The addressees
listed in Annex 1
(each, an Addressee )
Re: Visteon
securitisation programme – conditional waiver
Reference is
made to the securitisation programme of the Visteon Group and, in
particular, to the Master Definitions and Framework Deed entered
into on 14 August 2006 between, among others, the Addressees,
Citicorp USA, Inc. and Citibank International PLC, as amended and
restated by a deed of amendment and restatement (the Deed of
Amendment ) dated 29 October 2008 (the Framework
Deed ) and to the Master French Definitions Agreement dated
13 November 2006, between, among others, the Addresses,
Citicorp USA, Inc. and France Titrisation, as amended on 29
October 2008 (the French Master Definitions
Agreement ).
Capitalised
terms used but not defined in this letter shall have the meaning
ascribed to them in the Framework Deed or, if not defined in the
Framework Deed, in the French Master Definitions
Agreement.
Pursuant to
clause 4.4(d)(i) of the Master Receivables Purchase and Servicing
Agreement, the Parent is required to deliver, by no later than 31
March 2009, to the Funding Agent, the Master Purchaser and the
Security Trustee, a balance sheet and related audited consolidated
statements of operations (which include a form 10k) and cash flows,
in respect of its financial year ending on 31 December 2008,
without going concern or like qualification or a qualification
arising out of the scope of the audit by PricewaterhouseCoopers
LLP.
You have
requested that we agree to a conditional waiver in respect of the
following events:
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(i)
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said form 10k is qualified by a
qualification of the types referred to above;
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(ii)
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said form 10k is not delivered by 31
March 2009,
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You have also
requested that we agree to a conditional waiver of any right that
we might have to determine that there has been a Material Adverse
Change solely as a result of the diminution of the projected
cashflow and income of the Parent shown in the projections
delivered by the Parent to the Funding Agent, the Master Purchaser
and the Security Trustee pursuant to clause 4.4(d)(v) of the Master
Receivables Purchase and Servicing Agreement, on 13 March 2009
(the Projections ).
In
consideration for each Addressee agreeing to the terms set out in
paragraph 1 below, each of the signatories to this letter hereby
agrees to a conditional waiver of each Event and of any right that
it might have to determine that there has been a Material Adverse
Change solely on the basis of the Projections (each, a
Waiver ) on the terms and subject to the conditions
set out in this letter.
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1.
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Notwithstanding any provisions of
the Transaction Documents to the contrary:
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(i)
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with effect from the date hereof,
the Variable Funding Facility Limit shall be equal to USD
200 million;
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(ii)
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in
respect of the Interest Period commencing on or immediately after
the date of this letter, and of any Interest Period and Short
Interest Period thereafter, the Reference Rate shall (subject to
Clause 20.4 of the Framework Deed) be equal:
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(1)
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in
respect of the USD Notes, the aggregate of 4.25 per cent per annum
and USD LIBOR;
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(2)
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in
respect of the EUR Notes, the aggregate of 4.25 per cent. per annum
and EURIBOR; and
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(3)
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in
respect of the GBP Notes, the aggregate of 4.25 per cent. per annum
and GBP LIBOR;
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(iii)
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with effect from the date hereof,
the Commitment Fee shall be defined as a fee payable monthly in
arrears on each Monthly Settlement Date in USD to the Funding Agent
for the account of the Lenders calculated on a daily basis in an
amount equal to 0.75 per cent. per annum of the amount by which the
Variable Funding Facility Limit exceeds the USD Equivalent of the
aggregate Principal Amount Outstanding of all Notes from time to
time;
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(iv)
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with effect from the date hereof, on
each date on which the NRPB Before Excess Concentrations and
Exchange Rate Protection falls to be calculated, an additional
reserve will be deducted pursuant to paragraph (j) of the
definition of “NRPB Before Excess Concentrations and Exchange
Rate Protection” as set out in the Framework Deed, in an
amount equal to the USD Equivalent of the amount by which the
aggregate Outstanding Balance of the Purchased Receivables owed by
an Obligor the Debt Rating of which is BBB- and Baa3 (whether or
not on negative watch) or better exceeds 35% of the Net Receivables
Pool Balance;
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(v)
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the
reserve deducted in accordance with the letter dated 9
March 2009 pursuant to paragraph (j) of the definition of
“NRPB Before Excess Concentrations and Exchange Rate
Protection” as set out in the Framework Deed, will keep on
being deducted on each date on which the NRPB Before Excess
Concentrations and Exchange Rate Protection falls to be calculated,
in an amount equal to:
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(1)
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until 31 May 2009 (excluded):
(a) the USD Equivalent of the aggregate Outstanding Balances
of all Purchased Receivables originated by Visteon Deutschland
GmbH; less (b) the USD Equivalent of the aggregate Outstanding
Balances of each Purchased Receivable originated by Visteon
Deutschland GmbH in respect of which the relevant Obligor has been
notified to make payments into new accounts in the name of the
Master Purchaser or the FCC (as applicable) and the Collateral
Monitoring Agent has received
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Page 2
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satisfactory evidence that such
payments are being or will be made to such accounts. This will be
satisfied either by evidence that the relevant Obligor has made at
least one payment to the account of the Master Purchaser or the FCC
(as applicable) in respect of that Purchased Receivable or a
Purchased Receivable owed under the same Invoice or receipt of
written confirmation from the relevant Obligor that it will make
all payments in respect of all Purchased Receivables owed by it to
the account of the Master Purchaser or the FCC (as applicable);
and
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(2)
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with effect from 31 May 2009
(included): (a) the USD Equivalent of the aggregate
Outstanding Balance of all Purchased Receivables (regardless as to
which Seller has originated them); less (b) the USD Equivalent
of the aggregate Outstanding Balances of each Purchased Receivable
in respect of which the relevant Obligor has been notified to make
payments into new accounts in the name of the Master Purchaser or
the FCC (as applicable) and the Collateral Monitoring Agent has
received satisfactory evidence that such payments are being or will
be made to such accounts. This will be satisfied either by evidence
that the relevant Obligor has made at least one payment to the
account of the Master Purchaser or the FCC (as applicable) in
respect of that Purchased Receivable or a Purchased Receivable owed
under the same Invoice or receipt of written confirmation from the
relevant Obligor that it will make all payments in respect of all
Purchased Receivables owed by it to the account of the Master
Purchaser or the FCC (as applicable).
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2.
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No
Waiver shall become effective until and unless:
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(a)
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Visteon Corporation has paid to
Citicorp USA, Inc. the waiver arrangement fees agreed in the
separate fee letter dated 26 March 2009; and
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(b)
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[Visteon Corporation] has paid to
each Lender which has agreed to this conditional waiver a waiver
fee equal to 0.25% of the product of its Commitment Proportion by
USD 325 million.
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3.
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Each Waiver is further subject to
the conditions subsequent that:
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(a)
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by
no later than 30 April 2009, the Parent has delivered to each
of the Funding Agent, the Master Purchaser and the Security
Trustee, form 10k in relation to its financial year ending on 31
December 2008;
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(b)
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no
waiver granted to the Parent in respect of the US ABL Credit
Agreement and the Term Loan dated 10 April 2007, is revoked or
terminated;
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(c)
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by
no later than 30 April 2009, a daily transfer from each
Deposit Account to the new accounts of the Master Purchaser or the
FCC (as applicable) referred to in paragraphs 1(v)(1) and 1(v)(2)
shall be put in place by each relevant account holder (provided
that if the holder of the relevant Deposit Account demonstrates
that it has taken all necessary steps, reasonably in advance, to
have this daily transfer in place prior to 30 April 2009, but
this transfer is not effective on 30 April 2009, then the
Collateral Monitoring Agent may at its discretion decide to
postpone the date for the satisfaction of this condition subsequent
to 10 May 2009) ;
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(d)
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by
no later than 31 May 2009, the Addressees shall have entered
into such documents and amendments to the existing Transaction
Documents as are necessary to implement the principles set out in
the term-sheet attached as Annex 2 and the conditions
precedent set out in such documentation shall have been fulfilled,
in each case in a manner satisfactory to each of the Funding Agent,
the Master Purchaser, the Collateral Monitoring Agent and the
Security Trustee (acting reasonably and in good faith),
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provided in addition that if the
Addressees have not entered into such documents and amendments by
15 May 2009, an additional reserve of USD 20 million will
be deducted pursuant to paragraph (j) of the definition of
“NRPB Before Excess Concentrations and Exchange Rate
Protection” as set out in the Framework Deed, on each date on
which the NRPB Before Excess Concentrations and Exchange Rate
Protection falls to be calculated and falling between 15
May 2009 (included) and the date on which condition
precedent (d) is fulfilled.
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4.
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Each Waiver shall automatically be
revoked and cease to be of any effect, on 29 June 2009 or on
the earlier date on which any of the conditions subsequent listed
above is not complied with (in each case, the Relevant
Date ), without prejudice to the modifications provided for
in paragraph 1. above which shall remain in full force and
effect.
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5.
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Without prejudice to the rights of
any of the signatories to this letter under the Transaction
Documents, the Sellers undertake, by countersigning this letter, to
pay on demand to each of the Funding Agent, the Collateral
Monitoring Agent, the Master Purchaser and the Security Trustee any
costs, fees and expenses, including without limitation legal fees,
together with such amount as shall represent any value added tax,
sales tax, purchase tax or other similar taxes or duties associated
with such costs fees and expenses (if any) incurred by the Funding
Agent, the Collateral Monitoring Agent, the Master Purchaser or the
Security Trustee (as the case may be) in connection with the
preparation, negotiation and execution of this letter and of any
documents required in connection with the matters set out, and
agreed, in the term sheet attached to this letter and/or in
connection with the enforcement of any such party’s rights
and remedies under this letter.
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6.
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This letter shall not constitute a
waiver of the rights of any party to the Transaction Documents save
as expressly set out herein and shall not prevent any such parties
from exercising any such rights at any time. In particular, this
letter shall not constitute a waiver of any Termination Event,
Potential Termination Event, Cash Control Event, Material Adverse
Ch
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