EXHIBIT 10.3
FIRST AMENDMENT AND WAIVER
FIRST AMENDMENT AND WAIVER, dated as of June 13, 2006 (this
"Amendment"), to the SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
January 9, 2006 (as amended, supplemented or otherwise modified, the "Credit
Agreement"), among VISTEON CORPORATION (the "Company"), the several banks and
other financial institutions or entities from time to time parties to the Credit
Agreement (the "Banks"), CITICORP USA, INC., as syndication agent (in such
capacity, the "Syndication Agent"), JPMORGAN CHASE BANK, N.A., as administrative
agent (in such capacity, the "Administrative Agent"), and X.X. XXXXXX SECURITIES
INC. and CITIGROUP GLOBAL MARKETS INC., as joint lead arrangers and joint
bookrunners (in such capacities, the "Joint Lead Arrangers").
WITNESSETH:
WHEREAS, the Company, the Banks, the Administrative Agent, the
Syndication Agent and the Joint Lead Arrangers are parties to the Credit
Agreement;
WHEREAS, the Company is planning on entering into a new term loan
agreement in an aggregate amount equal to $800,000,000 (the "New Term Loan
Agreement") in order to refinance the Term Loans and a portion of the Revolving
Commitments (in each case, as defined in the Credit Agreement) and to refinance
the Amended and Restated Five-Year Term Loan Credit Agreement, dated as of June
24, 2005 (as amended, supplemented or otherwise modified, the "Five-Year Term
Loan Agreement") among the Company, Oasis Holdings Statutory Trust, the several
banks and financial institutions or entities from time to time parties thereto,
the Syndication Agent, the Administrative Agent and the Lead Arrangers;
WHEREAS, subsequent to entering into the New Term Loan Agreement, the
Company is planning on entering into an asset based revolving credit facility
(the "Proposed ABL Financing") and, through one or more of its foreign
subsidiaries organized under the laws of one or more jurisdictions in Europe, a
receivables financing (the "Proposed European Financing");
WHEREAS, upon the effectiveness of the Proposed ABL Facility, the
Company shall terminate the remaining Revolving Commitments under the Credit
Agreement;
WHEREAS, in connection with the refinancing referred to in the second
recital above, the Company has requested that the Banks amend and waive certain
provisions of the Credit Agreement in the manner provided for herein;
WHEREAS, the Banks have consented to the requested amendments and
waivers but only on the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto hereby agree as follows:
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SECTION 1. DEFINED TERMS. Terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. AMENDMENT TO SECTION 1 (DEFINITIONS). (a) Section 1 of the
Credit Agreement is hereby amended by deleting the defined term "Intercreditor
Agreement" and inserting the following in appropriate alphabetical order:
"Intercreditor Agreement" means the Intercreditor Agreement dated as
of June 13, 2006 among the Collateral Agent, the Administrative Agent, the
Company, each Subsidiary Guarantor, the administrative agent under the New Term
Loan Agreement and each other party from time to time party thereto, as the same
may be amended from time to time.
"Original Intercreditor Agreement" means the Intercreditor Agreement
dated as of June 24, 2005 among JPMorgan Chase Bank, N.A., as Collateral Agent,
the Company, each Subsidiary Guarantor, the Administrative Agent and the
administrative agents under each of the Short-Term Credit Agreement and the
Amended and Restated Five-Year Term Loan Agreement, as the same may be amended
from time to time.
"TMD Entities" means Toledo Mold & Die, Inc., any Subsidiary thereof
and any special purpose holding company created for the principal purpose of
holding 100% of the Capital Stock of Toledo Mold & Die, Inc.
(b) The definition of "Asset Sale" in Section 1 of the Credit
Agreement is hereby amended by adding "and (h)" between items (g) and (j) in the
first parenthetical thereof.
(c) The definition of "Excluded Entities" in Section 1 of the Credit
Agreement is hereby amended by deleting "Toledo Mold & Die, Inc." from such
definition and replacing it with "the TMD Entities."
(d) Section 1 of the Credit Agreement is hereby further amended by
adding the following sentence at the end thereof: "Defined terms contained in
the Original Intercreditor Agreement immediately prior to its termination which
are used herein are hereby incorporated in their entirety."
SECTION 3. AMENDMENT TO SECTION 2.13 (OPTIONAL AND MANDATORY
PREPAYMENTS; REIMBURSEMENTS FOR CERTAIN COSTS). Section 2.13 of the Credit
Agreement is hereby amended by deleting Section 2.13(d) and Section 2.13(f) and
inserting in lieu thereof "Reserved."
SECTION 4. AMENDMENT TO SECTION 7.9 (ADDITIONAL COLLATERAL, ETC.).
Section 7.9(c) is hereby amended by adding "(other than the TMD Entities)" after
the phrase "and with respect to any Excluded Entity" in the lead in to such
Section 7.9(c).
SECTION 5. NEW TERM LOAN AGREEMENT. Notwithstanding the terms and
conditions of the Credit Agreement (including, but not limited to, Sections
7A.2, 7A.3, 7A.14, 7A.15 and 7A.17 therein), each other Loan Document and, in
each case, any applicable
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provisions therein, the Banks hereby agree that the Company and its Subsidiaries
are permitted to enter into, borrow and comply with all obligations under, and
grant Liens in connection with, the New Term Loan Agreement and the other Loan
Documents (as defined in the New Term Loan Agreement) (it being understood that
the collateral securing the obligations under the New Term Loan Agreement shall
be as described in the Intercreditor Agreement).
SECTION 6. REPURCHASE OF 2010 NOTES ISSUED UNDER EXISTING INDENTURE.
Notwithstanding the terms and conditions of Section 7A.9 of the Credit
Agreement, the Banks hereby agree that the Company is permitted to repurchase a
portion of the 8.25% notes due 2010 issued pursuant to the Existing Indenture in
an aggregate principal amount not to exceed $200,000,000.
SECTION 7. WAIVERS. (a) Each of the Banks party hereto hereby waives
the provisions of Section 2.13(h) and Section 2.15(a) of the Credit Agreement to
the extent such Sections require that the Company apply the Net Cash Proceeds
received from the incurrence of Indebtedness under the New Term Loan Agreement
to the reduction of commitments and prepayment of loans outstanding under the
Credit Agreement and to the prepayment of loans outstanding under the Five-Year
Term Loan Agreement on a pro rata basis; provided that the Company shall apply
such Net Cash Proceeds so that the Term Loans under the Credit Agreement and the
loans under the Five-Year Term Loan Agreement shall be paid in full; and
provided further that the Company hereby agrees that, upon the effectiveness of
this Amendment, the Revolving Commitments under the Credit Agreement are hereby
deemed to be permanently reduced to $500,000,000.
(b) Solely in connection with the prepayments to be made with the Net
Cash Proceeds from the incurrence of Indebtedness under the New Term Loan
Agreement, each of the Banks party hereto hereby waives the provision of Section
2.12(b) to the extent such Section requires that the prepayment notice to be
delivered by the Company to the Administrative Agent be irrevocable (it being
understood that such notice may be conditional so long as it is conditioned only
upon the closing of the New Term Loan Agreement and the effectiveness of this
Amendment).
SECTION 8. AMENDMENTS TO GUARANTEE AND COLLATERAL AGREEMENT. (a) The
Guarantee and Collateral Agreement is hereby amended so that any defined terms
contained in the Original Intercreditor Agreement immediately prior to its
termination in connection with this Amendment which are used in the Guarantee
and Collateral Agreement are hereby incorporated in their entirety into Section
1 of the Guarantee and Collateral Agreement in appropriate alphabetical order.
(b) The Guarantee and Collateral Agreement is hereby further amended
by deleting the reference to "Section 2.4 of the Intercreditor Agreement" in
Section 3.3 thereof and inserting in lieu thereof "Section 9.14 of the
Intercreditor Agreement."
SECTION 9. INTERCREDITOR AGREEMENT. Each Bank acknowledges that it has
received and reviewed a copy of the Intercreditor Agreement (as defined in the
Credit Agreement after giving effect to this Amendment) and has agreed to the
terms thereof. Each Bank hereby
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authorizes and directs JPMorgan Chase Bank, N.A. (in its capacity as
Administrative Agent) to enter into the Intercreditor Agreement on behalf of the
Banks.
SECTION 10. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall become effective on the date (the "First Amendment Effective
Date") on which the following conditions precedent shall have been satisfied (or
waived):
(a) First Amendment to Credit Agreement. The Administrative Agent
shall have received counterparts of this Amendment, duly executed and delivered
by the Company and the Required Banks.
(b) Fees. All expenses required to be paid to the Administrative Agent
on or before the First Amendment Effective Date for which invoices have been
presented shall have been paid.
(c) Term Loan Proceeds. The Net Cash Proceeds from the incurrence of
Indebtedness under the New Term Loan Agreement shall be applied to repay in full
the Term Loans under the Credit Agreement and the loans under the Five-Year Term
Loan Agreement and, upon the effectiveness of this Amendment, the Revolving
Commitments under the Credit Agreement shall be permanently reduced to
$500,000,000.
(d) Original Intercreditor Agreement. The Original Intercreditor
Agreement shall have been terminated; provided that it is understood and agreed
that JPMorgan Chase Bank, N.A. shall continue to act in its capacity as
Collateral Agent under the Collateral Agency provisions as set forth in the
Original Intercreditor Agreement.
(e) New Intercreditor Agreement. The Administrative Agent shall have
received counterparts of the Intercreditor Agreement dated as of the date
hereof, duly executed and delivered by the Company, each Subsidiary Guarantor
and the administrative agent under the New Term Loan Agreement.
SECTION 11. REPRESENTATIONS AND WARRANTIES.
(a) No Default. No Default or Event of Default shall have occurred and
be continuing on the First Amendment Effective Date or after giving effect to
the transactions contemplated herein.
(b) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of the First Amendment
Effective Date (after giving effect hereto) as if made on and as of such date
(other than representations and warranties which relate to an earlier date (in
which case such representations and warranties shall be true and accurate in all
material respects on and as of such earlier date)).
SECTION 12. PAYMENT OF EXPENSES. The Company agrees to pay or
reimburse the Administrative Agent for all of its reasonable documented
out-of-pocket costs and expenses incurred in connection with this Amendment, any
other documents prepared in connection
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herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
SECTION 13. CONTINUING EFFECT OF THE CREDIT AGREEMENT. This Amendment
shall not constitute an amendment or waiver of any provision of the Credit
Agreement not expressly referred to herein and shall not be construed as an
amendment, waiver or consent to any further or future action on the part of the
Loan Parties that would require an amendment, waiver or consent of the Banks or
Administrative Agent. Except as expressly amended hereby, the provisions of the
Credit Agreement are and shall remain in full force and effect. Any reference to
the "Agreement" in the Loan Documents or any related documents shall be deemed
to be a reference to the Credit Agreement as amended by this Amendment.
SECTION 14. COUNTERPARTS. This Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts (including by
facsimile or PDF delivered by electronic mail), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
SECTION 15. SEVERABILITY. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 16. INTEGRATION. This Amendment and the other Loan Documents
represent the agreement of the Loan Parties, the Administrative Agent and the
Banks with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Bank relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
SECTION 17. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 18. TERMINATION OF ORIGINAL INTERCREDITOR AGREEMENT. The
Intercreditor Agreement dated as of June 24, 2005 among JPMorgan Chase Bank as
the Bank Facilities Representative and as Collateral Agent, the Company and each
of the other Loan Parties party thereto is hereby terminated in all respects;
provided that it is understood and agreed that JPMorgan Chase Bank, N.A. shall
continue to act in its capacity as Collateral Agent under the Collateral Agency
provisions as set forth in the such Intercreditor Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
VISTEON CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
JPMORGAN CHASE BANK, N.A. as
Administrative Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CITICORP USA, INC., as Syndication
Agent and as a Bank
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Director
Acknowledged and agreed to as of
the date first written above by:
JPMORGAN CHASE BANK, N.A.
as Collateral Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Signature page to the First Amendment and Waiver
