be
suffered by such party. The parties will also take into account the time cost
of money (using the then-current LIBOR, or any replacement index, as the
applicable rate) in determining amount of the Loss suffered by the any
Indemnitee.
(h) The amount of any Loss for which indemnification is provided under
this Agreement shall be first reduced by the tax benefit (determined in the
reasonable judgment of the Indemnitee) to any Indemnitee of the applicable loss
item, and such net loss amount shall then be increased to take account of the
net tax cost, including interest and penalties (the "Tax Cost"), if any,
incurred by an Indemnitee arising from the receipt or accrual of an indemnity
payment hereunder (grossed up for such increase). The computation of such Tax
Cost shall reflect the hypothetical tax consequences of the receipt or accrual
of any indemnity payment, defined using the maximum statutory rate (or rates,
in the case of an item that affects more than one tax) applicable to the
Indemnitee for the relevant taxable periods, and reflecting, for example, the
effect of the deductions available for interest paid or accrued and for taxes
such as state and local
13
income taxes. Any indemnity payment hereunder shall initially be made without
regard to this paragraph (h) and shall be increased or reduced to reflect any
such Tax Cost (including gross-up) only after the Indemnitee has actually
realized or received such cost. The amount of any Tax Cost payment hereunder
shall be adjusted to reflect any final determination (which shall include the
execution of Form 870-AD or successor form) with respect to the Indemnitee's
liability for taxes, and payments between Ford and Visteon to reflect such
adjustment shall be made if necessary.
(i) Ford has the right to offset any amounts owed by Visteon, any
Visteon Subsidiary or any Visteon Affiliate to any member of the Ford Group
against any amounts owed by Ford to Visteon pursuant to this Section 7. Visteon
has the right to offset any amounts owed by Ford, any Ford Subsidiary or any
Ford Affiliate to any member of the Visteon Group against any amounts owed by
Visteon to Ford pursuant to this Section 7.
(j) For purposes of this Agreement, the term "controls" or
"controlled" means the possession, directly or indirectly, of the power to
direct or cause management to direct the policies of an entity, whether through
the ownership of equity, by contract or otherwise. "Visteon Subsidiary" means
any entity that is or would be a subsidiary of Visteon after the completion of
the transactions described in Section 1 or described on Exhibits 2(a), 2(b) or
2(c). "Visteon Affiliate" means any entity that is or would be an Affiliate of
Visteon after the completion of the transactions described in Section 1 or
described on Exhibits 2(a), 2(b) or 2(c). "Ford Subsidiary" means any
Subsidiary of Ford, other than Visteon or a Visteon Subsidiary. "Ford
Affiliate" means any Affiliate of Ford other than a Visteon Affiliate.
8. FURTHER ASSURANCES/EFFECT OF ASSIGNMENTS.
(a) Each party shall execute and deliver to the other such
undertakings, assumption agreements, assignments, deeds, leases, bills of sale,
stock certificates, endorsements, notices, consents and other instruments as
shall be necessary or appropriate to transfer, convey or assign the those
properties, assets and interests of the Business as are described in Sections 1
and 2 hereof to be transferred to Visteon or any Visteon Subsidiary and for
Visteon to carry out and perform its obligations under this Agreement. Further,
the parties agree that they shall undertake such further actions, consistent
with the terms of this Agreement and the Ancillary Agreements, as may be
reasonably necessary to assure that Visteon has access to the assets and
services needed to conduct the Business in substantially the same manner as
conducted on the US Transfer Date, subject to the time limitations in the
Master Separation Agreement or other Ancillary Agreement for transitional
services. If any assets are transferred to Visteon as part of the Separation
which are not part of the Visteon Assets described herein, then Visteon will
reconvey such assets to Ford, at the request and expense of Ford.
(b) To the extent that any interest in the shares, equity, interests,
contracts, lease permits, or other assets, properties, rights, or interests
comprising a part of the Transfer is not capable of being assigned,
transferred, or conveyed without the consent, waiver, or authorization of a
third party to such transfer or
14
conveyance, or if an attempted assignment, transfer, or conveyance would
constitute a breach of any of the contracts, lease permits, or other assets,
properties, rights, or interests, or a violation of any law, statute, decree,
rule, regulation, or other governmental edict or is not immediately
practicable, then this Agreement shall not constitute an assignment, transfer,
or conveyance of such interest, or an attempted assignment, transfer, or
conveyance of such interest (collectively, the "Restricted Interests"). The
entire beneficial interest in any asset or entity subject to a restriction as
described above, and any other interest in such asset or entity, which are
transferable notwithstanding such restriction, shall be deemed transferred. To
the extent that the consents, waivers, and authorizations referred to above are
not obtained by Ford or Visteon, or until the impracticalities of transfer
referred to therein are resolved to Visteon's reasonable satisfaction, Ford
shall use commercially reasonable efforts, at the expense of Visteon to (i)
provide to Visteon the benefits and burdens of any Restricted Interests
(including, without limitation, the benefit of all voting rights related to any
Restricted Entity, as defined below), and (ii) enforce, at the request of
Visteon for the account of Visteon, any rights of Ford arising from any
Restricted Interests (including the right to elect to terminate such Restricted
Interest in accordance with the terms thereof upon the advice of Visteon). In
addition, from the time during the period commencing on the latest date such
Restricted Interest was to have been transferred under the terms of this
Agreement and terminating at the close of business on the date such Restricted
Interests are legally transferred (the "Restricted Period"), Ford will give
Visteon exclusive rights to manage the Restricted Interests (including the
right to run operations without consultation with Ford) until such time as the
Restricted Interests are legally transferred. In the event that prior to the
transfer of a Restricted Interest, the legal holder of such Restricted Interest
is the subject of any bankruptcy action, assignment for the benefit of
creditors or other insolvency proceeding, then such Restricted Interest will be
deemed to be legally transferred immediately prior to the onset of such
proceeding, regardless of any restrictions.
(c) In the event that a Restricted Interest applies to the transfer of
Ford's or a Ford Subsidiary's interest in a legal entity ("Restricted Entity"),
then during the Restricted Period, if the Restricted Entity makes any
distributions to Ford or a Ford Subsidiary (collectively, the "Ford Entity")
with respect to profits, or in liquidation or otherwise, whether in cash or in
kind, the Ford Entity shall (i) within 60 days following receipt of the
distribution, remit the amount of any such cash distributions by wire transfer
in the currency in which such distribution was received to an account
designated by Visteon, and (ii) with respect to any in-kind distributions, take
all steps reasonably necessary to cause the transfer, by no later than 60 days
following the date of such distribution to the Ford Entity, of all of Ford's
right and title to and interest in each such distribution to Visteon. Visteon
shall bear the costs and expenses incurred in connection with the transfer of
such distributions. In the event that, at any time during the Restricted
Period, (I) the Ford Entity is obligated to make a capital contribution
(whether in cash or in kind) with respect to, or other payment arising out of
its ownership of, the Restricted Entity, or (II) any indemnification obligation
of Visteon becomes payable because of its management of the Restricted Entity,
Visteon shall remit the amount of any such capital contribution or
indemnification obligation by wire transfer to an account designated by Ford
within 60 days following receipt by Visteon of notice of such obligation from
Ford. In the event that any obligation of the Ford Entity arises hereunder with
respect to an in-kind capital contribution by the Ford Entity, the amount to be
remitted by Visteon hereunder with respect to such capital
15
contribution shall equal the fair market value of such in-kind contribution,
and, notwithstanding the foregoing, shall, in the event the parties are unable
to agree on the fair market value of the contribution, be remitted within 30
days following the issuance of an appraisal by the independent appraiser
mutually agreeable by Ford and Visteon.
9. EMPLOYEES.
It is contemplated that certain employees of Ford assigned to the
Business shall become employees of Visteon. The transition of such employees to
Visteon is provided for in the Employee Transition Agreement. In addition, Ford
will provide certain other employees to Visteon under the terms of the Hourly
Employee Assignment Agreement.
10. MISCELLANEOUS.
(a) This Agreement, including all Exhibits and Schedules attached
hereto, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior written and oral and all
contemporaneous oral agreements and understandings with respect to the subject
matter hereof. The covenants, representations, and indemnities of the parties
herein shall survive the closing and the transfer of the Visteon Assets, and
continue in full force and effect.
(b) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Michigan.
(c) This Agreement is for the sole benefit of the Parties hereto and
no third party may claim any right, or enforce any obligation of the Parties,
hereunder.
(d) All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given when delivered in person, by fax
with confirmation of receipt, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges prepaid), or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties as follows:
If to Ford:
Ford Motor Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Secretary
Fax: (000) 000-0000
If to Visteon:
Visteon Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxxx, XX
16
Attention: General Counsel
Fax: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Any notice or communication delivered in person shall be deemed effective on
delivery. Any notice or communication sent by fax or by overnight courier shall
be deemed effective on the next business day. Any notice or communication sent
by registered or certified mail shall be deemed effective on the fifth business
day after such notice or communication was mailed.
(e) This Agreement shall be binding upon and inure to the benefit of
each party hereto and the respective successors and assignees of the parties.
In no event will a party be released from their indemnity obligations without
the written consent of the other party.
(f) If a dispute arises between the Parties relating to this
Agreement, the following procedure shall be implemented except that either
Party may seek injunctive relief from a court where appropriate in order to
maintain the status quo while this procedure is being followed:
(i) The Parties shall hold a meeting promptly, attended by
persons with decision-making authority regarding the
dispute, to attempt in good faith to negotiate a
resolution of the dispute; provided, however, that no
such meeting shall be deemed to vitiate or reduce the
obligations and liabilities of the Parties or be deemed
a waiver by a party hereto of any remedies to which
such Party would otherwise be entitled.
(ii) If within thirty (30) days after such meeting, the
Parties have not succeeded in negotiating a resolution
of the dispute, they agree to submit the dispute to
mediation in accordance with the then-current Model
Procedure for Mediation of Business Disputes of the CPR
Institute for Dispute Resolution ("CPR") and to bear
equally the costs of the mediation. The Parties will
jointly appoint a mutually acceptable mediator, seeking
assistance in such regard from the CPR if they have
been unable to agree upon such appointment within
twenty (20) days from the conclusion of the negotiation
period.
(iii) The Parties agree to participate in good faith in the
mediation and negotiations related thereto for a period
of thirty (30) days. If the Parties are not successful
in resolving the dispute through the mediation, then
the Parties agree to submit the matter to binding
arbitration in accordance with the CPR Rules for
Non-Administered Arbitration, by a sole arbitrator.
(iv) Mediation or arbitration shall take place in the City of
Dearborn, Michigan. Equitable remedies shall be
available in any arbitration. Punitive or exemplary
damages shall not be awarded. This clause is subject to
the Federal Arbitration Act, 9 U.S.C.A. Section 1 et
seq., or comparable
17
legislation in non-U.S. jurisdictions, and judgment upon
the award rendered by the arbitrator, if any, may be
entered by any court having jurisdiction thereof.
(g) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the fullest extent
possible.
(h) No failure or delay on the part of any party hereto in the
exercise of any right hereunder shall impair such right or be construed to be a
waiver of agreement herein, nor shall any single or partial exercise of any
such right preclude other or further exercise thereof or of any other right.
All rights and remedies existing under this Agreement are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
(i) The descriptive headings herein are for reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
( j) No change or amendment will be made to this Agreement except by
an instrument in writing signed on behalf of each of the parties to such
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Master
Transfer Agreement to be executed by their fully authorized representatives as
of the day and year first above written.
VISTEON CORPORATION
By:
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
FORD MOTOR COMPANY
By:
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
DEFINED TERMS
Affiliate Recitals
Ancillary Agreements Recitals
ATT Lease Sec. 6(e)
Balance Sheet Sec. 1(c)
Business Recitals
Code Recitals
Controls Sec. 7(j)
CPR Sec. 10(f)(i)
Distribution Recitals
Environmental Claims Sec. 4(b)(iii)
Environmental Law Sec. 4(b)(iii)
FGTI Recitals
Ford Introduction
Ford Affiliate Sec. 7(j)
Ford Entity Sec. 8(c)
Ford Group Sec. 7(b)
Ford Guaranty Sec. 6(a)
Ford Indemnitees Sec. 7(a)
Ford Subsidiary Sec. 7(j)
Fuchang Ex. 2(a), Sec. (xii)
Fu Hua Ex. 2(b), Sec. (vii)
Hazardous Substance Sec. 4(b)(iii)
Indemnitee Sec. 7(c)
Indemnifying Party Sec. 7(c)
IPO Recitals
Losses Sec. 7(a)
Monroe Facility Sec. 6(e)
Monroe Press Sec. 6(e)
Retained Liabilities Sec. 5(a)
Restricted Entity Sec. 8(c)
Restricted Interests Sec. 8(b)
Restricted Period Sec. 8(b)
Separation Sec. 7(a)
Subsidiary Recitals
Subsidiary Transfer Date Ex. 1(a), Sec. (i)
Tax Cost Sec. 7(h)
Transfer Recitals
UARCO Ex. 2(a), Sec. (C)(ix)
US Transfer Date Sec. 1(c)
VDH Ex. 2(a), Sec. (b)(v)
VGTI Recitals
VIHI Ex. 1(a), Sec. (i)
Visteon Introduction
Visteon Affiliate Sec. 7(j)
Visteon Assets Sec. 1
Visteon Group Sec. 7(a)
Visteon Indemnitees Sec. 7(b)
Visteon Liabilities Sec. 4(a)
Visteon Products Sec. 4(b)(i)
Visteon Product Claims Sec. 4(b)(i)
Visteon Subsidiary Sec. 7(j)
VPCSI Ex. 2(a), Sec. (A)(vi)
Xxx Xxxx Ex. 2(a), Sec. (C)(viii)
