Attached files
file | filename |
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8-K - FORM 8-K - VISTEON CORP | k49332e8vk.htm |
EX-99.2 - EX-99.2 - VISTEON CORP | k49332exv99w2.htm |
Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
FOR THE DISTRICT OF DELAWARE
) | ||||||
In re:
|
) | Chapter 11 | ||||
) | ||||||
VISTEON
CORPORATION, et
al.,1
|
) ) |
Case No. 09-11786 (CSS) | ||||
) | Jointly Administered | |||||
Debtors.
|
) | |||||
) | ||||||
FOURTH AMENDED JOINT PLAN OF REORGANIZATION
OF VISTEON CORPORATION AND ITS DEBTOR AFFILIATES
PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
OF VISTEON CORPORATION AND ITS DEBTOR AFFILIATES
PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
PACHULSKI STANG ZIEHL & JONES LLP | KIRKLAND & ELLIS LLP | |
Laura Davis Jones (DE Bar No. 2436)
|
James H. M. Sprayregen, P.C. (IL 6190206) | |
James E. ONeill (DE Bar No. 4042)
|
James J. Mazza, Jr. (IL 6275474) | |
Timothy P. Cairns (DE Bar No. 4228)
|
Sienna R. Singer (IL 6287154) | |
919 North Market Street, 17th Floor
|
300 North LaSalle | |
Wilmington, Delaware 19899-8705
|
Chicago, Illinois 60654 | |
Telephone: (302) 652-4100
|
Telephone: (312) 862-2000 | |
Marc Kieselstein, P.C. (IL 6199255) | ||
Brian S. Lennon (NY 4215083) | ||
601 Lexington Avenue | ||
New York, New York 10022-4611 | ||
Telephone: (212) 446-4800 |
Attorneys for the Debtors and Debtors in Possession
Dated: June 14, 2010
Dated: June 14, 2010
1 | The Debtors in these chapter 11 cases, along with the last four digits of each Debtors 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: One Village Center Drive, Van Buren Township, Michigan 48111. |
TABLE OF CONTENTS
Page | ||||||
INTRODUCTION | 5 | |||||
ARTICLE I. DEFINED TERMS AND RULES OF INTERPRETATION | 5 | |||||
A. |
Defined Terms | 5 | ||||
B. |
Rules of Interpretation | 21 | ||||
ARTICLE II. ADMINISTRATIVE AND PRIORITY CLAIMS | 22 | |||||
A. |
Administrative Claims | 22 | ||||
B. |
Professional Claims | 22 | ||||
C. |
DIP Facility Claims | 23 | ||||
D. |
Priority Tax Claims | 23 | ||||
ARTICLE III. CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS | 24 | |||||
A. |
Sub Plans | 24 | ||||
B. |
Classification of Claims and Interests | 24 | ||||
C. |
Treatment of Classes of Claims and Interests | 25 | ||||
D. |
Special Provision Governing Unimpaired Claims | 33 | ||||
ARTICLE IV. PROVISIONS FOR IMPLEMENTATION OF THE PLAN | 33 | |||||
A. |
General Settlement of Claims and Interests | 33 | ||||
B. |
New Visteon Common Stock | 33 | ||||
C. |
Registration Exemptions | 34 | ||||
D. |
Subordination | 34 | ||||
E. |
Vesting of Assets in the Reorganized Debtors | 35 | ||||
F. |
Cancellation of Notes, Instruments, Certificates and Other Documents | 35 | ||||
G. |
Issuance of New Securities; Execution of Plan Documents | 35 | ||||
H. |
Acquisition of Assets Held by Oasis Trust | 35 | ||||
I. |
Post-Confirmation Property Sales | 35 | ||||
J. |
Corporate Action | 36 | ||||
K. |
Certificate of Incorporation and Bylaws | 36 | ||||
L. |
Effectuating Documents, Further Transactions | 36 | ||||
M. |
Section 1146(a) Exemption | 37 | ||||
N. |
Directors and Officers of Reorganized Visteon | 37 | ||||
O. |
Directors and Officers of Reorganized Debtors Other Than Visteon Corporation | 37 | ||||
P. |
Employee Benefits and Incentive Plans | 37 | ||||
Q. |
Employment Agreement & Change in Control Agreements | 38 | ||||
R. |
Intercompany Account Settlement | 38 | ||||
S. |
Preservation of Rights of Action | 39 | ||||
T. |
Restructuring Transactions | 39 | ||||
U. |
Post-Effective Date Financing | 40 | ||||
V. |
Corporate Existence | 40 |
i
TABLE OF CONTENTS (contd)
W. |
Tax Reporting Matters | 41 | ||||
ARTICLE V. RIGHTS OFFERING | 41 | |||||
A. |
Election Form | 41 | ||||
B. |
Issuance of Subscription Rights | 41 | ||||
C. |
Oversubscription Rights | 41 | ||||
D. |
Transfer Restriction | 41 | ||||
E. |
Subscription Period and Mailing | 42 | ||||
F. |
Exercise of Subscription Rights and Oversubscription Rights | 42 | ||||
G. |
Direct Commitment | 43 | ||||
H. |
Backstop Commitment | 43 | ||||
I. |
Debtors Obligations under the Claims Conversion Sub Plan | 43 | ||||
J. |
Issuance of Rights Offering Shares | 43 | ||||
ARTICLE VI. ENTITLEMENT TO AND FUNDING OF CASH AMOUNT RECOVERIES | 44 | |||||
A. |
Entitlement to Cash Amount Recoveries | 44 | ||||
B. |
Source of Cash for Payment of Cash Amount | 44 | ||||
C. |
Transfer of New Visteon Common Stock as a Consequence of Cash Amount Distributions | 44 | ||||
ARTICLE VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES | 44 | |||||
A. |
Rejection of Executory Contracts and Unexpired Leases | 45 | ||||
B. |
Assumption of Executory Contracts and Unexpired Leases | 45 | ||||
C. |
Indemnification Obligations | 46 | ||||
D. |
Insurance Policies | 46 | ||||
E. |
Cure of Defaults for Assumed Executory Contracts and Unexpired Leases | 46 | ||||
F. |
Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases | 48 | ||||
G. |
Claims Based on Rejection of Executory Contracts or Unexpired Leases | 48 | ||||
H. |
Contracts, Intercompany Contracts, and Leases Entered Into After the Petition Date | 48 | ||||
I. |
Reservation of Rights | 48 | ||||
ARTICLE VIII. PROCEDURES FOR RESOLVING DISPUTED CLAIMS AND INTERESTS | 49 | |||||
A. |
Allowance of Claims and Interests | 49 | ||||
B. |
Claims and Interests Administration Responsibilities | 49 | ||||
C. |
Estimation of Claims and Interests | 49 | ||||
D. |
Expungement or Adjustment to Paid, Satisfied, or Superseded Claims and Interests | 49 | ||||
E. |
No Interest | 50 | ||||
F. |
Disallowance of Claims or Interests | 50 | ||||
G. |
Amendments to Claims | 50 | ||||
H. |
No Distributions Pending Allowance | 50 | ||||
I. |
Distributions After Allowance | 51 |
ii
TABLE OF CONTENTS (contd)
ARTICLE IX. PROVISIONS GOVERNING DISTRIBUTIONS | 51 | |||||
A. |
Distributions on Account of Claims Allowed as of the Effective Date | 51 | ||||
B. |
Distributions on Account of Claims Allowed After the Effective Date | 54 | ||||
C. |
Delivery of Distributions | 54 | ||||
D. |
Claims Paid or Payable by Third Parties | 57 | ||||
E. |
Setoffs | 58 | ||||
F. |
Allocation Between Principal and Accrued Interest | 58 | ||||
ARTICLE X. EFFECT OF CONFIRMATION OF THE PLAN | 59 | |||||
A. |
Discharge of Claims and Termination of Interests | 59 | ||||
B. |
Subordinated Claims | 59 | ||||
C. |
Compromise and Settlement of Claims and Controversies | 59 | ||||
D. |
Releases by the Debtors | 60 | ||||
E. |
Releases by Holders of Claims and Interests | 60 | ||||
F. |
Exculpation | 61 | ||||
G. |
Injunction | 61 | ||||
H. |
Protection Against Discriminatory Treatment | 61 | ||||
I. |
Indemnification | 62 | ||||
J. |
Recoupment | 62 | ||||
K. |
Release of Liens | 62 | ||||
L. |
Reimbursement or Contribution | 62 | ||||
ARTICLE XI. CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN | 62 | |||||
A. |
Conditions Precedent to the Effective Date | 62 | ||||
B. |
Waiver of Conditions Precedent | 63 | ||||
C. |
Effect of Non-Occurrence of Conditions to Consummation | 63 | ||||
ARTICLE XII. RETENTION OF JURISDICTION | 64 | |||||
ARTICLE XIII. MISCELLANEOUS PROVISIONS | 66 | |||||
A. |
No Stay of Confirmation Order | 66 | ||||
B. |
Modification of Plan | 66 | ||||
C. |
Revocation or Withdrawal of Plan | 66 | ||||
D. |
Confirmation of the Plan | 67 | ||||
E. |
Additional Documents | 67 | ||||
F. |
Payment of Statutory Fees | 67 | ||||
G. |
Dissolution of Creditors' Committee | 67 | ||||
H. |
Role of the Oversight Committee | 67 | ||||
I. |
Reservation of Rights | 68 | ||||
J. |
Successors and Assigns | 68 | ||||
K. |
Service of Documents | 68 | ||||
L. |
Term of Injunctions or Stays | 70 | ||||
M. |
Entire Agreement | 71 | ||||
N. |
Plan Supplement Exhibits | 71 | ||||
O. |
Severability | 71 |
iii
TABLE OF CONTENTS (contd)
EXHIBIT A Board Selection Term Sheet |
EXHIBIT B Warrant Agreement |
iv
INTRODUCTION2
Visteon Corporation and the other Debtors in the above-captioned Chapter 11 Cases jointly
propose the following Plan. Although proposed jointly for administrative purposes, the Plan
constitutes a separate plan of reorganization for each Debtor for the resolution of outstanding
Claims against, and Interests in, each Debtor pursuant to title 11 of the United States Code, 11
U.S.C. §§ 1011532. Each Debtor is a proponent of the Plan within the meaning of section 1129 of
the Bankruptcy Code. The classifications of Claims and Interests set forth in ARTICLE III hereof
shall be deemed to apply separately with respect to each Plan proposed by each Debtor, as
applicable. The Plan does not contemplate the substantive consolidation of any of the Debtors.
The Plan contemplates Confirmation and Consummation through either of the Rights Offering Sub Plan
or the Claims Conversion Sub Plan.
ARTICLE I.
DEFINED TERMS AND RULES OF INTERPRETATION
A. | Defined Terms |
1. 7.00% Senior Notes: The 7.00% senior notes due March 10, 2014, issued by Visteon
Corporation in the amount of $450,000,000 pursuant to the 7.00% Senior Notes Indenture.
2. 7.00% Senior Notes Claims: The Claims derived from or based upon the 7.00% Senior
Notes Indenture.
3. 7.00% Senior Notes Indenture: That certain supplemental indenture, dated as of
March 10, 2004, by and between Visteon Corporation and J.P. Morgan Trust Company, N.A., as trustee.
4. 8.25% Senior Notes: The 8.25% senior notes due August 1, 2010, issued by Visteon
Corporation in the amount of $700,000,000 pursuant to the 8.25% Senior Notes Indenture.
5. 8.25% Senior Notes Claims: The Claims derived from or based upon the 8.25% Senior
Notes Indenture.
6. 8.25% Senior Notes Indenture: That certain indenture, dated as of June 23, 2000,
by and between Visteon Corporation and Bank One Trust Company, N.A., as trustee, as amended.
7. 12.25% Senior Notes: The 12.25% senior notes due December 31, 2016, issued by
Visteon Corporation in the amount of $206,386,000 pursuant to the 12.25% Senior Notes Indenture.
2 | Capitalized terms used in this Introduction are defined in ARTICLE I herein. |
8. 12.25% Senior Notes Claims: The Claims derived from or based upon the 12.25%
Senior Notes Indenture.
9. 12.25% Senior Note Indenture: 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.
10. ABL Claim: Any Claim derived from or based upon the ABL Facility.
11. ABL Facility: The revolving credit facility set forth in the ABL Facility Credit
Agreement.
12. ABL Facility Administrative Agent: The Bank of New York Mellon, or its successor,
in its capacity as administrative agent under the ABL Facility.
13. ABL Facility Credit Agreement: That certain Credit Agreement, dated August 14,
2006, as amended, supplemented, or modified from time to time, between Visteon Corporation and each
subsidiary of Visteon Corporation party thereto, as borrowers, Ford Motor Company, as sole lender
and swingline lender, and the ABL Facility Administrative Agent.
14. ABL Lender: Ford Motor Company, in its capacity as a lender under the ABL
Facility.
15. Accommodation Agreements: Collectively, (a) that certain Letter Agreement among
the Debtors, a certain non-Debtor Affiliate, and General Motors Company, dated September 15, 2009,
approved by Final Order entered on October 7, 2009 [Docket No. 1102], (b) that certain
Accommodation Agreement, among the Debtors, a certain non-Debtor Affiliate, and Chrysler Group LLC,
dated October 2, 2009, approved by Final Order entered on November 12, 2009 [Docket No. 1305], (c)
that certain Accommodation Agreement, among the Debtors, their non-Debtor Affiliates and
subsidiaries, and Nissan North America, Inc., dated October 22, 2009, approved by Final Order
entered on November 12, 2009 [Docket No. 1307], (d) that certain Accommodation Agreement, by and
between Honda of America Mfg., Inc. and the Debtors, dated November 25, 2009, approved by Final
Order entered on December 10, 2009 [Docket No. 1446], and (e) that certain Facilities and
Accommodation Agreement, among Ford Motor Company, Automotive Components Holdings, LLC, and certain
Debtors and non-Debtor Affiliates, dated December 16, 2009, approved by Final Order entered on
December 10, 2009 [Docket No. 1441].
16. Accredited Investor: As defined in Rule 501 of Regulation D promulgated under the
Securities Act.
17. Ad Hoc Group of Noteholders: As defined in the Equity Commitment Agreement.
18. Administrative Claim: A Claim for costs and expenses of administration pursuant
to sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (a) the
actual and necessary costs and expenses incurred after the Petition Date of preserving the Estates
and operating the businesses of the Debtors; (b) Allowed Professional Claims; (c) the reasonable
6
fees and expenses of the Notes Trustee incurred in connection with the Chapter 11 Cases; and
(d) all fees and charges assessed against the Estates pursuant to section 1930 of chapter 123 of
title 28 of the United States Code.
19. Administrative Claim Bar Date: The deadline for filing requests for payment of
Administrative Claims, which shall be 30 days after the Effective Date, unless otherwise ordered by
the Bankruptcy Court, except with respect to Professional Claims, which shall be subject to the
provisions of ARTICLE II.B.
20. Affiliate: As defined in section 101(2) of the Bankruptcy Code and as pertains to
the Debtors or Reorganized Debtors, as applicable.
21. Allotted Portion: As defined in the Equity Commitment Agreement.
22. Allowed: Except as otherwise provided herein: (a) a Claim or Interest that is
(i) listed in the Schedules as of the Effective Date as not disputed, not contingent, and not
unliquidated, or (ii) evidenced by a valid Proof of Claim, filed by the applicable Bar Date and as
to which the Debtors or other parties in interest have not filed an objection to the allowance
thereof within the applicable period of time fixed by the Plan, the Bankruptcy Code, the Bankruptcy
Rules, or the Bankruptcy Court, or (b) a Claim that is Allowed pursuant to the Plan or any
stipulation approved by, or Final Order of, the Bankruptcy Court.
23. Allowed Senior Notes Claims: Collectively, the Allowed 7.00% Senior Notes Claims,
the Allowed 8.25% Senior Notes Claims, and the Allowed 12.25% Senior Notes Claims.
24. Avoidance Actions: Any and all avoidance, recovery, subordination, or other
actions or remedies that may be brought on behalf of the Debtors or their estates under the
Bankruptcy Code or applicable non-bankruptcy law, including actions or remedies under sections 544,
547, 548, 550, 551, 552, or 553 of the Bankruptcy Code.
25. Backstop Commitment: The obligation of the Investors severally and not jointly,
to purchase, or cause one or more of their affiliates to purchase, on the Effective Date, Rights
Offering Shares that are unsubscribed pursuant to ARTICLE V.F of the Plan in accordance with such
Investors backstop obligations as set forth in the Equity Commitment Agreement.
26. Bankruptcy Code: Title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as
may be amended from time to time.
27. Bankruptcy Court: The United States Bankruptcy Court for the District of Delaware
having jurisdiction over the Chapter 11 Cases and, to the extent of the withdrawal of any reference
under section 157 of title 28 of the United States Code and/or order of a district court pursuant
to section 157(a) of title 28 of the United States Code, the United States District Court for the
District of Delaware.
28. Bankruptcy Rules: The Federal Rules of Bankruptcy Procedure as applicable to the
Chapter 11 Cases, and the general, local, and chambers rules of the Bankruptcy Court.
7
29. Bar Date: As applicable, (a) October 15, 2009, (b) the Government Bar Date, or
(c) such other period of limitation as may be specifically fixed by an order of the Bankruptcy
Court for filing Claims.
30. Board Selection Term Sheet: Under the Claims Conversion Sub Plan, that certain
term sheet filed with the Bankruptcy Court on March 15, 2010 [Docket No. 2546] pursuant to which
the New Board shall be selected. Under the Rights Offering Sub Plan, that certain term sheet among
Visteon Corporation and the Requisite Investors, attached as Exhibit A to the Plan.
31. Business Day: Any day, other than a Saturday, Sunday, or a legal holiday, as
defined in Bankruptcy Rule 9006(a).
32. Cash: The legal tender of the United States of America or the equivalent thereof,
including bank deposits and checks.
33. Cash Amount: For each Non-Eligible Holder, the lesser of (a) its Cash Amount
Allocation of $50.0 million in Cash or (b) 40% of the amount of such holders Allowed Claim in
Cash.
34. Cash Amount Allocation: The proportion that a Non-Eligible Holders Allowed
Senior Notes Claim bears to the aggregate of Allowed Senior Notes Claims held by all Non-Eligible
Holders.
35. Cash Recovery Backstop Investor: Each Eligible Holder of an Allowed Senior Notes
Claim that is party to the Cash Recovery Backstop Agreement.
36. Cash Recovery Backstop Agreement: That certain cash recovery backstop agreement,
dated May 6, 2010, by and among Visteon Corporation and the investor parties thereto.
37. Cash Recovery Subscription Equity: The aggregate number of Rights Offering Shares
for which Non-Eligible Holders would have been entitled to subscribe pursuant to Subscription
Rights had such Non-Eligible Holders been Eligible Holders.
38. Causes of Action: Any and all Claims, actions, causes of action, choses in
action, suits, debts, damages, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, remedies, rights of set-off, third-party claims, subrogation claims,
contribution claims, reimbursement claims, indemnity claims, counterclaims, and crossclaims
(including all claims and any avoidance, recovery, subordination, or other actions against Insiders
and/or any other Entities under the Bankruptcy Code, including Avoidance Actions) of any of the
Debtors, the debtors in possession, and/or the Estates (including those actions set forth in the
Plan Supplement), whether known or unknown, liquidated or unliquidated, fixed or contingent,
matured or unmatured, disputed or undisputed, that are or may be pending on the Effective Date or
instituted by the Reorganized Debtors after the Effective Date against any Entity, based in law or
equity, including under the Bankruptcy Code, whether direct, indirect, derivative, or otherwise and
whether asserted or unasserted as of the date of entry of the Confirmation Order.
8
39. Certificate: Any instrument evidencing a Claim or an Interest.
40. Chapter 11 Cases: The jointly administered chapter 11 cases commenced by the
Debtors, with case numbers 09-11786 through 09-11816, and styled In re Visteon Corporation, et al.,
Case No. 09-11786 (CSS), which are currently pending before the Bankruptcy Court.
41. Claim: As defined in section 101(5) of the Bankruptcy Code.
42. Claims and Solicitation Agent: Kurtzman Carson Consultants LLC, located at 2335
Alaska Avenue, El Segundo, California 90245, (888) 249-2792, retained as the Debtors claims and
solicitation agent by order dated May 29, 2009, entitled Order Authorizing Employment and Retention
of Kurtzman Carson Consultants LLC as Notice, Claims, and Solicitation Agent for Debtors [Docket
No. 79].
43. Claims Conversion Sub Plan: The Plan if the Debtors do not obtain Consummation of
the Rights Offering Sub Plan. For the avoidance of doubt, the Claims Conversion Sub Plan shall be
premised on the valuation of the Debtors as set forth in the Debtors Fourth Amended Disclosure
Statement for the Fourth Amended Joint Plan of Reorganization of Visteon Corporation and Its Debtor
Affiliates Pursuant to Chapter 11 of the United States Bankruptcy Code attached to the Equity
Commitment Agreement.
44. Claims Register: The official register of Claims and Interests maintained by the
Claims and Solicitation Agent.
45. Class: A category of holders of Claims or Interests pursuant to section 1122(a)
of the Bankruptcy Code.
46. Co-Investor: As defined in the Equity Commitment Agreement.
47. Committee Plan Support Agreement: That certain plan support agreement among the
Debtors and the Creditors Committee filed with the Bankruptcy Court on May 23, 2010 [Docket No.
3185].
48. Confirmation: The entry of the Confirmation Order on the docket of the Chapter 11
Cases, subject to all conditions specified having been satisfied or waived.
49. Confirmation Date: The date upon which the Bankruptcy Court enters the
Confirmation Order on the docket of the Chapter 11 Cases, within the meaning of Bankruptcy Rules
5003 and 9021.
50. Confirmation Hearing: The hearing before the Bankruptcy Court pursuant to section
1128 of the Bankruptcy Code on the motion for entry of the Confirmation Order.
51. Confirmation Order: The order of the Bankruptcy Court confirming the Plan
pursuant to section 1129 of the Bankruptcy Code.
52. Connersville / Bedford Pension Plan: That certain Pension Plan of Visteon
Systems, LLC Connersville and Bedford Plants, as amended through December 22, 2009.
9
53. Consenting Note Holders: Those certain holders of Allowed Senior Notes Claims
that are party to the Note Holder Plan Support Agreement.
54. Consummation: The occurrence of the Effective Date.
55. Contingent Holder: A holder of an Allowed Claim or Interest that, in connection
with the issuance and distribution to such holder of shares of New Visteon Common Stock pursuant to
the Plan, provides to the Distribution Agent written notice at least ten days prior to the
Effective Date that receipt of such shares may cause such holder to be in violation of the laws or
regulations of any applicable Governmental Unit. A Contingent Holder shall not be entitled to
receive shares of New Visteon Common Stock unless and until such laws or regulations are complied
with including that such holder makes or obtains all necessary governmental and/or third party
notifications, filings, consents, waivers, authorizations or approvals, as applicable.
56. Counsel to the Ad Hoc Group of Noteholders: As defined in the Equity Commitment
Agreement.
57. Creditor: As defined in section 101(10) of the Bankruptcy Code.
58. Creditors Committee: The official committee of unsecured creditors appointed
pursuant to section 1102 of the Bankruptcy Code by the United States Trustee for the District of
Delaware on June 8, 2009, as it may be reconstituted from time to time.
59. Cure: A Claim for all unpaid monetary obligations, or such lesser amount as may
be agreed upon by the parties, under an Executory Contract or Unexpired Lease assumed by the
Debtors pursuant to section 365 of the Bankruptcy Code or the Plan.
60. Cure Bar Date: The deadline for filing Proofs of Claims on account of a Cure,
which shall be the earlier of: (a) 30 days after the Effective Date or (b) 30 days after the
assumption of the applicable Executory Contract or Unexpired Lease, unless otherwise ordered by the
Bankruptcy Court or agreed to by the Debtors and the counterparty to the applicable Executory
Contract or Unexpired Lease.
61. Currency Contracts: Derivative contracts and foreign currency spot trades entered
into by a Debtor in the ordinary course of business, as more fully set forth in that certain motion
filed with the Bankruptcy Court on October 28, 2009 [Docket No. 1203].
62. Debtors: Each of the following Entities, collectively: Visteon Corporation; ARS,
Inc.; Fairlane Holdings, Inc.; GCM/Visteon Automotive Leasing Systems, LLC; GCM/Visteon Automotive
Systems, LLC; Infinitive Speech Systems Corp.; MIG-Visteon Automotive Systems, LLC; SunGlas, LLC;
The Visteon Fund; Tyler Road Investments, LLC; VC Aviation Services, LLC; VC Regional Assembly &
Manufacturing, LLC; Visteon AC Holdings Corp.; Visteon Asia Holdings, Inc.; Visteon Automotive
Holdings, LLC; Visteon Caribbean, Inc.; Visteon Climate Control Systems Limited; Visteon Domestic
Holdings, LLC; Visteon Electronics Corporation; Visteon European Holdings Corporation; Visteon
Financial Corporation; Visteon Global Technologies, Inc.; Visteon Global Treasury, Inc.; Visteon
Holdings, LLC; Visteon International Business Development, Inc.; Visteon International Holdings,
Inc.; Visteon LA Holdings Corp.; Visteon Remanufacturing Incorporated; Visteon Systems, LLC; and
Visteon Technologies, LLC.
10
63. DIP Facility: The debtor in possession financing facility set forth in the DIP
Facility Credit Agreement providing for a $75 million immediate draw and an option to draw an
additional $75 million, subject to certain conditions, and approved by Final Order (A) Approving
Senior Secured Superpriority Priming Postpetition Financing; (B) Granting Liens and Providing
Superpriority Administrative Expense Status; (C) Granting Adequate Protection to Prepetition
Secured Parties; (D) Authorizing the Use of Cash Collateral; and (E) Modifying the Automatic Stay,
entered on November 12, 2009 [Docket No. 1311].
64. DIP Facility Administrative Agent: Wilmington Trust FSB, or its successor, in its
capacity as administrative agent under the DIP Facility.
65. DIP Facility Claims: Any Claim derived from or based upon the DIP Facility.
66. DIP Facility Credit Agreement: That certain Senior Secured Super Priority Priming
Debtor in Possession Credit and Guaranty Agreement, dated November 18, 2009, as amended,
supplemented, or modified from time to time, between Visteon Corporation and each subsidiary of
Visteon Corporation party thereto, as borrowers, the lenders party thereto, and the DIP Facility
Administrative Agent.
67. DIP Facility Lenders: The lenders under the DIP Facility.
68. Direct Commitment: The obligation of the Investors, severally and not jointly, to
subscribe for and purchase, or cause one or more of their affiliates to subscribe for and purchase,
Rights Offering Shares in an amount equal to $300.0 million on the terms and subject to the
conditions of the Equity Commitment Agreement.
69. Disclosure Statement: The disclosure statement for the Plan, supplemented or
modified from time to time, including all exhibits and schedules thereto, and as approved by the
Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code.
70. Disputed Claim: Any Claim or Interest that is not yet Allowed.
71. Distributable Commitment Percentage: As defined in the Cash Recovery Backstop
Agreement.
72. Distributable Equity: Those shares of New Visteon Common Stock issued and
outstanding as of the Effective Date, including, if applicable, Rights Offering Shares, subject to
dilution by the Management Equity Incentive Program and, if applicable, the Guaranty Equity Amount
and the Old Equity Warrants.
73. Distribution Agent: The Reorganized Debtors or the Entity or Entities selected by
the Reorganized Debtors, as applicable, to make or to facilitate distributions pursuant to the
Plan.
74. Distribution Date: The date occurring as soon as the Debtors or the Reorganized
Debtors determine in their sole discretion to be reasonable and practicable after the Effective
Date, upon which the Distribution Agent shall begin making distributions to holders of Allowed
Claims entitled to receive distributions under the Plan.
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75. Distribution Record Date: The date for determining which holders of Allowed
Claims or Interests, except holders of publicly traded Certificates, are eligible to receive
distributions hereunder, which shall be (a) ten Business Days after entry of the Confirmation Order
or (b) such other date as designated in a Bankruptcy Court order.
76. Effective Date: The date that is the first Business Day after the Confirmation
Date on which: (a) no stay of the Confirmation Order is in effect; and (b) all conditions
precedent to the Effective Date have been satisfied or waived.
77. Election Form: The form entitled Indication of Accredited Investor Status
pursuant to which a holder of an Allowed Senior Notes Claim certifies whether it is or is not an
Accredited Investor.
78. Election Form Deadline: That date which shall be the final date by which a holder
may submit its Election Form certifying whether it is or is not an Accredited Investor, as set
forth in the Rights Offering Procedures.
79. Eligible Holder: A holder of an Allowed Senior Notes Claim that, in accordance
with the terms set forth in the Election Form and the Rights Offering Procedures, has submitted a
completed Election Form certifying that such holder is an Accredited Investor.
80. Entity: As defined in section 101(15) of the Bankruptcy Code.
81. Equity Commitment Agreement: That certain equity commitment agreement, dated May
6, 2010, by and among Visteon Corporation and the investor parties thereto, as amended from time to
time in accordance with the terms therewith.
82. Equity Security: As defined in section 101(16) of the Bankruptcy Code.
83. Estate: The bankruptcy estate of any Debtor created pursuant to sections 301 and
541 of the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
84. Exculpated Claim: Any Claim related to any act or omission in connection with,
relating to, or arising out of the Debtors in or out of court restructuring, the Chapter 11 Cases,
formulation, preparation, dissemination, negotiation, or filing of the Disclosure Statement or Plan
or any contract, instrument, release, or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Equity Commitment Agreement, the filing of
the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration
and implementation of the Plan, or the distribution of property under the Plan or any other
agreement.
85. Exculpated Party: Each of the following in its capacity as such: (a) the Debtors
and their Affiliates, (b) the Reorganized Debtors and their Affiliates, (c) the DIP Facility
Lenders and the DIP Facility Administrative Agent, (d) the Investors, (e) the ABL Facility
Administrative Agent, solely to the extent that such party votes to accept the Plan if entitled to
vote, and the ABL Lender, solely to the extent that such party votes to accept the Plan if entitled
to vote and matters relating to Ford Motor Company have been resolved to the reasonable
satisfaction of the Requisite Parties, (f) the Term Loan Lenders and the Term Loan Facility
Administrative Agent,
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(g) the Ad Hoc Group of Noteholders, (h) any holder of Senior Notes, solely to the extent that
such holder votes to accept the Plan, (i) any holder of an Interest in Visteon Corporation, solely
to the extent that such holder votes to accept the Plan and Class J votes to accept the Plan
pursuant to section 1126(d) of the Bankruptcy Code, and (j) with respect to each of the foregoing
Entities in clauses (a) through (i), such Entities successors and assigns, (k) the Creditors
Committee and the members thereof, (l) with respect to each of the foregoing Entities in clauses
(a) through (k), such Entities subsidiaries, affiliates, officers, directors, principals,
partners, members, employees, agents, financial advisors, attorneys, accountants, investment
bankers, consultants, representatives, and other Professionals, in their capacities as such.
86. Executory Contract: A contract or lease to which one or more of the Debtors is a
party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
87. Exit Financing: As defined in the Equity Commitment Agreement.
88. Final Decree: The decree contemplated under Bankruptcy Rule 3022.
89. Final Order: An order or judgment of the Bankruptcy Court, or other court of
competent jurisdiction with respect to the subject matter, which has not been reversed, stayed,
modified, or amended, and as to which the time to appeal or seek certiorari has expired and no
appeal or petition for certiorari has been timely taken, or as to which any appeal that has been
taken or any petition for certiorari that has been or may be filed has been resolved by the highest
court to which the order or judgment was appealed or from which certiorari was sought;
provided, however, that the possibility that a motion under Rule 60 of the Federal
Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules or the Local Bankruptcy
Rules, may be filed relating to such order shall not prevent such order from being a Final Order;
provided, further, that the Debtors or Reorganized Debtors, as applicable, reserve
the right to waive any appeal period.
90. General Unsecured Claim: Any Claim, other than Administrative Claims,
Professional Claims, DIP Facility Claims, Priority Tax Claims, ABL Claims, Secured Tax Claims,
Other Secured Claims, Other Priority Claims, Term Loan Facility Claims, 7.00% Senior Notes Claims,
8.25% Senior Notes Claims, 12.25% Senior Notes Claims, Intercompany Claims, and Section 510(b)
Claims.
91. Government Bar Date: November 24, 2009.
92. Governmental Unit: As defined in section 101(27) of the Bankruptcy Code.
93. Guaranty Equity Amount: Under the Rights Offering Sub Plan, warrants with the
terms set forth in the Warrant Agreement attached as Exhibit B to the Plan.
94. Impaired: With respect to any Class of Claims or Interests, a Claim or Interest
that is not Unimpaired.
95. Incentive Program: That certain incentive program established by Visteon
Corporation pursuant to the 2004 Incentive Plan effective May 12, 2004, comprised of an annual
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incentive program and a long term incentive program, as amended by the Employee Benefit and
Incentive Programs Term Sheet attached as Exhibit L to the Equity Commitment Agreement.
96. Indemnification Obligation: A Debtors obligation under an Executory Contract, a
corporate or other document, a postpetition agreement, through the Plan, or otherwise to indemnify
directors, officers, or employees of the Debtors who served in such capacity at any time, with
respect to or based upon any act or omission taken or omitted in any of such capacities, or for or
on behalf of any Debtor, pursuant to and to the maximum extent provided by the Debtors respective
articles of incorporation, certificates of formation, bylaws, similar corporate documents, and
applicable law, as in effect as of the Effective Date.
97. Insider: As defined in section 101(31) of the Bankruptcy Code.
98. Intercompany Claim: A Claim by a Debtor against another Debtor or a Claim by an
Affiliate of the Debtors against a Debtor.
99. Intercompany Contract: A contract between two or more Debtors or a contract
between one or more Affiliates and one or more Debtors.
100. Intercompany Interest: An Interest held by a Debtor or an Affiliate.
101. Interest: Any Equity Security of a Debtor existing immediately prior to the
Effective Date.
102. Interim Compensation Order: The Order Establishing Procedures for Interim
Compensation and Reimbursement of Expenses of Professionals, entered by the Bankruptcy Court on
June 19, 2009 [Docket No. 360].
103. Investors: Those certain holders of the Allowed Senior Notes Claims that are
party to the Equity Commitment Agreement.
104. Lead Investors: Those certain Investors set forth on Schedule 5 of the Equity
Commitment Agreement.
105. Lien: As defined in section 101(37) of the Bankruptcy Code.
106. Management Equity Incentive Program: A post-Effective Date compensation program
in accordance with the terms set forth in the Management Equity Incentive Program Term Sheet.
107. Management Equity Incentive Program Term Sheet: Under the Claims Conversion Sub
Plan, the Claims Conversion Sub Plan Management Equity Incentive Program Term Sheet contained in
the Plan Supplement. Under the Rights Offering Sub Plan, the Rights Offering Sub Plan Management
Equity Incentive Program Term Sheet attached as Exhibit G to the Equity Commitment Agreement, as
amended.
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108. New Board: The initial board of directors of Reorganized Visteon, which shall as
of the Effective Date consist of members selected in accordance with the Board Selection Term
Sheet.
109. New Visteon Common Stock: The authorized shares of common stock of Reorganized
Visteon, par value $0.01 per share.
110. Non-Eligible Holder: A holder of an Allowed Senior Notes Claim that is not an
Eligible Holder.
111. Note Holder Plan Support Agreement: That certain plan support agreement among
the Debtors and the Consenting Note Holders, attached as Exhibit H to the Equity Commitment
Agreement, as amended from time to time in accordance with the terms therewith.
112. Notes Indentures: Collectively, the 7.00% Senior Notes Indenture, 8.25% Senior
Notes Indenture, and 12.25% Senior Notes Indenture.
113. Notes Trustee: Law Debenture Trust Company of New York, or its successor, in its
capacity as successor trustee under the 7.00% Senior Notes Indenture, the 8.25% Senior Notes
Indenture, and the 12.25% Senior Notes Indenture.
114. Oasis Trust: Oasis Holdings Statutory Trust, a Connecticut statutory trust and
an Affiliate.
115. Old Equity Warrants: Under the Rights Offering Sub Plan, warrants to purchase
1,577,951 shares of New Visteon Common Stock on or before that date that is five years after the
Effective Date at an exercise price of $51.59 per share, with terms as more fully set forth in the
Equity Holder Warrant Agreement contained in the Plan Supplement.
116. OPEB: Other post-employment benefits obligations.
117. Other Priority Claim: Any Claim other than an Administrative Claim or a Priority
Tax Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code.
118. Other Secured Claim: Any Secured Claim other than (a) a DIP Facility Claim, (b)
an ABL Claim, (c) a Term Loan Facility Claim, or (d) a Secured Tax Claim.
119. Oversight Committee: A post-Effective Date committee consisting of no more than
three members of the Creditors Committee to be selected by the Creditors Committee upon
consultation with the Debtors and existing solely for the purpose described in ARTICLE XIII.H of
the Plan.
120. Oversubscription Rights: The rights granted to Eligible Holders that validly
exercise their Subscription Rights in full to purchase Rights Offering Shares not otherwise
subscribed for pursuant to Eligible Holders validly exercised Subscription Rights.
121. PBGC: The Pension Benefit Guaranty Corporation, a wholly-owned United States
government corporation, created by the Employee Retirement Income Security Act of
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1974 (ERISA), to administer the mandatory pension plan termination insurance program
established under Title IV of ERISA.
122. Pension Plans: Collectively, the Visteon Pension Plan, the Connersville /
Bedford Pension Plan, the UAW Pension Account Plan, and the Visteon Caribbean Pension Plan, which
are the Debtors defined benefit pension plans subject to Title IV of ERISA.
123. Periodic Distribution Date: The Distribution Date, as to the first distribution
made by the Distribution Agent, and thereafter, such Business Days as determined in the sole
discretion of the Distribution Agent.
124. Person: As defined in section 101(41) of the Bankruptcy Code.
125. Petition Date: May 28, 2009.
126. Plan: The Debtors joint chapter 11 plan of reorganization as it may be altered,
amended, modified, or supplemented from time to time in accordance with the terms set forth herein,
including the Plan Supplement and all exhibits, supplements, appendices, and schedules.
127. Plan Supplement: The supplement or supplements to the Plan containing certain
documents relevant to the implementation of the Plan, to be filed with the Bankruptcy Court, as it
may be amended prior to the Effective Date, which shall be in form and substance reasonably
acceptable to the Requisite Parties.
128. Plan Support Agreements: Collectively, the Note Holder Plan Support Agreement
and the Committee Plan Support Agreement.
129. Priority Claim: Collectively, Priority Tax Claims and Other Priority Claims.
130. Priority Tax Claim: Any Claim of a Governmental Unit of the kind specified in
section 507(a)(8) of the Bankruptcy Code.
131. Professional: An Entity: (a) employed in the Chapter 11 Cases pursuant to a
Final Order in accordance with sections 327 and 1103 of the Bankruptcy Code and to be compensated
for services rendered prior to or on the Effective Date, pursuant to sections 327, 328, 329, 330,
and 331 of the Bankruptcy Code or (b) for which compensation and reimbursement has been Allowed by
the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.
132. Professional Claims: A Claim by a Professional seeking an award by the
Bankruptcy Court of compensation for services rendered or reimbursement of expenses incurred
through and including the Confirmation Date under sections 330, 331, 503(b)(2), 503(b)(3),
503(b)(4) or 503(b)(5) of the Bankruptcy Code.
133. Professional Compensation: All accrued fees and expenses (including success
fees) for services rendered by all Professionals through and including the Confirmation Date to the
extent any such fees and expenses have not been paid and regardless of whether a fee application
has been filed for such fees and expenses. To the extent there is a Final Order
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denying some or all of a Professionals fees or expenses, such denied amounts shall no longer
be considered Professional Compensation.
134. Professional Fee Escrow Account: An interest-bearing account in an amount equal
to the Professional Fee Reserve Amount and funded by the Debtors on the Confirmation Date.
135. Professional Fee Reserve Amount: Professional Compensation through the
Confirmation Date as estimated in accordance with ARTICLE II.B.3 herein.
136. Proof of Claim: A proof of Claim filed against any of the Debtors in the Chapter
11 Cases.
137. Pro Rata: The proportion that an Allowed Claim or Interest in a particular Class
bears to the aggregate amount of Allowed Claims or Interests in that Class.
138. Pro Rata Allocation: In connection with the Rights Offering, the proportion that
an Eligible Holders Allowed Senior Notes Claim bears to the aggregate of Allowed Senior Notes
Claims. Otherwise, the proportion that a holders Allowed Senior Notes Claim bears to the
aggregate of Allowed Senior Notes Claims.
139. Purchase Notice: As defined in the Equity Commitment Agreement.
140. Purchase Price: $27.69 per share.
141. Related Purchaser: As defined in the Equity Commitment Agreement.
142. Released Party: Each of the following in its capacity as such, and only in its
capacity as such: (a) the Debtors and the Reorganized Debtors current and former affiliates,
subsidiaries, officers, directors, principals, partners, members, employees, agents, financial
advisors, attorneys, accountants, investment bankers, consultants, representatives, and other
Professionals, (b) the DIP Facility Lenders and the DIP Facility Administrative Agent, (c) the
Investors, (d) the ABL Facility Administrative Agent, solely to the extent that such party votes to
accept the Plan if entitled to vote, and the ABL Lender, solely to the extent that such party votes
to accept the Plan if entitled to vote and matters relating to Ford Motor Company have been
resolved to the reasonable satisfaction of the Requisite Parties, (e) the Term Loan Lenders and the
Term Loan Facility Administrative Agent, (f) any holder of Senior Notes, solely to the extent that
such holder votes to accept the Plan, (g) any holder of an Interest in Visteon Corporation, solely
to the extent that such holder votes to accept the Plan and Class J votes to accept the Plan
pursuant to section 1126(d) of the Bankruptcy Code, (h) the Creditors Committee and the members
thereof, and (i) with respect to each of the foregoing Entities in clauses (b) through (h), their
respective current and former affiliates, subsidiaries, officers, directors, principals, employees,
agents, financial advisors, attorneys, accountants, investment bankers, consultants,
representatives, and other Professionals, in their capacities as such.
143. Releasing Party: Each of the following in its capacity as such: (a) the DIP
Facility Lenders and the DIP Facility Administrative Agent, (b) the ABL Lender and ABL Facility
Administrative Agent, (c) the Term Loan Lenders and the Term Loan Facility
17
Administrative Agent, (d) the Creditors Committee and the members thereof, (e) the Investors,
(f) each holder of a Claim or Interest voting to accept the Plan, and (g) each holder of a Claim or
Interest abstaining from voting to accept or reject the Plan, unless such abstaining holder
checks the box on the applicable ballot, upon which holders of Impaired Claims or Interests
entitled to vote shall cast their vote to accept or reject the Plan, indicating that such holder
opts not to grant the releases provided in the Plan.
144. Reorganized Debtors: The Debtors, in each case, or any successor thereto, by
merger, consolidation, or otherwise, on or after the Effective Date.
145. Reorganized Visteon: Visteon Corporation or any successor thereto, by merger,
consolidation, or otherwise, on or after the Effective Date.
146. Reorganized Visteon Bylaws: The bylaws of Reorganized Visteon substantially in
the form contained in the Plan Supplement under the Claims Conversion Sub Plan or attached as
Exhibit D to the Equity Commitment Agreement under the Rights Offering Sub Plan.
147. Reorganized Visteon Charter: The amended and restated certificate of
incorporation of Reorganized Visteon substantially in the form contained in the Plan Supplement
under the Claims Conversion Sub Plan or attached as Exhibit E to the Equity Commitment Agreement
under the Rights Offering Sub Plan.
148. Requisite Investors: As defined in the Equity Commitment Agreement.
149. Requisite Parties: The Requisite Investors under the Rights Offering Sub Plan.
The Requisite Term Loan Holders under the Claims Conversion Sub Plan.
150. Requisite Term Loan Holders: The Term Loan Lenders holding a majority in
principal amount of the Allowed Term Loan Facility Claims.
151. Restructuring Transactions: Those certain transactions described in ARTICLE IV.T
of the Plan.
152. Rights Offering: That certain rights offering by Visteon Corporation pursuant to
which Eligible Holders shall have the right to exercise Subscription Rights and Oversubscription
Rights and the Investors shall have obligations to consummate the Direct Commitment and the
Backstop Commitment to purchase Rights Offering Shares for an amount in aggregate equal to $1,250.0
million.
153. Rights Offering Agent: Financial Balloting Group, LLC.
154. Rights Offering Procedures: The procedures required to be followed by the
Eligible Holders to validly exercise their Subscription Rights and Oversubscription Rights,
attached as Exhibit J to the Equity Commitment Agreement, as amended, the terms of which shall be
approved by the Rights Offering Procedures Order.
155. Rights Offering Procedures Order: That certain Final Order approving certain
procedures for the exercise of Subscription Rights and Oversubscription Rights.
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156. Rights Offering Shares: Any shares of New Visteon Common Stock that are the
subject of the Rights Offering, subject to dilution by the Management Equity Incentive Program and,
if applicable, the Guaranty Equity Amount and the Old Equity Warrants.
157. Rights Offering Sub Plan: The Plan if both of the Rights Offering and the Exit
Financing are consummated, in accordance with the terms of the Plan and the Equity Commitment
Agreement. The Rights Offering Sub Plan shall be premised on the valuation of the Debtors as set
forth in the Debtors Fourth Amended Disclosure Statement for the Fourth Amended Joint Plan of
Reorganization of Visteon Corporation and Its Debtor Affiliates Pursuant to Chapter 11 of the
United States Bankruptcy Code attached to the Equity Commitment Agreement.
158. Schedules: The schedules of assets and liabilities, schedules of Executory
Contracts and Unexpired Leases, and statements of financial affairs filed by the Debtors pursuant
to section 521 of the Bankruptcy Code and the Bankruptcy Rules.
159. Section 510(b) Claim: Any Claim against the Debtors arising from rescission of a
purchase or sale of a security of the Debtors or an Affiliate of the Debtors, for damages arising
from the purchase or sale of such a security, or for reimbursement or contribution allowed under
section 502 of the Bankruptcy Code on account of such a Claim.
160. Secured Claim: A Claim: (a) secured by a Lien on collateral to the extent of the
value of such collateral, as determined in accordance with section 506(a) of the Bankruptcy Code or
(b) subject to a valid right of setoff pursuant to section 553 of the Bankruptcy Code
161. Secured Tax Claim: Any Secured Claim that, absent its secured status, would be
entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy Code (determined
irrespective of time limitations), including any related Secured Claim for penalties.
162. Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
163. Security: As defined in section 2(a)(1) of the Securities Act.
164. Senior Notes: Collectively, the 7.00% Senior Notes, 8.25% Senior Notes, and
12.25% Senior Notes.
165. Servicer: An indenture trustee, agent, servicer, or other authorized
representative of holders of Claims or Interests recognized by the Debtors.
166. Solicitation Procedures Order: That certain Final Order approving certain
procedures for solicitation of votes on the Plan.
167. Subscription Expiration Date: That date which shall be the final date by which
an Eligible Holder may exercise Subscription Rights and, if applicable, Oversubscription Rights,
which date is set forth in the Rights Offering Procedures Order.
19
168. Subscription Form: The form that an Eligible Holder must complete and return to
the Rights Offering Agent in order to exercise Subscription Rights and Oversubscription Rights in
accordance with the terms of ARTICLE V.F of the Plan.
169. Subscription Rights: The rights granted to Eligible Holders to purchase the
Rights Offering Shares.
170. Term Loan Agreement: That certain Amended and Restated Credit Agreement, dated
April 10, 2007, between Visteon Corporation, as borrower, JPMorgan Chase Bank, N.A., as
administrative agent, Wilmington Trust FSB, as successor administrative agent, Citicorp USA, Inc.,
as syndication agent, Credit Suisse Securities (USA) LLC and Sumitomo Mitsui Banking Corporation,
as co-documentation agents, and the several banks, financial institutions, and other entities party
thereto, as lenders, as amended, supplemented, or modified from time to time.
171. Term Loan Facility: The $1.5 billion facility provided under (a) the Term Loan
Agreement and any ancillary agreements related thereto, and (b) all related security agreements,
mortgages, pledge agreements, guaranties, other collateral agreements, Certificates, financing
statements and related assignments and transfer powers and additional documents and ancillary
agreements, as amended.
172. Term Loan Facility Administrative Agent: Wilmington Trust FSB, or its successor,
in its capacity as successor administrative agent under the Term Loan Facility.
173. Term Loan Facility Claims: The Claims, including all accrued but unpaid
interest, fees, costs, and expenses due and owing with respect thereto, derived from or based upon
the Term Loan Facility.
174. Term Loan Lender: A holder of a Term Loan Facility Claim.
175. Trade Claim: Any Claim arising prior to the Petition Date that directly relates
to and arises solely from the receipt of goods or services by the Debtors, excluding for the
avoidance of doubt Administrative Claims.
176. UAW Pension Account Plan: That certain UAW Visteon Pension Account Plan, as
amended through January 8, 2010.
177. Unclaimed Distribution: Any distribution under the Plan on account of an Allowed
Claim to a holder that has not: (a) accepted a particular distribution or, in the case of
distributions made by check, negotiated such check; (b) given notice to the Reorganized Debtors of
an intent to accept a particular distribution; (c) responded to the Debtors or Reorganized
Debtors requests for information necessary to facilitate a particular distribution; or (d) taken
any other action necessary to facilitate such distribution.
178. Unexpired Lease: A lease of nonresidential real property to which one or more of
the Debtors is a party that is subject to assumption or rejection under section 365 of the
Bankruptcy Code.
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179. Unimpaired: With respect to a Class of Claims or Interests, a Class of Claims or
Interests that is unimpaired within the meaning of section 1124 of the Bankruptcy Code.
180. U.S. Bank L/C Facility Documents: That certain Letter of Credit Reimbursement
and Security Agreement, dated November 16, 2009, between Visteon Corporation and U.S. Bank National
Association, as amended from time to time, and any related documents and instruments as may be
delivered or executed in connection therewith.
181. VIHI Restructuring: The reorganizations and other transactions involving certain
subsidiaries of Visteon Corporation that may be undertaken on or prior to the Effective Date as set
forth in Exhibit K attached to the Equity Commitment Agreement.
182. Visteon Caribbean Pension Plan: That certain Pension Plan of Visteon Caribbean,
Inc., as amended through July 8, 2009.
183. Visteon Pension Plan: That certain Visteon Pension Plan, as amended through
December 22, 2009.
184. Voting Deadline: That date which shall be the final date by which a holder of a
Claim or Interest may vote to accept or reject the Plan, which date is set forth in the
Solicitation Procedures Order.
185. Voting Record Date: That date for determining which holders of Claims and
Interests are entitled to vote to accept or reject the Plan, which date is set forth in the
Solicitation Procedures Order.
B. | Rules of Interpretation |
1. For purposes of the Plan: (a) in the appropriate context, each term, whether stated in the
singular or the plural, shall include both the singular and the plural, and pronouns stated in the
masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender;
(b) unless otherwise specified, any reference herein to a contract, lease, instrument, release,
indenture, or other agreement or document being in a particular form or on particular terms and
conditions means that such document shall be substantially in such form or substantially on such
terms and conditions; (c) unless otherwise specified, any reference herein to an existing document,
schedule, or exhibit, shall mean such document, schedule, or exhibit, as it may have been or may be
amended, modified, or supplemented; (d) unless otherwise specified, all references herein to
Articles are references to Articles hereof or hereto; (e) the words herein, hereof, and
hereto refer to the Plan in its entirety rather than to any particular portion of the Plan; (f)
captions and headings to Articles are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation of the Plan; (g) unless otherwise
specified herein, the rules of construction set forth in section 102 of the Bankruptcy Code shall
apply; and (h) any term used in capitalized form herein that is not otherwise defined but that is
used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such term in
the Bankruptcy Code or the Bankruptcy Rules, as applicable.
2. The provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time
prescribed or allowed herein.
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3. Except to the extent the Bankruptcy Code or Bankruptcy Rules apply, and subject to the
provisions of any contract, lease, instrument, release, indenture, or other agreement or document
entered into expressly in connection herewith, the rights and obligations arising hereunder shall
be governed by, and construed and enforced in accordance with, the laws of the State of New York,
without giving effect to the principles of conflict of laws thereof.
4. Unless specified as pertaining to the Rights Offering Sub Plan or the Claims Conversion Sub
Plan, the provisions of the Plan shall apply whether the Debtors proceed with Confirmation and
Consummation of the Rights Offering Sub Plan or the Claims Conversion Sub Plan.
ARTICLE II.
ADMINISTRATIVE AND PRIORITY CLAIMS
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims,
Professional Claims, DIP Facility Claims, and Priority Tax Claims have not been classified and thus
are excluded from the Classes of Claims set forth in ARTICLE III.
A. Administrative Claims
Unless otherwise agreed to by the holder of an Allowed Administrative Claim and the Debtors or
Reorganized Debtors, as applicable, each holder of an Allowed Administrative Claim (other than of a
Professional Claim), including any Allowed Administrative Claim of the Notes Trustee, will receive
in full and final satisfaction of its Administrative Claim an amount of Cash equal to the amount of
such Allowed Administrative Claim either: (1) on the Effective Date, or as soon as practicable
thereafter, (2) if the Administrative Claim is not Allowed as of the Effective Date, no later than
30 days after the date on which an order Allowing such Administrative Claim becomes a Final Order,
or as soon as reasonably practicable thereafter, or (3) if the Allowed Administrative Claim is
based on liabilities incurred by the Debtors in the ordinary course of their business after the
Petition Date (including any reasonable fees and expenses as provided for in the Equity Commitment
Agreement), pursuant to the terms and conditions of the particular transaction giving rise to such
Allowed Administrative Claims, without any further action by the holders of such Allowed
Administrative Claims. For the avoidance of doubt, all reasonable fees and expenses of the Notes
Trustee (and its counsel, agents, and advisors) that are provided for under the Notes Indentures
shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter, without
a reduction to the recoveries of applicable holders of Allowed Claims.
B. | Professional Claims |
1. Final Fee Applications. All final requests for payment of Claims of a Professional
shall be filed no later than 60 days after the Confirmation Date. After notice and a hearing in
accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court
orders, the Allowed amounts of such Professional Claims shall be determined by the Bankruptcy
Court.
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2. Professional Fee Escrow Account. In accordance with ARTICLE II.B.3 hereof, on the
Confirmation Date, the Debtors shall establish and fund the Professional Fee Escrow Account with
Cash equal to the aggregate Professional Fee Reserve Amount for all Professionals. The
Professional Fee Escrow Account shall be maintained in trust for the Professionals. Such funds
shall not be considered property of the estates of the Debtors or Reorganized Debtors, as
applicable. The amount of Professional Claims owing to the Professionals shall be paid in Cash to
such Professionals by the Reorganized Debtors from the Professional Fee Escrow Account when such
Claims are Allowed by a Final Order. When all Professional Claims have been paid in full, amounts
remaining in the Professional Fee Escrow Account, if any, shall revert to the Reorganized Debtors.
3. Professional Fee Reserve Amount. To receive payment for unbilled fees and expenses
incurred through the Confirmation Date, the Professionals shall estimate their Professional
Compensation prior to and as of the Confirmation Date and shall deliver such estimate to the
Debtors no later than 10 days prior to the Confirmation Date, provided, however,
that such estimate shall not be considered an admission with respect to the fees and expenses of
such Professional. If a Professional does not provide an estimate, the Reorganized Debtors may
estimate the unbilled fees and expenses of such Professional. The total amount so estimated as of
the Confirmation Date shall comprise the Professional Fee Reserve Amount.
4. Post-Confirmation Date Fees and Expenses. Except as otherwise specifically
provided in the Plan, from and after the Confirmation Date, the Debtors or Reorganized Debtors, as
applicable, shall, in the ordinary course of business and without any further notice to or action,
order, or approval of the Bankruptcy Court, pay in Cash the reasonable legal, professional, or
other fees and expenses related to implementation and Consummation incurred by the Debtors or
Reorganized Debtors, as applicable. Upon the Confirmation Date, any requirement that Professionals
comply with sections 327 through 331 and 1103 of the Bankruptcy Code or the Interim Compensation
Order in seeking retention or compensation for services rendered after such date shall terminate,
and the Reorganized Debtors may employ and pay any Professional in the ordinary course of business
without any further notice to or action, order, or approval of the Bankruptcy Court.
C. | DIP Facility Claims |
Except to the extent that a holder of an Allowed DIP Facility Claim agrees to a less favorable
treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange
for each and every Allowed DIP Facility Claim, each such Allowed Claim shall be paid in full in
Cash on the Effective Date, or as soon as practicable thereafter, provided such payments shall be
distributed to the DIP Facility Administrative Agent on behalf of holders of such Allowed Claims.
D. | Priority Tax Claims |
Each holder of an Allowed Priority Tax Claim due and payable on or before the Effective Date
shall receive one of the following treatments on account of such Claim (1) Cash in an amount equal
to the amount of such Allowed Priority Tax Claim, (2) Cash in an amount agreed to by the Debtor or
Reorganized Debtor, as applicable, and such holder, provided, however, that
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such parties may further agree for the payment of such Allowed Priority Tax Claim to occur at
a later date, or (3) at the option of the Debtors, Cash in the aggregate amount of such Allowed
Priority Tax Claim payable in installment payments over a period not more than five years after the
Petition Date pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed
Priority Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in full in
Cash in accordance with the terms of any agreement between the Debtors and the holder of such
Claim, or as may be due and payable under applicable non-bankruptcy law or in the ordinary course
of business.
ARTICLE III.
CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS
A. | Sub Plans |
The Plan contemplates Confirmation and Consummation through either of two mutually exclusive
sub plansthe Rights Offering Sub Plan or the Claims Conversion Sub Plan. Except as otherwise
provided in ARTICLE XIII of the Plan, to the extent that both the Rights Offering and the Exit
Financing are consummated, the Debtors will proceed with Consummation of the Rights Offering Sub
Plan. To the extent that either of the Rights Offering or the Exit Financing is not consummated,
the Debtors will proceed with Confirmation and/or Consummation, as applicable, of the Claims
Conversion Sub Plan, subject to the terms of each of the Plan Support Agreements.
B. | Classification of Claims and Interests |
The Plan constitutes a separate plan of reorganization for each Debtor. Except for the Claims
addressed in ARTICLE II, all Claims and Interests are classified in the Classes set forth below
pursuant to section 1122 of the Bankruptcy Code. Classes of Claims and Interests shall be the same
under each of the Rights Offering Sub Plan and the Claims Conversion Sub Plan, provided,
certain Classes of Claims shall receive different treatment under the Rights Offering Sub Plan than
under the Claims Conversion Sub Plan, as specified below. In accordance with section 1123(a)(1) of
the Bankruptcy Code, the Debtors have not classified Administrative Claims, Professional Claims,
DIP Facility Claims, and Priority Tax Claims. A Claim or Interest is classified in a particular
Class only to the extent that the Claim or Interest qualifies within the description of that Class
and is classified in other Classes to the extent that any portion of the Claim or Interest
qualifies within the description of such other Classes. A Claim or Interest is also classified in
a particular Class for the purpose of receiving distributions pursuant to the Plan only to the
extent that such Claim or Interest is an Allowed Claim or Interest in that Class and has not been
paid, released, or otherwise satisfied prior to the Effective Date.
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1. Class Identification: Below is a chart assigning each Class a letter for purposes
of identifying each separate Class.
Class | Claim or Interest | Status | Voting Rights | |||
A
|
ABL Claims | Unimpaired | Conclusively Presumed to Accept | |||
B
|
Secured Tax Claims | Unimpaired | Conclusively Presumed to Accept | |||
C
|
Other Secured Claims | Unimpaired | Conclusively Presumed to Accept | |||
D
|
Other Priority Claims | Unimpaired | Conclusively Presumed to Accept | |||
E
|
Term Loan Facility Claims | Unimpaired under the Rights Offering Sub Plan. Impaired under the Claims Conversion Sub Plan. | Entitled to Vote, but Conclusively Presumed to Accept under the Rights Offering Sub Plan | |||
F
|
7.00% Senior Notes Claims and 8.25% Senior Notes Claims | Impaired | Entitled to Vote | |||
G
|
12.25% Senior Notes Claims | Impaired | Entitled to Vote | |||
H
|
General Unsecured Claims | Impaired | Entitled to Vote | |||
I
|
Intercompany Claims | Unimpaired | Conclusively Presumed to Accept | |||
J
|
Interests in Visteon Corporation | Impaired | Entitled to Vote | |||
K
|
Intercompany Interests | Unimpaired | Conclusively Presumed to Accept | |||
L
|
Section 510(b) Claims | Impaired | Deemed to Reject |
C. | Treatment of Classes of Claims and Interests |
1. | Class A ABL Claims |
a. | Classification: Class A consists of all ABL Claims. | ||
b. | Treatment: Except to the extent that a holder of an Allowed Class A Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class A Claim, each such holder of an Allowed Class A Claim shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter. | ||
c. | Voting: Class A is Unimpaired, and holders of Allowed Class A Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class A Claims are not entitled to vote to accept or reject the Plan. |
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2. | Class B Secured Tax Claims |
a. | Classification: Class B consists of all Secured Tax Claims. | ||
b. | Treatment: Except to the extent that a holder of an Allowed Class B Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class B Claim, each such holder of an Allowed Class B Claim shall receive, at the sole option of the Debtors or the Reorganized Debtors, as applicable: |
(i) | Cash on the Effective Date, or as soon as practicable thereafter, in an amount equal to such Allowed Class B Claim; or | ||
(ii) | commencing on the Effective Date and continuing over a period not exceeding five years from the Petition Date, equal semi-annual Cash payments in an aggregate amount equal to such Allowed Class B Claim, together with interest at the applicable non-default contract rate under non-bankruptcy law, subject to the sole option of the Debtors or the Reorganized Debtors to prepay the entire amount of such Allowed Claim; or | ||
(iii) | regular Cash payments in a manner not less favorable than the most favored non-priority unsecured Claim provided for by the Plan. |
c. | Voting: Class B is Unimpaired, and holders of Allowed Class B Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class B Claims are not entitled to vote to accept or reject the Plan. |
3. | Class C Other Secured Claims |
a. | Classification: Class C consists of all Other Secured Claims. | ||
b. | Treatment: Except to the extent that a holder of an Allowed Class C Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class C Claim, each such holder of an Allowed Class C Claim shall, at the sole option of the Debtors or the Reorganized Debtors, as applicable: |
(i) | have its Allowed Class C Claim reinstated and rendered Unimpaired in accordance with section 1124(2) of the Bankruptcy Code, notwithstanding any contractual provision or applicable non-bankruptcy law that entitles the holder of an Allowed Class C Claim to demand or receive payment of such Allowed Class C Claim prior to the stated maturity of such Allowed Class C Claim from and after the occurrence of a default; or |
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(ii) | receive Cash in an amount equal to such Allowed Class C Claim, including any interest on such Allowed Class C Claim required to be paid pursuant to section 506(b) of the Bankruptcy Code, on the later of the Effective Date and the date such Allowed Class C Claim becomes an Allowed Class C Claim, or as soon as practicable thereafter; or |
(iii) | receive the collateral securing its Allowed Class C Claim and any interest on such Allowed Class C Claim required to be paid pursuant to section 506(b) of the Bankruptcy Code. |
c. | Voting: Class C is Unimpaired, and holders of Allowed Class C Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class C Claims are not entitled to vote to accept or reject the Plan. |
4. | Class D Other Priority Claims |
a. | Classification: Class D consists of all Other Priority Claims. | ||
b. | Treatment: Except to the extent that a holder of an Allowed Class D Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class D Claim, each such holder of an Allowed Class D Claim shall be paid in full in Cash on the later of (i) the Effective Date, or as soon as practicable thereafter and (ii) the date such Class D Claim becomes Allowed, or as soon as practicable thereafter. | ||
c. | Voting: Class D is Unimpaired, and holders of Allowed Class D Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class D Claims are not entitled to vote to accept or reject the Plan. |
5. | Class E Term Loan Facility Claims |
a. | Classification: Class E consists of the Term Loan Facility Claims. | ||
b. | Allowance: Subject to the reinstatement of the Allowed Class E Claims by the Debtors, on the Effective Date, the Term Loan Facility Claims shall be Allowed in the aggregate amount of $1,629.34 million, measured as of June 29, 2010, plus, if applicable, any interest accrued on such Allowed Claims between June 30, 2010 and the Effective Date. | ||
c. | Treatment: Holders of Allowed Class E Claims will receive the following treatment under the Rights Offering Sub Plan and the Claims Conversion Sub Plan, respectively: |
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(i) | Rights Offering Sub Plan: Except to the extent that a holder of an Allowed Class E Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class E Claim (A) if Class E votes to accept the Plan pursuant to section 1126(c) of the Bankruptcy Code, each holder of an Allowed Class E Claim shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter, or (B) if Class E does not vote to accept the Plan pursuant to section 1126(c) of the Bankruptcy Code, the Debtors shall have the option, subject to the reasonable consent of the Requisite Investors, to seek to reinstate the Allowed Class E Claims, and, if successful, to thereafter pay to each holder of an Allowed Class E Claim its Pro Rata portion of an amount of Cash, to be determined by the Debtors (subject to the reasonable consent of the Requisite Investors), on the Effective Date, or as soon as practicable thereafter; provided, in the event the Debtors are unable to successfully reinstate the Allowed Class E Claims, each holder of an Allowed Class E Claim shall be paid in full in Cash on the Effective Date, or as soon as practicable thereafter. | ||
(ii) | Claims Conversion Sub Plan: Except to the extent that a holder of an Allowed Class E Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class E Claim, each such holder of an Allowed Class E Claim shall receive on the Effective Date, or as soon as practicable thereafter, its Pro Rata portion of 85.0% of the Distributable Equity. | ||
Under either of the Rights Offering Sub Plan or the Claims Conversion Sub Plan, the consideration provided under this ARTICLE III.C.5.c shall be the sole source of recovery for the Allowed Class E Claims, and holders of Class E Claims shall have no recourse against any non-Debtor Affiliates and shall have been deemed to waive any and all claims against any non-Debtor Affiliates. |
d. | Voting: Holders of Allowed Class E Claims are entitled to vote to accept or reject the Plan; provided, however, that if the Debtors proceed to Confirmation with the Rights Offering Sub Plan such holders would be Unimpaired (and conclusively presumed to accept the Plan) in accordance with section 1124 of the Bankruptcy Code. |
6. | Class F 7.00% Senior Notes Claims and 8.25% Senior Notes Claims |
a. | Classification: Class F consists of the 7.00% Senior Notes Claims and the 8.25% Senior Notes Claims. |
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b. | Allowance: On the Effective Date, the 7.00% Senior Notes Claims shall be Allowed in the aggregate amount of $456.82 million, and the 8.25% Senior Notes Claims shall be Allowed in the aggregate amount of $211.41 million. | ||
c. | Treatment: Holders of Allowed Class F Claims will receive the following treatment under the Rights Offering Sub Plan and the Claims Conversion Sub Plan, respectively: |
(i) | Rights Offering Sub PlanNon-Eligible Holders: Except to the extent that a Non-Eligible Holder of an Allowed Class F Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every applicable Allowed Class F Claim, each such Non-Eligible Holder of an Allowed Class F Claim shall receive on the Effective Date, or as soon as practicable thereafter, (A) the Cash Amount, and (B) its Pro Rata Allocation of 5.0% of the Distributable Equity (or, to the extent that Class J votes to accept the Plan pursuant to section 1126(d) of the Bankruptcy Code, its Pro Rata Allocation of 4.8% of the Distributable Equity). |
(ii) | Rights Offering Sub PlanEligible Holders: Except to the extent that an Eligible Holder of an Allowed Class F Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every applicable Allowed Class F Claim, each such Eligible Holder of an Allowed Class F Claim shall receive its Pro Rata Allocation of: (A) the Subscription Rights and (B) on the Effective Date, or as soon as practicable thereafter, 5.0% of the Distributable Equity (or, to the extent that Class J votes to accept the Plan pursuant to section 1126(d) of the Bankruptcy Code, its Pro Rata Allocation of 4.8% of the Distributable Equity). | ||
(iii) | Claims Conversion Sub Plan: Except to the extent that a holder of an Allowed Class F Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class F Claim, each such holder of an Allowed Class F Claim shall receive on the Effective Date, or as soon as practicable thereafter, its Pro Rata portion of 9.0% of the Distributable Equity. |
d. | Voting: Class F is Impaired and holders of Allowed Class F Claims are entitled to vote to accept or reject the Plan. |
7. | Class G 12.25% Senior Notes Claims |
a. | Classification: Class G consists of the 12.25% Senior Notes Claims. |
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b. | Allowance: On the Effective Date, the 12.25% Senior Notes Claims shall be Allowed in the aggregate amount of $202.36 million. | ||
c. | Treatment: Holders of Allowed Class G Claims will receive the following treatment under the Rights Offering Sub Plan and the Claims Conversion Sub Plan, respectively: |
(i) | Rights Offering Sub PlanNon-Eligible Holders: Except to the extent that a Non-Eligible Holder of an Allowed Class G Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every applicable Allowed Class G Claim, each such Non-Eligible Holder of an Allowed Class G Claim shall receive on the Effective Date, or as soon as practicable thereafter: |
(A) | the Cash Amount; | ||
(B) | its Pro Rata Allocation of 5.0% of the Distributable Equity (or, to the extent that Class J votes to accept the Plan pursuant to section 1126(d) of the Bankruptcy Code, its Pro Rata Allocation of 4.8% of the Distributable Equity); and | ||
(C) | its Pro Rata portion of the Guaranty Equity Amount. |
(ii) | Rights Offering Sub PlanEligible Holders: Except to the extent that an Eligible Holder of an Allowed Class G Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every applicable Allowed Class G Claim, each such Eligible Holder of an Allowed Class G Claim shall receive: |
(A) | its Pro Rata Allocation of the Subscription Rights; | ||
(B) | on the Effective Date, or as soon as practicable thereafter, its Pro Rata Allocation of 5.0% of the Distributable Equity (or, to the extent that Class J votes to accept the Plan pursuant to section 1126(d) of the Bankruptcy Code, its Pro Rata Allocation of 4.8% of the Distributable Equity); and | ||
(C) | on the Effective Date, or as soon as practicable thereafter, its Pro Rata portion of the Guaranty Equity Amount. |
(iii) | Claims Conversion Sub Plan: Except to the extent that a holder of an Allowed Class G Claim agrees to a less favorable treatment, in |
30
full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class G Claim, each such holder of an Allowed Class G Claim shall receive on the Effective Date, or as soon as practicable thereafter, its Pro Rata portion of 6.0% of the Distributable Equity. |
Under either of the Rights Offering Sub Plan or the Claims Conversion Sub Plan, the consideration provided under this ARTICLE III.C.7.c shall be the sole source of recovery for the Allowed Class G Claims, and holders of Class G Claims shall have no recourse against any non-Debtor Affiliates and shall have been deemed to waive any and all claims against any non-Debtor Affiliates. |
d. | Voting: Class G is Impaired and holders of Allowed Class G Claims are entitled to vote to accept or reject the Plan. |
8. | Class H General Unsecured Claims |
a. | Classification: Class H consists of all General Unsecured Claims. | ||
b. | Treatment: Except to the extent that a holder of an Allowed Class H Claim agrees to a less favorable treatment, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class H Claim, each holder of an Allowed Class H Claim shall receive on the Effective Date, or as soon as practicable thereafter, Cash equal to (i) the lesser of (A) its Pro Rata portion of $20.0 million or (B) 100% of the amount of such holders Allowed Class H Claim, if such holders Allowed Class H Claim is held against Visteon International Holdings, Inc. or (ii) if such holders Allowed Class H Claim is held against any other Debtor, the lesser of (A) its Pro Rata portion of $141.0 million or (B) 50% of the amount of such holders Allowed Class H Claim. | ||
c. | Voting: Class H is Impaired and holders of Allowed Class H Claims are entitled to vote to accept or reject the Plan. |
9. | Class I Intercompany Claims |
a. | Classification: Class I consists of all Intercompany Claims. | ||
b. | Treatment: Holders of Allowed Class I Claims shall not receive any distributions on account of such Allowed Class I Claims; provided, however, the Debtors reserve the right to reinstate any or all Allowed Class | ||
I Claims on or after the Effective Date (upon consultation with the Requisite Investors). | |||
c. | Voting: Class I is Unimpaired, and holders of Allowed Class I Claims are conclusively presumed to have accepted the Plan pursuant to section |
31
1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class I Claims are not entitled to vote to accept or reject the Plan. |
10. | Class J Interests in Visteon Corporation |
a. | Classification: Class J consists of all Interests in Visteon Corporation. | ||
b. | Treatment: Holders of Allowed Class J Interests will receive the following treatment under the Rights Offering Sub Plan and the Claims Conversion Sub Plan, respectively: |
(i) | Rights Offering Sub Plan: Allowed Class J Interests are not entitled to receive a distribution and shall be deemed automatically cancelled without further action by the Debtors or Reorganized Debtors and the obligations of the Debtors and Reorganized Debtors thereunder shall be discharged; provided, however, if Class J votes to accept the Plan pursuant to section 1126(d) of the Bankruptcy Code, each holder of an Allowed Class J Interest shall receive, in full and final satisfaction, settlement, release, and discharge of and in exchange for each and every Allowed Class J Interest, on the Effective Date, or as soon as practicable thereafter, its Pro Rata portion of (A) the Old Equity Warrants, and (B) 2.0% of the Distributable Equity, except to the extent that a holder of an Allowed Class J Interest agrees to a less favorable treatment. | ||
(ii) | Claims Conversion Sub Plan: On the Effective Date, Allowed Class J Interests shall be deemed automatically cancelled without further action by the Debtors or Reorganized Debtors and the obligations of the Debtors and Reorganized Debtors thereunder shall be discharged. |
c. | Voting: Class J is Impaired and holders of Allowed Class J Interests are entitled to vote to accept or reject the Plan; provided, however, that if the Debtors proceed to Confirmation with the Claims Conversion Sub Plan such holders would be deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. |
11. | Class K Intercompany Interests |
a. | Classification: Class K consists of all Intercompany Interests. | ||
b. | Treatment: Holders of Allowed Class K Interests shall not receive any distributions on account of such Allowed Class K Interests; provided, however, the Debtors reserve the right to reinstate any or all Allowed Class K Interests on or after the Effective Date. | ||
c. | Voting: Class K is Unimpaired, and holders of Allowed Class K Interests are conclusively presumed to have accepted the Plan pursuant to section |
32
1126(f) of the Bankruptcy Code. Therefore, holders of Allowed Class K Interests are not entitled to vote to accept or reject the Plan. |
12. | Class L Section 510(b) Claims |
a. | Classification: Class L consists of all Section 510(b) Claims. | ||
b. | Treatment: Holders of Allowed Class L Claims shall not receive any distributions on account of such Allowed Class L Claims. On the Effective Date, all Class L Claims shall be discharged. | ||
c. | Voting: Class L is Impaired and holders of Allowed Class L Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, holders of Allowed Class L Claims are not entitled to vote to accept or reject the Plan. |
D. | Special Provision Governing Unimpaired Claims |
Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors or
the Reorganized Debtors rights in respect of any Unimpaired Claim, including all rights in respect
of legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim.
ARTICLE IV.
PROVISIONS FOR IMPLEMENTATION OF THE PLAN
PROVISIONS FOR IMPLEMENTATION OF THE PLAN
A. | General Settlement of Claims and Interests |
Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration
for the classification, distributions, releases, and other benefits provided under the Plan, on the
Effective Date, the provisions of the Plan shall constitute a good-faith compromise and settlement
of all Claims and Interests and controversies resolved pursuant to the Plan.
B. | New Visteon Common Stock |
The issuance of the New Visteon Common Stock by Reorganized Visteon, including options for the
purchase thereof or other equity awards, if any, providing for the issuance of New Visteon Common
Stock, is authorized without the need for any further corporate action or without any further
action by the Debtors or Reorganized Visteon, as applicable. Pursuant to the Plan, the Reorganized
Visteon Charter shall authorize the issuance and distribution on or after the Effective Date of
shares of New Visteon Common Stock to the Distribution Agent for the benefit of holders of Allowed
Claims in each of Classes E, F, and G under the Claims Conversion Sub Plan, and Classes F, G, and,
if applicable, J under the Rights Offering Sub Plan (and as required to satisfy the Debtors
obligations under the Equity Commitment Agreement), subject, in either case, to dilution by the
Management Equity Incentive Program and, if applicable, the Guaranty Equity Amount and the Old
Equity Warrants. All of the shares of New
33
Visteon Common Stock issued pursuant to the Plan shall be duly authorized, validly issued,
fully paid, and non-assessable.
C. | Registration Exemptions |
The offering, issuance, and distribution of any Securities pursuant to the Plan and any and
all settlement agreements incorporated therein will be exempt from the registration requirements of
section 5 of the Securities Act pursuant to section 1145 of the Bankruptcy Code, section 4(2) of
the Securities Act, or any other available exemption from registration under the Securities Act, as
applicable. In addition, under section 1145 of the Bankruptcy Code, if applicable, any Securities
issued pursuant to the Plan and any and all settlement agreements incorporated therein will be
freely transferable under the Securities Act by the recipients thereof, subject to (1) the
provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an
underwriter in section 2(a)(11) of the Securities Act, and compliance with any applicable state or
foreign securities laws, if any, and the rules and regulations of the United States Securities and
Exchange Commission, if any, applicable at the time of any future transfer of such Securities or
instruments, (2) the restrictions, if any, on the transferability of such Securities and
instruments, including restrictions contained in the Equity Commitment Agreement, and (3) any other
applicable regulatory approval.
Certain holders of New Visteon Common Stock pursuant to ARTICLE III.C will be entitled to
customary registration rights and shall be subject to customary transfer restrictions following a
public offering of the New Visteon Common Stock, in accordance with the terms and conditions of a
registration rights agreement by and among Reorganized Visteon and such holders. Under the Claims
Conversion Sub Plan, Reorganized Visteon shall use its commercially reasonable efforts to obtain
approval of the New Visteon Common Stock for listing on the New York Stock Exchange as soon as
reasonably practicable. Under the Rights Offering Sub Plan, Reorganized Visteon shall not, until
the earlier of the date that (1) is the three month anniversary of the Effective Date and (2) the
Securities and Exchange Commission declares effective a shelf registration statement in connection
with the resale of New Visteon Common Stock, list such stock on the New York Stock Exchange, the
Nasdaq Stock Market, or any other national securities exchange unless pursuant to a written request
of the Requisite Investors, in which case Reorganized Visteon shall use commercially reasonable
efforts to list and maintain the listing of the New Visteon Common Stock on the New York Stock
Exchange, the Nasdaq Stock Market, or any other national stock exchange as requested by the
Requisite Investors.
D. | Subordination |
The classification and treatment of all Claims and Interests under the Plan shall conform to
and with the respective contractual, legal, and equitable subordination rights of such Claims and
Interests, and any such rights shall be settled, compromised, and released pursuant to the Plan.
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E. | Vesting of Assets in the Reorganized Debtors |
Except as otherwise provided in the Plan or any agreement, instrument, or other document
incorporated in the Plan, on the Effective Date, all property in each Estate, all Causes of Action,
and any property acquired by any of the Debtors pursuant to the Plan shall vest in each respective
Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances. On and
after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may
operate its business and may use, acquire, or dispose of property and compromise or settle any
Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and
free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
F. | Cancellation of Notes, Instruments, Certificates and Other Documents |
On the Effective Date, except to the extent otherwise provided, all notes, instruments,
Certificates, and other documents evidencing Claims or Interests shall be cancelled and the
obligations of the Debtors or Reorganized Debtors and the non-Debtor Affiliates thereunder or in
any way related thereto shall be discharged; provided, however, that
notwithstanding Confirmation or the occurrence of the Effective Date, any indenture or agreement
that governs the rights of the holder of a Claim shall continue in effect solely for purposes of
(1) allowing holders to receive distributions under the Plan, and (2) allowing and preserving the
rights of the ABL Facility Administrative Agent, the DIP Facility Administrative Agent, the Term
Loan Facility Administrative Agent, and the Notes Trustee, as applicable, to make distributions on
account of Claims as provided in ARTICLE IX.
G. | Issuance of New Securities; Execution of Plan Documents |
Except as otherwise provided in the Plan or the Equity Commitment Agreement, the Reorganized
Debtors shall issue on the Effective Date all Securities, notes, instruments, Certificates, and
other documents required to be issued pursuant to the Plan.
H. | Acquisition of Assets Held by Oasis Trust |
On the Confirmation Date, Visteon Corporation shall exercise its option under that certain
Master Lease, dated October 31, 2002, as amended, to acquire from Oasis Trust all of its rights,
title, and interests in and to that property located at One Village Center Drive, Van Buren
Township, Wayne County, Michigan 48111, in accordance with the terms of such agreement and the
Plan, and free and clear of all Liens, Claims, charges, or other encumbrances and stamp tax,
transfer tax, and similar taxes pursuant to sections 1123(a)(5)(D), 1141(c), and 1146(a) of the
Bankruptcy Code.
I. | Post-Confirmation Property Sales |
To the extent the Debtors or Reorganized Debtors, as applicable, purchase or sell any property
prior to or including the date that is one year after the Confirmation Date, the Debtors or
Reorganized Debtors, as applicable, may elect to purchase or sell such property pursuant to
sections 363, 1123(a)(5)(D), 1141(c), and 1146(a) of the Bankruptcy Code.
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J. | Corporate Action |
Each of the matters provided for by the Plan involving the corporate structure of the Debtors
or corporate or related actions to be taken by or required of the Reorganized Debtors, whether
taken prior to or as of the Effective Date, shall be authorized without the need for any further
corporate action or without any further action by the Debtors or the Reorganized Debtors, as
applicable. Such actions may include (1) the adoption and filing of the Reorganized Visteon
Charter and Reorganized Visteon Bylaws, (2) the appointment of the New Board, (3) the adoption and
implementation of the Management Equity Incentive Program, (4) the authorization, issuance and
distribution of the New Visteon Common Stock, including, if applicable, pursuant to the Rights
Offering, and other Securities to be authorized, issued and distributed pursuant to the Plan, and
(5) the consummation and implementation of the Exit Financing.
K. | Certificate of Incorporation and Bylaws |
The certificates of incorporation and bylaws (or other formation documents relating to limited
liability companies, limited partnerships, or other forms of Entity) of the Debtors (other than
Visteon Corporation) shall be amended in a form as may be required to be consistent with the
provisions of the Plan, and the Bankruptcy Code. Under the Claims Conversion Sub Plan, the
certificate of incorporation and bylaws of Visteon Corporation shall be amended as may be required
to be consistent with the provisions of the Plan, and the Bankruptcy Code, and the form and
substance of the Reorganized Visteon Charter and Reorganized Visteon Bylaws shall be included in
the Plan Supplement. Under the Rights Offering Sub Plan, the certificate of incorporation and
bylaws of Visteon Corporation shall be as set forth in the Reorganized Visteon Charter and
Reorganized Visteon Bylaws. Under either the Claims Conversion Sub Plan or Rights Offering Sub
Plan, the Reorganized Visteon Charter will among other things, (1) authorize the issuance of the
shares of New Visteon Common Stock; and (2) pursuant to and only to the extent required by section
1123(a)(6) of the Bankruptcy Code, include a provision prohibiting the issuance of non-voting
Equity Securities.
After the Effective Date, each Reorganized Debtor may amend and restate its certificate of
incorporation and other constituent documents as permitted by the laws of its respective states,
provinces, or countries of formation and its respective charters and bylaws.
L. | Effectuating Documents, Further Transactions |
On and after the Effective Date, the Reorganized Debtors, and the officers and members of the
boards of directors thereof, are authorized to and may issue, execute, deliver, file, or record
such contracts, Securities, instruments, releases, and other agreements or documents and take such
actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms
and conditions of the Plan and the Securities issued pursuant to the Plan in the name of and on
behalf of the Reorganized Debtors, without the need for any approvals, authorizations, or consents
except for those expressly required pursuant to the Plan.
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M. | Section 1146(a) Exemption |
Pursuant to section 1146(a) of the Bankruptcy Code, any transfers of property pursuant to the
Plan shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or
similar tax, mortgage tax, stamp act, real estate transfer tax, mortgage recording tax, or other
similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate
state or local governmental officials or agents shall forgo the collection of any such tax or
governmental assessment and accept for filing and recordation any of the foregoing
instruments or other documents without the payment of any such tax, recordation fee, or
governmental assessment.
N. | Directors and Officers of Reorganized Visteon |
On the Effective Date, the term of the current members of the board of directors of Visteon
Corporation shall expire, and the New Board shall be appointed. The existing officers of Visteon
Corporation shall serve in their current capacities in Reorganized Visteon. On and after the
Effective Date, each director or officer of Reorganized Visteon shall serve pursuant to the terms
of the Reorganized Visteon Charter, the Reorganized Visteon Bylaws, or other constituent documents,
and applicable state corporation law; provided, under the Claims Conversion Sub Plan,
subject to the Reorganized Visteon Bylaws relating to the filling of vacancies on the New Board,
the members of the New Board as constituted on the Effective Date will continue to serve at least
until the first annual meeting of stockholders after the Effective Date, which meeting shall not
take place until at least 12 months after the Effective Date; provided further,
under the Rights Offering Sub Plan, the members of the New Board as constituted on the Effective
Date will continue to serve for a period after the Effective Date as set forth in the Board
Selection Term Sheet.
O. | Directors and Officers of Reorganized Debtors Other Than Visteon Corporation |
Unless otherwise provided in the Debtors disclosure pursuant to section 1129(a)(5) of the
Bankruptcy Code, the officers and directors of each of the Debtors other than Visteon Corporation
shall continue to serve in their current capacities after the Effective Date. The classification
and composition of the boards of directors of the Reorganized Debtors other than Reorganized
Visteon shall be consistent with their respective new certificates of incorporation and bylaws.
Each such director or officer shall serve from and after the Effective Date pursuant to the terms
of such new certificate of incorporation, bylaws, other constituent documents, and applicable state
corporation law. In accordance with section 1129(a)(5) of the Bankruptcy Code, the identities and
affiliations of any Person proposed to serve as an officer or director of the Reorganized Debtors
other than Reorganized Visteon shall have been disclosed at or before the Confirmation Hearing.
P. | Employee Benefits and Incentive Plans |
Unless otherwise specified in this ARTICLE IV.P, and except in connection and not inconsistent
with those employee benefit and incentive programs that shall be treated, without further action of
the Reorganized Debtors or the New Board, as set forth in the Management Equity Incentive Program
Term Sheet and the Employee Benefit and Incentive Programs Term
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Sheet attached to the Equity
Commitment Agreement, on and after the Effective Date, subject to any Final Order, the Reorganized
Debtors shall have the sole discretion to (1) amend, adopt, assume, and/or honor, in the ordinary
course of business or as otherwise provided for herein, any contracts, agreements, policies,
programs, including the Incentive Program, and plans for, among other things, compensation,
pursuant to the terms thereof or hereof, including any incentive plan, as applicable, including
health care benefits, disability benefits, deferred compensation benefits, savings, severance
benefits, retirement benefits, welfare benefits, workers compensation benefits, life insurance,
and accidental death and dismemberment insurance for the directors,
officers, and employees of any of the Debtors who served in such capacity from and after the
Petition Date, and (2) honor, in the ordinary course of business, Claims of employees employed as
of the Effective Date for accrued vacation time arising prior to the Petition Date.
As of the Effective Date, the Reorganized Debtors shall continue the Pension Plans in
accordance with, and subject to, their terms, ERISA, and the Internal Revenue Code, and shall
preserve all of their rights thereunder. All Proofs of Claim filed on account of Claims in
connection with the termination of the Pension Plans shall be deemed disallowed and expunged as of
the Effective Date without any further action of the Debtors or Reorganized Debtors and without any
further action, order, or approval of the Bankruptcy Court. Notwithstanding anything to the
contrary in ARTICLE IV.P of the Plan, no provision in the Plan or the Confirmation Order, or
proceeding within the Chapter 11 Cases, shall in any way be construed as discharging, releasing, or
relieving the Debtors, the Reorganized Debtors, or any other party in any capacity, from any
liability with respect to the Pension Plans under any law, governmental policy, or regulatory
provision, including for breach of fiduciary duty.
On and after the Effective Date, and in accordance with applicable law and administrative
requirements, the Reorganized Debtors shall have no liability for OPEB and shall have no obligation
to provide or offer OPEB to their employees and retirees and their spouses, surviving spouses,
dependents or other beneficiaries. The cessation shall be administered on a claims incurred
basis, and the Reorganized Debtors shall retain responsibility for all claims incurred but either
unfiled or unpaid as of the date of cessation of the OPEB.
Q. | Employment Agreement & Change in Control Agreements |
Reorganized Visteon shall be authorized to enter into that certain employment agreement with
Donald J. Stebbins delivered by the Debtors to the Requisite Parties on the date of the filing of
the Plan with the Bankruptcy Court, effective as of the Effective Date, without any further action,
order, or approval of the New Board or the Bankruptcy Court, as applicable. Also, on the Effective
Date, Reorganized Visteon shall adopt, approve, and authorize change in control agreements with
respect to certain of Reorganized Visteons officers, in the form delivered by the Debtors to the
Requisite Parties on the date of the filing of the Plan with the Bankruptcy Court, without further
action, order, or approval of the New Board.
R. | Intercompany Account Settlement |
The Debtors and the Reorganized Debtors, and their respective Affiliates, will be entitled to
transfer funds between and among themselves as they determine to be necessary or appropriate to
enable the Reorganized Debtors to satisfy their obligations under the Plan. Except
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as set forth herein, any changes in intercompany account balances resulting from such transfers will be
accounted for and settled in accordance with the Debtors historical intercompany account
settlement practices and will not violate the terms of the Plan.
S. | Preservation of Rights of Action |
Unless any Causes of Action against an Entity are expressly waived, relinquished, exculpated,
released, compromised, or settled in the Plan or a Final Order, in accordance with section 1123(b)
of the Bankruptcy Code, the Reorganized Debtors shall retain and may enforce
all rights to commence and pursue, as appropriate, any and all Causes of Action, whether
arising before or after the Petition Date, including any actions specifically enumerated in the
Plan Supplement, and the Reorganized Debtors rights to commence, prosecute, or settle such Causes
of Action shall be preserved notwithstanding the occurrence of the Effective Date. The Reorganized
Debtors may pursue such Causes of Action, as appropriate, in accordance with the best interests of
the Reorganized Debtors. No Entity may rely on the absence of a specific reference in the Plan,
the Plan Supplement, or the Disclosure Statement to any Cause of Action against them as any
indication that the Debtors or the Reorganized Debtors will not pursue any and all available Causes
of Action against them. The Debtors and the Reorganized Debtors expressly reserve all rights to
prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided
in the Plan. Unless any Causes of Action against an Entity are expressly waived, relinquished,
exculpated, released, compromised, or settled in the Plan or a Bankruptcy Court order, the
Reorganized Debtors expressly reserve all Causes of Action, for later adjudication, and, therefore
no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue
preclusion, claim preclusion, estoppel (judicial, equitable or otherwise), or laches, shall apply
to such Causes of Action upon, after, or as a consequence of the Confirmation or Consummation.
The Reorganized Debtors reserve and shall retain the foregoing Causes of Action
notwithstanding the rejection of any Executory Contract or Unexpired Lease during the Chapter 11
Cases or pursuant to the Plan. In accordance with section 1123(b)(3) of the Bankruptcy Code, any
Causes of Action that a Debtor may hold against any Entity shall vest in the Reorganized Debtors.
The applicable Reorganized Debtor, through its authorized agents or representatives, shall retain
and may exclusively enforce any and all such Causes of Action. The Reorganized Debtors shall have
the exclusive right, authority, and discretion to determine and to initiate, file, prosecute,
enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of
Action and to decline to do any of the foregoing without the consent or approval of any third party
or any further notice to or action, order, or approval of the Bankruptcy Court.
T. | Restructuring Transactions |
On or prior to the Effective Date, the Debtors or the Reorganized Debtors may enter into the
following transactions and take any actions as may be necessary or appropriate to effect a
corporate restructuring of their respective businesses or a corporate restructuring of the overall
corporate structure of the Reorganized Debtors, as and to the extent provided therein, with the
consent of the Requisite Parties. The Restructuring Transactions may include the VIHI
Restructuring (to which the Requisite Investors shall be deemed to have consented by virtue of
their execution of the Equity Commitment Agreement, but subject to the terms and conditions
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thereof), one or more inter-company mergers, consolidations, amalgamations, arrangements,
continuances, restructurings, conversions, dissolutions, transfers, liquidations, or other
corporate transactions as may be determined by the Debtors or the Reorganized Debtors, as
applicable, to be necessary or appropriate. The actions to effect the Restructuring Transactions
may include: (1) the execution and delivery of appropriate agreements or other documents of merger,
amalgamation, consolidation, restructuring, conversion, disposition, transfer, arrangement,
continuance, dissolution, sale, purchase, or liquidation containing terms that are consistent with
the terms of the Plan and the Equity Commitment Agreement and that satisfy the requirements of
applicable law and any other terms to which the relevant entities may agree; (2) the execution
and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of
any asset, property, right, liability, debt, or obligation on terms consistent with the terms of
the Plan and the Equity Commitment Agreement and having other terms for which the applicable
parties agree; (3) the filing of appropriate certificates or articles of incorporation,
reincorporation, merger, consolidation, conversion, amalgamation, arrangement, continuance, or
dissolution pursuant to applicable state or provincial law; (4) pledging, granting of liens or
security interests over, assuming or guarantying obligations or taking such similar actions as may
be necessary to preserve the rights and collateral interests of the secured creditors of the
Debtors and their subsidiaries at all times prior to the effectiveness and consummation of the
Plan; and (5) all other actions that the applicable entities determine to be necessary or
appropriate, including making filings or recordings that may be required by applicable law in
connection with the Restructuring Transactions.
U. | Post-Effective Date Financing |
Unless otherwise refinanced in connection with the Exit Financing, notwithstanding any
provision in the Plan to the contrary or section 1141(c) of the Bankruptcy Code, the U.S. Bank L/C
Facility Documents and the Currency Contracts, and all rights and obligations of, and Liens held
by, the parties thereunder in connection therewith, shall survive and remain in full force and
effect on and after the Effective Date in accordance with the terms of the U.S. Bank L/C Facility
Documents and Currency Contracts, respectively, and the Final Orders entered on November 12, 2009
in connection therewith [Docket Nos. 1296 and 1297]. On the Effective Date, any and all rights and
obligations of the Debtors under the U.S. Bank L/C Facility Documents and the Currency Contracts
shall vest in, or become the obligations of, the applicable Reorganized Debtors.
V. | Corporate Existence |
Except as otherwise provided in the Plan, each Debtor shall continue to exist after the
Effective Date as a separate corporate Entity, limited liability company, partnership, or other
form, as the case may be, with all the powers of a corporation, limited liability company,
partnership, or other form, as the case may be, pursuant to the applicable law in the jurisdiction
in which each applicable Debtor is incorporated or formed and pursuant to the respective
certificate of incorporation and bylaws (or other formation documents) in effect prior to the
Effective Date, except to the extent such certificate of incorporation and bylaws (or other
formation documents) are amended by the Plan or otherwise, and to the extent such documents are
amended, such documents are deemed to be amended pursuant to the Plan and without any further
notice to or action, order, or approval of the Bankruptcy Court or any other court of
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competent jurisdiction (other than any requisite filings required under applicable state, provincial, or
federal law).
W. | Tax Reporting Matters |
All parties (including the Reorganized Debtors and holders of Claims and Interests) shall
report for all federal income tax purposes in a manner consistent with the Plan.
ARTICLE V.
RIGHTS OFFERING
A. | Election Form |
In accordance with the terms of the Rights Offering Procedures, the Debtors will deliver an
Election Form to each holder of an Allowed Senior Notes Claim to determine which holders will be
considered Eligible Holders and which holders will be considered Non-Eligible Holders. To
determine that a holder is an Eligible Holder, such holder must, in accordance with the terms set
forth in the Election Form, validly complete and return an Election Form by the Election Form
Deadline certifying that such holder is an Accredited Investor. To determine that a holder is a
Non-Eligible Holder, such holder must, in accordance with the terms set forth in the Election Form,
validly complete and return an Election Form by the Election Form Deadline certifying that such
holder is not an Accredited Investor. Only Eligible Holders shall be permitted to participate in
the Rights Offering. Only Non-Eligible Holders shall be permitted to receive the Cash Amount.
B. | Issuance of Subscription Rights |
Each Eligible Holder shall receive Subscription Rights entitling such holder to purchase up to
its Pro Rata Allocation of the Rights Offering Shares. Each Eligible Holder shall have the right,
but not the obligation, to participate in the Rights Offering as set forth herein and in the Rights
Offering Procedures.
C. | Oversubscription Rights |
Each Eligible Holder that validly exercises in full its Subscription Rights shall be entitled
to elect on the Subscription Form to purchase Rights Offering Shares not otherwise subscribed for
pursuant to validly exercised Subscription Rights by indicating the number of such unsubscribed
shares such Eligible Holder desires to purchase, as set forth herein and in the Rights Offering
Procedures, and subject to the terms of the Equity Commitment Agreement.
D. | Transfer Restriction |
The Subscription Rights and the Oversubscription Rights are not transferable. Any attempted
transfer is null and void and the Debtors will not treat any purported transferee as the holder of
any Subscription Right or, if applicable, Oversubscription Right. The Subscription Rights and the
Oversubscription Rights shall not be listed or quoted on any public or over-the-counter securities
exchange or quotation system.
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E. | Subscription Period and Mailing |
The Rights Offering shall commence for each Eligible Holder upon its receipt of the
Subscription Form and shall end on the Subscription Expiration Date, unless extended by Visteon
Corporation with the reasonable consent of the Requisite Investors. As soon as practicable after
the Election Form Deadline, Eligible Holders will be mailed Subscription Forms
together with instructions for the proper completion, due execution, and timely delivery of
such Subscription Forms, as well as instructions for payment.
F. | Exercise of Subscription Rights and Oversubscription Rights |
Except as provided for in the Equity Commitment Agreement, each Eligible Holder may exercise
all or any portion of such holders Subscription Rights and, if applicable, Oversubscription
Rights, pursuant to the Subscription Form. To exercise its Subscription Rights and, if applicable,
Oversubscription Rights, an Eligible Holder must: (1) return a validly completed Subscription Form
to the Rights Offering Agent so that such Subscription Form is actually received by the Rights
Offering Agent on or before the Subscription Expiration Date and (2) pay to the Rights Offering
Agent on or before the Subscription Expiration Date the Purchase Price multiplied by the number of
shares of New Visteon Common Stock such Eligible Holder has elected to purchase pursuant to its
Subscription Rights and its Oversubscription Rights, in accordance with the wire instructions set
forth on the Subscription Form.
If the Rights Offering Agent for any reason does not receive on or prior to the Subscription
Expiration Date both a validly completed Subscription Form and immediately available funds as set
forth in this ARTICLE V.F from an Eligible Holder, such Eligible Holder shall be deemed to have
relinquished and waived its right to participate in the Rights Offering. The Debtors shall not be
obligated to honor any purported exercise of Subscription Rights or Oversubscription Rights
received by the Rights Offering Agent after the Subscription Expiration Date, regardless of when
the documents relating to such exercise were sent. Once the Eligible Holder has validly exercised
its Subscription Rights and, if applicable, Oversubscription Rights, such exercise will not be
permitted to be revoked, rescinded, or modified.
The payments made in accordance with the Rights Offering shall be deposited and held by the
Rights Offering Agent in an escrow account. The Rights Offering Agent will maintain such account
for the purpose of holding the money for administration of the Rights Offering until the Effective
Date or such other later date at the option of the Reorganized Debtors. The Rights Offering Agent
shall not use such funds for any other purpose and shall not encumber or permit such funds to be
encumbered with any Lien or similar encumbrance. Such funds shall be held in such escrow account
and disbursed only in accordance with the procedures described in this ARTICLE V, the Rights
Offering Procedures, and the Equity Commitment Agreement.
The Debtors may adopt such additional detailed procedures consistent with the provisions of
this ARTICLE V.F, the Rights Offering Procedures, and the Equity Commitment Agreement to more
efficiently administer the exercise of the Subscription Rights, and, if applicable,
Oversubscription Rights.
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G. | Direct Commitment |
The Investors shall be obligated to consummate the Direct Commitment on the terms and subject
to the conditions of the Equity Commitment Agreement.
H. | Backstop Commitment |
The Investors shall be obligated to consummate their Backstop Commitment with respect to
unsubscribed Rights Offering Shares on the terms and subject to the conditions set forth in the
Equity Commitment Agreement. The Investors shall for the benefit of Reorganized Visteon deliver to
Visteon Corporation, in accordance with section 7.7 of the Equity Commitment Agreement, on the
later of the date that is (1) ten Business Days prior to the date scheduled for the Confirmation
Hearing and (2) five Business Days after delivery of the Purchase Notice funding approval
certificates.
I. | Debtors Obligations under the Claims Conversion Sub Plan |
Notwithstanding any provision in the Plan, the Plan Support Agreements, the Equity Commitment
Agreement, or the Rights Offering Procedures to the contrary, the Debtors shall not be obligated
under the Claims Conversion Sub Plan to, and shall not, honor any purported exercise of
Subscription Rights or Oversubscription Rights or the satisfaction of the Direct Commitment or
Backstop Commitment.
J. | Issuance of Rights Offering Shares |
Under the Rights Offering Sub Plan, Rights Offering Shares purchased by Eligible Holders shall
be issued on the Effective Date and distributed on the Effective Date or as soon as practicable
thereafter.
If the number of Rights Offering Shares elected for purchase pursuant to Oversubscription
Rights exceeds the number of unsubscribed Rights Offering Shares, then such unsubscribed Rights
Offering Shares shall be apportioned to Eligible Holders that exercised such Oversubscription
Rights (1) first, to the Lead Investors and their Related Purchasers and their respective
affiliates, (2) second, to the Co-Investors and their Related Purchasers and their respective
affiliates, and (3) last, if any unsubscribed Rights Offering Shares remain unallocated, to the
other Eligible Holders exercising their Oversubscription Rights, in each case pro rata relative to
the number of such shares each such Eligible Holder elected to purchase pursuant to its
Oversubscription Rights and in accordance with section 2.2(e) of the Equity Commitment Agreement.
Any payment made by an Eligible Holder shall be refunded as soon as practicable (1) upon
termination of the Equity Commitment Agreement, (2) if such Eligible Holder has made an
overpayment, in an amount equal to such overpayment, or (3) under the Claims Conversion Sub Plan.
Fractional shares of New Visteon Common Stock shall not be issued upon exercise of the Subscription
Rights or Oversubscription Rights and no compensation shall be paid in respect of such fractional
shares.
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ARTICLE VI.
ENTITLEMENT TO AND FUNDING OF CASH AMOUNT RECOVERIES
A. | Entitlement to Cash Amount Recoveries |
Under the Rights Offering Sub Plan, a Non-Eligible Holder shall be entitled to receive the
Cash Amount only if such Non-Eligible Holder validly completes and returns an Election Form
certifying that it is a Non-Eligible Holder in accordance with the terms set forth in the Election
Form. If a Non-Eligible Holder does not duly satisfy such requirements, such holder shall be
deemed to have relinquished and waived its right to receive the Cash Amount.
B. | Source of Cash for Payment of Cash Amount |
Each Cash Recovery Backstop Investor shall deliver to Visteon Corporation on the later of the
date that is (1) ten Business Days prior to the date scheduled for the Confirmation Hearing and (2)
five Business Days after delivery of the Purchase Notice a funding approval certificate from an
officer or a duly authorized agent of such Cash Recovery Backstop Investor certifying that such
Cash Recovery Backstop Investors credit committee (or such similar governing entity that is
responsible for approving such matters in accordance with such Cash Recovery Backstop Investors
normal operations) has approved, subject only to the terms and conditions of the Rights Offering
Sub Plan in accordance with the Plan, the funding by such Cash Recovery Backstop Investor of its
Distributable Commitment Percentage of (1) the aggregate Cash Amount, and (2) the Purchase Price
multiplied by the number of shares of New Visteon Common Stock constituting the Cash Recovery
Subscription Equity. On the Effective Date, each Cash Recovery Backstop Investor shall pay the
applicable amounts set forth in the immediately preceding sentence to Visteon Corporation by wire
transfer of immediately available funds to an account designated by Visteon Corporation in writing
not less than three Business Days prior to the Effective Date.
Notwithstanding any provision in the Plan, the Plan Support Agreements, or the Equity
Commitment Agreement to the contrary, neither the Debtors nor the Cash Recovery Backstop Investors
shall be obligated under the Claims Conversion Sub Plan to, and shall not, honor any purported
entitlement to the Cash Amount.
C. | Transfer of New Visteon Common Stock as a Consequence of Cash Amount Distributions |
Under the Rights Offering Sub Plan, the Distribution Agent shall on the Effective Date issue,
and shall deliver, on the Effective Date, or as soon as practicable thereafter, to the Cash
Recovery Backstop Investors pro rata relative to their Allotted Portions the Cash Recovery
Subscription Equity.
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ARTICLE VII.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
A. | Rejection of Executory Contracts and Unexpired Leases |
Except as otherwise provided herein, each Executory Contract and Unexpired Lease shall be
deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code as of the
Effective Date, unless any such Executory Contract or Unexpired Lease: (1) is listed on the
schedule of Assumed Executory Contracts and Unexpired Leases in the Plan Supplement; (2) has been
previously assumed by the Debtors by Final Order or has been assumed by the Debtors by order of the
Bankruptcy Court as of the Effective Date, which order becomes a Final Order after the Effective
Date; (3) is the subject of a motion to assume or reject pending as of the Effective Date; (4) is
an Intercompany Contract, unless such Intercompany Contract previously was rejected by the Debtors
pursuant to a Final Order, is the subject of a motion to reject pending on the Effective Date, or
is listed on the schedule of Rejected Executory Contracts and Unexpired Leases in the Plan
Supplement; or (5) is otherwise assumed pursuant to the terms herein.
The Confirmation Order will constitute an order of the Bankruptcy Court approving such
rejections pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date.
Counterparties to Executory Contracts or Unexpired Leases that are deemed rejected as of the
Effective Date shall have the right to assert any Claim on account of the rejection of such
Executory Contracts or Unexpired Leases, including under section 502(g) of the Bankruptcy Code,
subject to compliance with the requirements herein.
Further, the Plan Supplement will contain a schedule of Rejected Executory Contracts and
Unexpired Leases; provided, however, that any Executory Contract and Unexpired
Lease not previously assumed, assumed and assigned, or rejected by an order of the Bankruptcy
Court, and not listed in the schedule of Rejected Executory Contracts and Unexpired Leases will
be rejected on the Effective Date, notwithstanding its exclusion from such schedule.
B. | Assumption of Executory Contracts and Unexpired Leases |
On the Effective Date, the Reorganized Debtors shall assume all of the Executory Contracts and
Unexpired Leases listed on the schedule of Assumed Executory Contracts and Unexpired leases in
the Plan Supplement and otherwise identified for assumption pursuant to ARTICLE VII.A above. With
respect to each such Executory Contract and Unexpired Lease listed on the schedule of Assumed
Executory Contracts and Unexpired Leases in the Plan Supplement, the Debtors shall have designated
a proposed Cure, and the assumption of such Executory Contracts and Unexpired Leases may be
conditioned upon the disposition of all issues with respect to such Cure. The Confirmation Order
shall constitute an order of the Bankruptcy Court approving any such assumptions pursuant to
sections 365(a) and 1123 of the Bankruptcy Code.
1. Modifications, Amendments, Supplements, Restatements, or Other Agreements. Unless
otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed shall
include all modifications, amendments, supplements, restatements, or other agreements that in any
manner affect such Executory Contract or Unexpired Lease, and all rights related thereto, if any,
including all easements, licenses, permits, rights, privileges, immunities,
45
options, rights of first refusal, and any other interests, unless any of the foregoing
agreements has been previously rejected or repudiated or is rejected or repudiated hereunder.
Modifications, amendments, supplements, and restatements to prepetition Executory Contracts
and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not
be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the
validity, priority, or amount of any Claims that may arise in connection therewith.
2. Proofs of Claim Based on Executory Contracts or Unexpired Leases that Have Been
Assumed. Any and all Proofs of Claim based upon Executory Contracts or Unexpired Leases that
have been assumed in the Chapter 11 Cases, including hereunder, except Proofs of Claim asserting
Cures, pursuant to the order approving such assumption, including the Confirmation Order, shall be
deemed disallowed and expunged from the Claims Register as of the Effective Date without any
further notice to or action, order, or approval of the Bankruptcy Court.
C. | Indemnification Obligations |
Each Indemnification Obligation shall be assumed by the applicable Debtor effective as of the
Effective Date, pursuant to sections 365 and 1123 of the Bankruptcy Code, to the extent such
Indemnification Obligation is executory, unless such Indemnification Obligation previously was
rejected by the Debtors pursuant to a Bankruptcy Court order or is the subject of a motion to
reject pending on the Effective Date. The Reorganized Debtors reserve the right to honor or
reaffirm Indemnification Obligations other than those terminated by a prior or subsequent order of
the Bankruptcy Court, whether or not executory, in which case such honoring or reaffirmation shall
be in complete satisfaction, discharge, and release of any Claim on account of such Indemnification
Obligation. Each Indemnification Obligation that is assumed, deemed assumed, honored, or
reaffirmed shall remain in full force and effect, shall not be modified, reduced, discharged,
impaired, or otherwise affected in any way, and shall survive Unimpaired and unaffected,
irrespective of when such obligation arose.
D. | Insurance Policies |
Each insurance policy shall be assumed by the applicable Debtor effective as of the Effective
Date, pursuant to sections 365 and 1123 of the Bankruptcy Code, to the extent such insurance policy
is executory, unless such insurance policy previously was rejected by the Debtors pursuant to a
Bankruptcy Court order, is the subject of a motion to reject pending on the Effective Date, or is
included in the schedule of Rejected Executory Contracts and Unexpired Leases contained in the
Plan Supplement.
E. | Cure of Defaults for Assumed Executory Contracts and Unexpired Leases |
With respect to each of the Executory Contracts or Unexpired Leases listed on the schedule of
Assumed Executory Contracts and Unexpired Leases, the Debtors shall have designated a proposed
Cure, and the assumption of such Executory Contract or Unexpired Lease shall be conditioned upon
the disposition of all issues with respect to Cure. Such Cure shall be satisfied by the Debtors or their assignee, if any, by payment of the Cure in Cash on the
Effective Date or as soon as reasonably practicable thereafter, or on such other terms as may be
ordered by
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the Bankruptcy Court or agreed upon by the parties to the applicable Executory Contract
or Unexpired Lease without any further notice to or action, order, or approval of the Bankruptcy
Court. Any provisions or terms of the Executory Contracts or Unexpired Leases to be assumed
pursuant to the Plan that are, or may be, alleged to be in default, shall be satisfied solely by
Cure, or by an agreed-upon waiver of Cure.
Prior to the Confirmation Hearing, the Debtors shall file with the Bankruptcy Court and serve
upon counterparties to such Executory Contracts and Unexpired Leases a notice of the proposed
assumption that will (1) list the applicable Cure, if any, (2) describe the procedures for filing
objections to the proposed assumption or Cure, and (3) explain the process by which related
disputes will be resolved by the Bankruptcy Court. Except with respect to Executory Contracts and
Unexpired Leases in which the Debtors and the applicable counterparties have stipulated in writing
to payment of Cure, all requests for payment of Cure that differ from the amounts proposed by the
Debtors must be filed with the Claims and Solicitation Agent on or before the Cure Bar Date. Any
request for payment of Cure that is not timely filed shall be disallowed automatically and forever
barred, estopped, and enjoined from assertion and shall not be enforceable against any Reorganized
Debtor, without the need for any objection by the Reorganized Debtors or any further notice to or
action, order, or approval of the Bankruptcy Court, and any Cure shall be deemed fully satisfied,
released, and discharged upon payment by the Debtors of the amounts listed on the Debtors proposed
Cure schedule, notwithstanding anything included in the Schedules or in any Proof of Claim to the
contrary; provided, however, that nothing shall prevent the Reorganized Debtors
from paying any Cure despite the failure of the relevant counterparty to file such request for
payment of such Cure. The Reorganized Debtors also may settle any Cure without any further notice
to or action, order, or approval of the Bankruptcy Court.
If the Debtors or Reorganized Debtors, as applicable, object to any Cure or any other matter
related to assumption, the Bankruptcy Court shall determine the Allowed amount of such Cure and any
related issues. If there is a dispute regarding such Cure, the ability of the Reorganized Debtors
or any assignee to provide adequate assurance of future performance within the meaning of section
365 of the Bankruptcy Code, or any other matter pertaining to assumption, then payment of Cure
shall occur as soon as reasonably practicable after entry of a Final Order resolving such dispute,
approving such assumption (and, if applicable, assignment), or as may be agreed upon by the Debtors
or Reorganized Debtors, as applicable, and the counterparty to the Executory Contract or Unexpired
Lease. Any counterparty to an Executory Contract and Unexpired Lease that fails to object timely
to the proposed assumption of any Executory Contract or Unexpired Lease and associated Cure will be
deemed to have consented to such assumption and Cure. The Debtors or Reorganized Debtors, as
applicable, reserve the right either to reject or nullify the assumption of any Executory Contract
or Unexpired Lease after a Final Order determining the Cure or any request for adequate assurance
of future performance required to assume such Executory Contract or Unexpired Lease is made.
Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise
shall result in the full release and satisfaction of any Cures, Claims or defaults, whether
monetary or nonmonetary, including defaults of provisions restricting the change in control or
ownership interest composition or other bankruptcy-related defaults, arising under any
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assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption.
F. | Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases |
Rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall
not constitute a termination of pre-existing obligations owed to the Debtors under such contracts
or leases. In particular, notwithstanding any nonbankruptcy law to the contrary, the Reorganized
Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a
counterparty to provide, warranties or continued maintenance obligations on goods previously
purchased by the contracting Debtors or Reorganized Debtors, as applicable, from counterparties to
rejected or repudiated Executory Contracts.
G. | Claims Based on Rejection of Executory Contracts or Unexpired Leases |
Unless otherwise provided by a Bankruptcy Court order, any Proofs of Claim asserting Claims
arising from the rejection of the Executory Contracts and Unexpired Leases pursuant to the Plan or
otherwise must be filed with the Claims and Solicitation Agent no later than 30 days after the
later of the Effective Date or the effective date of rejection. Any Proofs of Claim arising from
the rejection of the Executory Contracts or Unexpired Leases that are not timely filed shall be
disallowed automatically and forever barred, estopped, and enjoined from assertion and shall not be
enforceable against any Reorganized Debtor, without the need for any objection by the Reorganized
Debtors or any further notice to or action, order, or approval of the Bankruptcy Court, and any
Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed
fully satisfied, released, and discharged, notwithstanding anything in the Schedules or a Proof of
Claim to the contrary. All Allowed Claims arising from the rejection of the Executory Contracts
and Unexpired Leases shall be classified as Other General Unsecured Claims against the applicable
Debtor counterparty thereto.
H. | Contracts, Intercompany Contracts, and Leases Entered Into After the Petition Date |
Contracts, Intercompany Contracts, and leases entered into after the Petition Date by any
Debtor, and any Executory Contracts and Unexpired Leases assumed by any Debtor, may be performed by
the applicable Reorganized Debtor in the ordinary course of business.
I. | Reservation of Rights |
Neither the exclusion nor inclusion of any contract or lease in the Plan Supplement, nor
anything contained in the Plan, shall constitute an admission by the Debtors that any such contract
or lease is in fact an Executory Contract or Unexpired Lease or that any Reorganized Debtor has any
liability thereunder. If there is a dispute regarding whether a contract or lease is or was
executory or unexpired at the time of assumption or rejection, the Debtors or Reorganized
Debtors, as applicable, shall have 45 days following entry of a Final Order resolving such
dispute to alter their treatment of such contract or lease.
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ARTICLE VIII.
PROCEDURES FOR RESOLVING DISPUTED CLAIMS AND INTERESTS
A. | Allowance of Claims and Interests |
After the Effective Date, each Reorganized Debtor shall have and retain any and all rights and
defenses such Debtor had with respect to any Claim or Interest immediately prior to the Effective
Date, including the Causes of Action retained pursuant to ARTICLE IV.S, except with respect to any
Claim or Interest deemed Allowed under the Plan. Except as expressly provided in the Plan or in
any order entered in the Chapter 11 Cases prior to the Effective Date (including the Confirmation
Order), no Claim or Interest shall become an Allowed Claim or Interest unless and until such Claim
or Interest is deemed Allowed or the Bankruptcy Court has entered a Final Order, including the
Confirmation Order, in the Chapter 11 Cases allowing such Claim or Interest. All settled claims
approved prior to the Effective Date pursuant to a Final Order of the Bankruptcy Court, pursuant to
Bankruptcy Rule 9019 or otherwise shall be binding on all parties.
B. | Claims and Interests Administration Responsibilities |
Except as otherwise specifically provided in the Plan, after the Effective Date, the
Reorganized Debtors shall have the sole authority (1) to file, withdraw, or litigate to judgment,
objections to Claims or Interests, (2) to settle or compromise any Disputed Claim without any
further notice to or action, order, or approval by the Bankruptcy Court, and (3) to administer and
adjust the Claims Register to reflect any such settlements or compromises without any further
notice to or action, order, or approval by the Bankruptcy Court.
C. | Estimation of Claims and Interests |
Before or after the Effective Date, the Debtors or Reorganized Debtors, as applicable, may
(but are not required to) at any time request that the Bankruptcy Court estimate any Disputed Claim
that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any
reason, regardless of whether any party previously has objected to such Claim or Interest or
whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain
jurisdiction to estimate any such Claim or Interest, including during the litigation of any
objection to any Claim or Interest or during the appeal relating to such objection. In the event
that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that
estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes
under the Plan (including for purposes of distributions), and the relevant Reorganized Debtor may
elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim
or Interest.
D. | Expungement or Adjustment to Paid, Satisfied, or Superseded Claims and Interests |
Any Claim or Interest that has been paid, satisfied, or superseded, or any Claim or Interest
that has been amended or superseded, may be adjusted or expunged on the Claims Register by the
Reorganized Debtors without a claims objection having to be filed and without any further notice to
or action, order, or approval of the Bankruptcy Court.
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E. | No Interest |
Unless otherwise specifically provided for in the Plan, required under applicable bankruptcy
law, or agreed to by the Debtors, the Confirmation Order, or a postpetition agreement in writing
between the Debtors and a holder of a Claim, postpetition interest shall not accrue or be paid on
Claims, and no holder of a Claim shall be entitled to interest accruing on or after the Petition
Date on any Claim or right. Additionally, and without limiting the foregoing, interest shall not
accrue or be paid on any Disputed Claim with respect to the period from the Effective Date to the
date a final distribution is made on account of such Disputed Claim, if and when such Disputed
Claim becomes an Allowed Claim.
F. | Disallowance of Claims or Interests |
EXCEPT AS OTHERWISE AGREED, ANY AND ALL PROOFS OF CLAIM FILED AFTER THE APPLICABLE DEADLINE
FOR FILING SUCH PROOFS OF CLAIM SHALL BE DEEMED DISALLOWED AND EXPUNGED AS OF THE EFFECTIVE DATE
WITHOUT ANY FURTHER NOTICE TO OR ACTION, ORDER, OR APPROVAL OF THE BANKRUPTCY COURT, AND HOLDERS OF
SUCH CLAIMS MAY NOT RECEIVE ANY DISTRIBUTIONS ON ACCOUNT OF SUCH CLAIMS, UNLESS SUCH LATE PROOF OF
CLAIM IS DEEMED TIMELY FILED BY A FINAL ORDER OF THE BANKRUPTCY COURT ON OR BEFORE THE LATER OF (1)
THE CONFIRMATION HEARING AND (2) 45 DAYS AFTER THE APPLICABLE DEADLINE FOR FILING SUCH PROOFS OF
CLAIM.
All Claims of any Entity from which property is sought by the Debtors under section 542, 543,
550, or 553 of the Bankruptcy Code or that the Debtors or the Reorganized Debtors allege is a
transferee of a transfer that is avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549,
or 724(a) of the Bankruptcy Code shall be disallowed if (1) the Entity, on the one hand, and the
Debtors or the Reorganized Debtors, on the other hand, agree or the Bankruptcy Court has determined
by Final Order that such Entity or transferee is liable to turn over any property or monies under
any of the aforementioned sections of the Bankruptcy Code and (2) such Entity or transferee has
failed to turn over such property by the date set forth in such agreement or Final Order.
G. | Amendments to Claims |
On or after the Effective Date, except as otherwise provided herein, a Claim may not be filed
or amended without the prior authorization of the Bankruptcy Court or the Reorganized Debtors, and,
to the extent such prior authorization is not received, any such new or amended
Claim filed shall be deemed disallowed in full and expunged without any further notice to or
action, order, or approval of the Bankruptcy Court.
H. | No Distributions Pending Allowance |
If an objection to a Claim or Interest or portion thereof is filed prior to the Effective
Date, no payment or distribution provided under the Plan shall be made on account of such Claim or
Interest or portion thereof, as applicable, unless and until such Disputed Claim becomes an Allowed
Claim or Interest.
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I. | Distributions After Allowance |
To the extent that a Disputed Claim ultimately becomes an Allowed Claim or Interest,
distributions, if any, shall be made to the holder of such Allowed Claim or Interest in accordance
with the provisions of the Plan. As soon as practicable after the date that the order or judgment
of the Bankruptcy Court allowing any Disputed Claim becomes a Final Order, the Distribution Agent
shall provide to the holder of such Claim or Interest the distribution, if any, to which such
holder is entitled under the Plan as of the Effective Date, without any interest to be paid on
account of such Claim or Interest unless required under applicable bankruptcy law.
ARTICLE IX.
PROVISIONS GOVERNING DISTRIBUTIONS
A. | Distributions on Account of Claims Allowed as of the Effective Date |
1. Delivery of Distributions in General. Except as otherwise provided in the Plan, a
Final Order, or as otherwise agreed to by the relevant parties on the Distribution Date, the
Distribution Agent shall make initial distributions under the Plan on account of Claims and
Interests Allowed on or before the Effective Date, subject to the Reorganized Debtors right to
object to Claims; provided, however, that (a) Allowed Administrative Claims with
respect to liabilities incurred by the Debtors in the ordinary course of business during the
Chapter 11 Cases or assumed by the Debtors prior to the Effective Date shall be paid or performed
in the ordinary course of business in accordance with the terms and conditions of any controlling
agreements, course of dealing, course of business, or industry practice, and (b) Allowed Priority
Tax Claims and Allowed Secured Tax Claims shall be paid in full in Cash on the Distribution Date or
in installment payments over a period not more than five years after the Petition Date pursuant to
section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim or
Allowed Secured Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in
full in Cash in accordance with the terms of any agreement between the Debtors and the holder of
such Claim, or as may be due and payable under applicable non-bankruptcy law or in the ordinary
course of business.
2. Delivery of Distributions on account of DIP Facility Claims. The DIP Facility
Administrative Agent shall be deemed to be the holder of all DIP Facility Claims, as applicable,
for purposes of distributions to be made hereunder, and the Distribution Agent shall make all
distributions on account of such DIP Facility Claims to or on behalf of the DIP Facility
Administrative Agent. The DIP Facility Administrative Agent shall hold or direct such
distributions for the benefit of the holders of Allowed DIP Facility Claims, as applicable. The
DIP Facility Administrative Agent shall arrange to deliver such distributions to or on behalf of
such holders of Allowed DIP Facility Claims; provided, however, the DIP Facility
Administrative Agent shall retain all rights as administrative agent under the DIP Facility Credit
Agreement in connection with delivery of distributions to DIP Facility Lenders; and
provided further, however, that the Debtors obligations to make
distributions in accordance with ARTICLE II.C shall be deemed satisfied upon delivery of
distributions to the DIP Facility Administrative Agent.
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3. Delivery of Distributions on account of ABL Claims. The ABL Facility
Administrative Agent shall be deemed to be the holder of the ABL Claim, as applicable, for purposes
of distributions to be made hereunder, and the Distribution Agent shall make all distributions on
account of such Allowed ABL Claim to or on behalf of the ABL Facility Administrative Agent. The
ABL Facility Administrative Agent shall hold or direct such distributions for the benefit of the
holder of the Allowed ABL Claim, as applicable. The ABL Facility Administrative Agent shall
arrange to deliver such distributions to or on behalf of the holder of the Allowed ABL Claim;
provided, however, the ABL Facility Administrative Agent shall retain all rights as
administrative agent under the ABL Facility Credit Agreement in connection with delivery of
distributions to the ABL Lender; and provided further, however, that the
Debtors obligations to make distributions in accordance with ARTICLE III.C.1.b shall be deemed
satisfied upon delivery of distributions to the ABL Facility Administrative Agent.
4. Delivery of Distributions on account of the Term Loan Facility Claims. The Term
Loan Facility Administrative Agent shall be deemed to be the holder of the Term Loan Facility
Claims, as applicable, for purposes of distributions to be made hereunder, and the Distribution
Agent shall make all distributions on account of such Allowed Term Loan Facility Claims to or on
behalf of the Term Loan Facility Administrative Agent. The Term Loan Facility Administrative Agent
shall hold or direct such distributions for the benefit of the holders of the Allowed Term Loan
Facility Claims, as applicable. The Term Loan Facility Administrative Agent shall arrange to
deliver such distributions to or on behalf of the holders of the Allowed Term Loan Facility Claims;
provided, however, the Term Loan Facility Administrative Agent shall retain all
rights as administrative agent under the Term Loan Agreement in connection with delivery of
distributions to the Term Loan Lenders; and provided further, however, that
the Debtors obligations to make distributions in accordance with ARTICLE III.C.5.c shall be deemed
satisfied upon delivery of distributions to the Term Loan Facility Administrative Agent.
5. Delivery of Distributions on account of the 7.00% Senior Notes Claims. The Notes
Trustee shall be deemed to be the holder of the 7.00% Senior Notes Claims, as applicable, for
purposes of distributions to be made hereunder, and the Distribution Agent shall make all
distributions on account of such 7.00% Senior Notes Claims to or on behalf of the Notes Trustee.
The Notes Trustee shall hold or direct such distributions for the benefit of the holders of the
7.00% Senior Notes Claims, as applicable. The Notes Trustee shall arrange to deliver such
distributions to or on behalf of the holders of the 7.00% Senior Notes Claims; provided,
however, the Notes Trustee shall retain all rights as indenture trustee under the
Notes Indentures in connection with delivery of distributions to the holders of the 7.00% Senior
Notes; and provided further, however, that the Debtors obligations to make
distributions in accordance with ARTICLE III.C.6.c shall be deemed satisfied upon delivery of
distributions to the Notes Trustee.
6. Delivery of Distributions on account of the 8.25% Senior Notes Claims. The Notes
Trustee shall be deemed to be the holder of the 8.25% Senior Notes Claims, as applicable, for
purposes of distributions to be made hereunder, and the Distribution Agent shall make all
distributions on account of such 8.25% Senior Notes Claims to or on behalf of the Notes Trustee.
The Notes Trustee shall hold or direct such distributions for the benefit of the holders of the
8.25% Senior Notes Claims, as applicable. The Notes Trustee shall arrange to deliver such
distributions to or on behalf of the holders of the 8.25% Senior Notes Claims; provided,
however, the Notes Trustee shall retain all rights as indenture trustee under the Notes
Indentures
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in connection with delivery of distributions to the holders of the 8.25% Senior Notes;
and provided further, however, that the Debtors obligations to make
distributions in accordance with ARTICLE III.C.6.c shall be deemed satisfied upon delivery of
distributions to the Notes Trustee.
7. Delivery of Distributions on account of the 12.25% Senior Notes Claims. The Notes
Trustee shall be deemed to be the holder of the 12.25% Senior Notes Claims, as applicable, for
purposes of distributions to be made hereunder, and the Distribution Agent shall make all
distributions on account of such 12.25% Senior Notes Claims to or on behalf of the Notes Trustee.
The Notes Trustee shall hold or direct such distributions for the benefit of the holders of the
12.25% Senior Notes Claims, as applicable. The Notes Trustee shall arrange to deliver such
distributions to or on behalf of the holders of the 12.25% Senior Notes Claims; provided,
however, the Notes Trustee shall retain all rights as indenture trustee under the Notes
Indentures in connection with delivery of distributions to the holders of the 12.25% Senior Notes;
and provided further, however, that the Debtors obligations to make
distributions in accordance with ARTICLE III.C.7.c shall be deemed satisfied upon delivery of
distributions to the Notes Trustee.
8. Notes Trustee as Claim Holder. Consistent with Bankruptcy Rule 3003(c), the
Reorganized Debtors shall recognize a Proof of Claim filed by the Notes Trustee in respect of the
7.00% Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior Notes Claims. Accordingly,
any Claim, proof of which is by the registered or beneficial holder of a Claim, may be disallowed
as duplicative of a Claim of the Notes Trustee, without need for any further action or Bankruptcy
Court order.
9. Withholding of shares of New Visteon Common Stock. Notwithstanding anything in the
Plan to the contrary, Reorganized Visteon shall hold any shares of New Visteon Common Stock to
which a Contingent Holder would otherwise be entitled if it were not a Contingent Holder until such
time that such holder provides the Distribution Agent written certification that such holder is not
in violation of any laws or regulations of any Governmental Unit. Such Contingent Holder shall not
be a shareholder of Reorganized Visteon and shall have no voting rights or other rights of a
shareholder of Reorganized Visteon with respect to such withheld shares. As soon as reasonably
practicable upon receipt by the Distribution Agent of a Contingent Holders written certification
that such holder is in compliance with the laws and regulations of the applicable Governmental Units, but not earlier than the Effective Date,
Reorganized Visteon shall release such withheld shares of New Visteon Common Stock for distribution
to the Contingent Holder. To the extent that a Contingent Holder fails to provide the Distribution
Agent with such certification within 180 days of the Effective Date, Reorganized Visteon shall be
permitted as agent for the Contingent Holder to market for sale that portion of the Allowed Claim
or Interest underlying such Contingent Holders withheld shares of New Visteon Common Stock. The
proceeds of any such sale (minus any fees or expenses incurred by Reorganized Visteon in connection
with such sale) shall be distributed to such Contingent Holder as soon as such sale can be
facilitated, subject to applicable regulatory approval, if any. Under the Rights Offering Sub
Plan, under no circumstance shall a Contingent Holder have a claim for the return of any funds paid
in connection with the purchase of Rights Offering Shares, or, if applicable, be released from its
obligations under the Equity Commitment Agreement, unless otherwise provided for therein, solely on
account of such holder being a Contingent Holder.
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B. | Distributions on Account of Claims Allowed After the Effective Date |
1. Payments and Distributions on Disputed Claims. Except as otherwise provided in the
Plan, a Final Order, or as agreed to by the relevant parties, distributions under the Plan on
account of Disputed Claims that become Allowed after the Effective Date shall be made on the
Periodic Distribution Date that is at least 30 days after the Disputed Claim becomes an Allowed
Claim or Interest; provided, however, that (a) Disputed Claims that are
Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of
business during the Chapter 11 Cases or assumed by the Debtors on or before the Effective Date that
become Allowed after the Effective Date shall be paid or performed in the ordinary course of
business in accordance with the terms and conditions of any controlling agreements, course of
dealing, course of business, or industry practice and (b) Disputed Claims that are Priority Tax
Claims or Secured Tax Claims that become Allowed Priority Tax Claims or Allowed Secured Tax Claims
after the Effective Date shall be paid in full in Cash on the Periodic Distribution Date that is at
least 30 days after the Disputed Claim becomes an Allowed Claim or over a five-year period as
provided in section 1129(a)(9)(C) of the Bankruptcy Code with annual interest provided by
applicable non-bankruptcy law.
2. Special Rules for Distributions to Holders of Disputed Claims. Notwithstanding any
provision otherwise in the Plan and except as otherwise agreed by the relevant parties (a) no
partial payments and no partial distributions shall be made with respect to a Disputed Claim until
all such disputes in connection with such Disputed Claim have been resolved by settlement or Final
Order and (b) any Entity that holds both an Allowed Claim or Interest and a Disputed Claim shall
not receive any distribution on the Allowed Claim or Interest unless and until all objections to
the Disputed Claim have been resolved by settlement or Final Order or the Claims or Interests have
been Allowed or expunged. All distributions made pursuant to the Plan on account of a Disputed
Claim that is deemed an Allowed Claim or Interest by the Bankruptcy Court shall be made together
with any dividends, payments, or other distributions made on account of, as well as any obligations
arising from, the distributed property as if such Allowed Claim or Interest had been an Allowed
Claim or Interest on the dates distributions were previously made to holders of Allowed Claims or Interests included in the applicable Class;
provided, however, that no interest shall be paid on account to such Allowed Claims
or Interests unless required under applicable bankruptcy law.
C. | Delivery of Distributions |
1. Record Date for Distributions. On the Distribution Record Date, the Claims
Register shall be closed and the Distribution Agent shall be authorized and entitled to recognize
only those record holders listed on the Claims Register as of the close of business on the
Distribution Record Date. Notwithstanding the foregoing, if a Claim or Interest, other than one
based on a publicly traded Certificate is transferred less than 20 days before the Distribution
Record Date, the Distribution Agent shall make distributions to the transferee only to the extent
practical and in any event only if the relevant transfer form contains an unconditional and
explicit certification and waiver of any objection to the transfer by the transferor.
2. Distribution Process. The Distribution Agent shall make all distributions required
under the Plan, except that distributions to holders of Allowed Claims governed by a separate
54
agreement and administered by a Servicer shall be deposited with the appropriate Servicer, at which
time such distributions shall be deemed complete, and the Servicer shall deliver such distributions
in accordance with the Plan and the terms of the governing agreement. Except as otherwise provided
in the Plan, and notwithstanding any authority to the contrary, distributions to holders of Allowed
Claims or Interests shall be made to holders of record as of the Distribution Record Date by the
Distribution Agent or a Servicer, as appropriate: (a) to the signatory set forth on any of the
Proofs of Claim filed by such holder or other representative identified therein (or at the last
known addresses of such holder if no Proof of Claim is filed or if the Debtors have been notified
in writing of a change of address); (b) at the addresses set forth in any written notices of
address changes delivered to the Distribution Agent after the date of any related Proof of Claim;
(c) in accordance with Federal Rule of Civil Procedure 4, as modified and made applicable by
Bankruptcy Rule 7004 if no Proof of Claim has been filed and the Distribution Agent has not
received a written notice of a change of address; (d) at the addresses reflected in the Schedules
if no Proof of Claim has been filed and the Distribution Agent has not received a written notice of
a change of address; or (e) on any counsel that has appeared in the Chapter 11 Cases on the
holders behalf. The Debtors, the Reorganized Debtors, and the Distribution Agent, as applicable,
shall not incur any liability whatsoever on account of any distributions under the Plan.
3. Accrual of Dividends and Other Rights. For purposes of determining the accrual of
dividends or other rights after the Effective Date, New Visteon Common Stock shall be deemed
distributed as of the Effective Date regardless of the date on which it is actually issued, dated,
authenticated, or distributed; provided however, the Reorganized Debtors shall not
pay any such dividends or distribute such other rights, if any, until after distributions of New
Visteon Common Stock actually take place.
4. Compliance Matters. In connection with the Plan, to the extent applicable, the
Reorganized Debtors and the Distribution Agent shall comply with all tax withholding and reporting
requirements imposed on them by any Governmental Unit, and all distributions
pursuant to the Plan shall be subject to such withholding and reporting requirements.
Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and the
Distribution Agent shall be authorized to take all actions necessary or appropriate to comply with
such withholding and reporting requirements, including liquidating a portion of the distribution to
be made under the Plan to generate sufficient funds to pay applicable withholding taxes,
withholding distributions pending receipt of information necessary to facilitate such
distributions, or establishing any other mechanisms they believe are reasonable and appropriate.
The Reorganized Debtors reserve the right to allocate all distributions made under the Plan in
compliance with all applicable wage garnishments, alimony, child support, and other spousal awards,
liens, and encumbrances.
5. Foreign Currency Exchange Rate. Except as otherwise provided in the Plan or a
Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S.
dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the
exchange rate as of Thursday, May 28, 2009 as quoted at 4:00 p.m. (EDT), mid-range spot rate of
exchange for the applicable currency as published in The Wall Street Journal, National Edition, on
Friday, May 29, 2009.
55
6. Fractional, De Minimis, Undeliverable, and Unclaimed Distributions.
a. Fractional Distributions. Notwithstanding any other provision of the Plan
to the contrary, payments of fractions of shares of New Visteon Common Stock shall not be
made and shall be deemed to be zero, and the Distribution Agent shall not be required to
make distributions or payments of fractions of dollars. Whenever any payment of Cash of a
fraction of a dollar pursuant to the Plan would otherwise be required, the actual payment
shall reflect a rounding of such fraction to the nearest whole dollar (up or down), with
half dollars or less being rounded down.
b. De Minimis Distributions. Neither the Distribution Agent nor any Servicer
shall have any obligation to make a distribution on account of an Allowed Claim or Interest
if (i) the aggregate amount of all distributions authorized to be made on the Periodic
Distribution Date in question is or has an economic value less than $250,000, or (ii) the
amount to be distributed to the specific holder of an Allowed Claim on the particular
Periodic Distribution Date does not constitute a final distribution to such holder.
c. Undeliverable Distributions. If any distribution to a holder of an Allowed
Claim or Interest is returned to a Distribution Agent as undeliverable, no further
distributions shall be made to such holder unless and until such Distribution Agent is
notified in writing of such holders then-current address, at which time all currently due
missed distributions shall be made to such holder on the next Periodic Distribution Date.
Undeliverable distributions shall remain in the possession of the Reorganized Debtors until
such time as a distribution becomes deliverable, or such distribution reverts to the
Reorganized Debtors or is cancelled pursuant to ARTICLE IX.C.6.d, and shall not be
supplemented with any interest, dividends, or other accruals of any kind.
d. Reversion. Any distribution under the Plan that is an Unclaimed
Distribution for a period of six months after distribution shall be deemed unclaimed
property under section 347(b) of the Bankruptcy Code and such Unclaimed Distribution shall
revest in the Reorganized Debtors and, to the extent such Unclaimed Distribution is New
Visteon Common Stock, shall be deemed cancelled. Upon such revesting, the Claim of any
holder or its successors with respect to such property shall be cancelled, discharged, and
forever barred notwithstanding any applicable federal or state escheat, abandoned, or
unclaimed property laws to the contrary. The provisions of the Plan regarding undeliverable
distributions and Unclaimed Distributions shall apply with equal force to distributions that
are issued by the Debtors, the Reorganized Debtors, or the Distribution Agent made pursuant
to any indenture or Certificate (but only with respect to the initial distribution by the
Servicer to holders that are entitled to be recognized under the relevant indenture or
Certificate and not with respect to Entities to whom those recognized holders distribute),
notwithstanding any provision in such indenture or Certificate to the contrary and
notwithstanding any otherwise applicable federal or state escheat, abandoned, or unclaimed
property law.
7. Surrender of Cancelled Instruments or Securities. On the Effective Date or as soon
as reasonably practicable thereafter, each holder of a Certificate, except holders of Class I
56
Claims, shall surrender such Certificate to the Distribution Agent or a Servicer (to the extent the
relevant Claim is governed by an agreement and administered by a Servicer). Such Certificate shall
be cancelled solely with respect to the Debtors, and such cancellation shall not alter the
obligations or rights of any non-Debtor third parties vis-à-vis one another with respect to such
Certificate. No distribution of property pursuant to the Plan shall be made to or on behalf of any
such holder unless and until such Certificate is received by the Distribution Agent or the Servicer
or the unavailability of such Certificate is reasonably established to the satisfaction of the
Distribution Agent or the Servicer pursuant to the provisions of ARTICLE IX.C.8. Any holder who
fails to surrender or cause to be surrendered such Certificate or fails to execute and deliver an
affidavit of loss and indemnity acceptable to the Distribution Agent or the Servicer prior to the
first anniversary of the Effective Date, shall have its Claim discharged with no further action, be
forever barred from asserting any such Claim against the relevant Reorganized Debtor or its
property, be deemed to have forfeited all rights, and Claims with respect to such Certificate, and
not participate in any distribution under the Plan; furthermore, all property with respect to such
forfeited distributions, including any dividends or interest attributable thereto, shall revert to
the Reorganized Debtors, notwithstanding any federal or state escheat, abandoned, or unclaimed
property law to the contrary. Notwithstanding the foregoing paragraph, this ARTICLE IX.C.7 shall
not apply to any Claims reinstated pursuant to the terms of the Plan.
8. Lost, Stolen, Mutilated, or Destroyed Debt Securities. Any holder of Allowed
Claims evidenced by a Certificate that has been lost, stolen, mutilated, or destroyed shall, in
lieu of surrendering such Certificate, deliver to the Distribution Agent or Servicer, if
applicable, an affidavit of loss acceptable to the Distribution Agent or Servicer setting forth the
unavailability of the Certificate, and such additional indemnity as may be required reasonably by
the Distribution Agent or Servicer to hold the Distribution Agent or Servicer harmless from any
damages, liabilities, or costs incurred in treating such holder as a holder of an Allowed Claim or
Interest. Upon compliance with this procedure by a holder of an Allowed Claim evidenced by
such a lost, stolen, mutilated, or destroyed Certificate, such holder shall, for all purposes
pursuant to the Plan, be deemed to have surrendered such Certificate.
D. | Claims Paid or Payable by Third Parties |
1. Claims Paid by Third Parties. The Claims and Solicitation Agent shall reduce in
full a Claim, and such Claim shall be disallowed without a Claims objection having to be filed and
without any further notice to or action, order, or approval of the Bankruptcy Court, to the extent
that the holder of such Claim receives payment in full on account of such Claim from a party that
is not a Debtor or Reorganized Debtor. To the extent a holder of a Claim receives a distribution
on account of such Claim and receives payment from a party that is not a Debtor or a Reorganized
Debtor on account of such Claim, such holder shall, within two weeks of receipt thereof, repay or
return the distribution to the applicable Reorganized Debtor, to the extent the holders total
recovery on account of such Claim from the third party and under the Plan exceeds the amount of
such Claim as of the date of any such distribution under the Plan.
2. Claims Payable by Insurance Carriers. No distributions under the Plan shall be
made on account of an Allowed Claim that is payable pursuant to one of the Debtors insurance
policies until the holder of such Allowed Claim has exhausted all remedies with respect to such
insurance policy. To the extent that one or more of the Debtors insurers agrees to satisfy in
full
57
a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then
immediately upon such insurers agreement, such Claim may be expunged to the extent of any agreed
upon satisfaction on the Claims Register by the Claims and Solicitation Agent without a Claims
objection having to be filed and without any further notice to or action, order, or approval of the
Bankruptcy Court.
3. Applicability of Insurance Policies. Except as otherwise provided in the Plan,
distributions to holders of Allowed Claims shall be in accordance with the provisions of any
applicable insurance policy. Nothing contained in the Plan shall constitute or be deemed a waiver
of any Cause of Action that the Debtors or any Entity may hold against any other Entity, including
insurers under any policies of insurance, nor shall anything contained herein constitute or be
deemed a waiver by such insurers of any defenses, including coverage defenses, held by such
insurers.
E. | Setoffs |
Except as otherwise expressly provided for in the Plan or in an Accommodation Agreement, each
Reorganized Debtor pursuant to the Bankruptcy Code (including section 553 of the Bankruptcy Code),
applicable non-bankruptcy law, or as may be agreed to by the holder of a Claim, may set off against
any Allowed Claim and the distributions to be made pursuant to the Plan on account of such Allowed
Claim (before any distribution is made on account of such Allowed Claim), any Claims, rights, and
Causes of Action of any nature that such Debtor or Reorganized Debtor, as applicable, may hold
against the holder of such Allowed Claim, to the extent such Claims, rights, or Causes of Action
against such holder have not been otherwise compromised or settled on or prior to the Effective
Date (whether pursuant to the Plan or otherwise); provided, however, that neither the failure to effect such a
setoff nor the allowance of any Claim pursuant to the Plan shall constitute a waiver or release by
such Reorganized Debtor of any such Claims, rights, and Causes of Action that such Reorganized
Debtor may possess against such holder. In no event shall any holder of Claims be entitled to set
off any Claim against any Claim, right, or Cause of Action of the Debtor or Reorganized Debtor, as
applicable, unless such holder has filed a motion with the Bankruptcy Court requesting the
authority to perform such setoff on or before the Confirmation Date, and notwithstanding any
indication in any Proof of Claim or otherwise that such holder asserts, has, or intends to preserve
any right of setoff pursuant to section 553 or otherwise.
F. | Allocation Between Principal and Accrued Interest |
Except as otherwise provided in the Plan, the aggregate consideration paid to holders with
respect to their Allowed Claims shall be treated pursuant to the Plan as allocated first to the
principal amount of such Allowed Claims (to the extent thereof) and, thereafter, to the interest,
if any, accrued through the Effective Date.
58
ARTICLE X.
EFFECT OF CONFIRMATION OF THE PLAN
A. | Discharge of Claims and Termination of Interests |
Except with respect to Claims, if any, held by Investors arising under the Equity Commitment
Agreement or as otherwise provided in the Plan and effective as of the Effective Date: (1) the
rights afforded in the Plan and the treatment of all Claims and Interests shall be in exchange for
and in complete satisfaction, discharge, and release of all Claims and Interests of any nature
whatsoever, including any interest accrued on such Claims from and after the Petition Date, against
the Debtors or any of their assets, property, or Estates; (2) the Plan shall bind all holders of
Claims and Interests, notwithstanding whether any such holders failed to vote to accept or reject
the Plan or voted to reject the Plan; (3) all Claims and Interests shall be satisfied, discharged,
and released in full, and the Debtors liability with respect thereto shall be extinguished
completely, including any liability of the kind specified under section 502(g) of the Bankruptcy
Code; and (4) all Entities shall be precluded from asserting against the Debtors, the Debtors
Estates, the Reorganized Debtors, their successors and assigns, and their assets and properties any
other Claims or Interests based upon any documents, instruments, or any act or omission,
transaction, or other activity of any kind or nature that occurred prior to the Effective Date.
B. | Subordinated Claims |
The allowance, classification, and treatment of all Allowed Claims and Interests and the
respective distributions and treatments under the Plan take into account and conform to the
relative priority and rights of the Claims and Interests in each Class in connection with any
contractual, legal, and equitable subordination rights relating thereto, whether arising under
general principles of equitable subordination, section 510 of the Bankruptcy Code, or
otherwise. Pursuant to section 510 of the Bankruptcy Code, the Reorganized Debtors reserve the
right to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or
equitable subordination relating thereto.
C. | Compromise and Settlement of Claims and Controversies |
Pursuant to section 363 of the Bankruptcy Code and Bankruptcy Rule 9019 and in consideration
for the distributions and other benefits provided pursuant to the Plan or any distribution to be
made on account of an Allowed Claim or Interest, the provisions of the Plan shall constitute a good
faith compromise of all Claims, Interests, and controversies relating to the contractual, legal,
and subordination rights that a holder of a Claim or Interest may have with respect to any Allowed
Claim or Interest. The entry of the Confirmation Order shall constitute the Bankruptcy Courts
approval of the compromise or settlement of all such Claims, Interests, and controversies, as well
as a finding by the Bankruptcy Court that any such compromise or settlement is in the best
interests of the Debtors, their Estates, and holders of Claims and Interests and is fair,
equitable, and reasonable. In accordance with the provisions of the Plan, pursuant to section 363
of the Bankruptcy Code and Bankruptcy Rule 9019(a), without any further notice to
59
or action, order, or approval of the Bankruptcy Court, after the Effective Date, the Reorganized Debtors may
compromise and settle Claims against them and Causes of Action against other Entities.
D. | Releases by the Debtors |
Pursuant to section 1123(b) of the Bankruptcy Code, and except as otherwise specifically
provided in the Plan, for good and valuable consideration, on and after the Effective Date, the
Released Parties are deemed released and discharged by the Debtors, the Reorganized Debtors, and
their Estates from any and all Claims, obligations, rights, suits, damages, Causes of Action,
remedies, and liabilities whatsoever, including any derivative Claims, asserted on behalf of the
Debtors, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law,
equity, or otherwise, that the Debtors, the Reorganized Debtors, their Estates, or their Affiliates
would have been legally entitled to assert in their own right (whether individually or
collectively) or on behalf of the holder of any Claim or Interest or other Entity, based on or
relating to, or in any manner arising from, in whole or in part, the Debtors, the Chapter 11 Cases,
the purchase, sale, or rescission of the purchase or sale of any security of the Debtors or the
Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim
or Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor and any Released Party, the restructuring of Claims and Interests prior to or in the Chapter
11 Cases, the negotiation, formulation, or preparation of the Plan and Disclosure Statement, or
related agreements, instruments, or other documents, upon any other act or omission, transaction,
agreement, event, or other occurrence taking place on or before the Effective Date of the Plan,
other than Claims or liabilities arising out of or relating to any act or omission of a Released
Party that constitutes willful misconduct or gross negligence, or as otherwise provided in the
Plan.
E. | Releases by Holders of Claims and Interests |
As of the Effective Date, the Releasing Parties are deemed to have released and discharged the
Debtors, the Reorganized Debtors, their Estates, and the Released Parties from any and all Claims,
Interests, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities
whatsoever, including any derivative Claims, asserted on behalf of the Debtors, whether known or
unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise,
that such Entity would have been legally entitled to assert (whether individually or collectively),
based on or relating to, or in any manner arising from, in whole or in part, the Debtors, the
Debtors restructuring, the Chapter 11 Cases, the purchase, sale, or rescission of the purchase or
sale of any security of the Debtors or the Reorganized Debtors, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the
business or contractual arrangements between any Debtor and any Released Party, the restructuring
of Claims and Interests prior to or in the Chapter 11 Cases, the negotiation, formulation, or
preparation of the Plan, the Disclosure Statement, the Plan Supplement, the Equity Commitment
Agreement or related agreements, instruments, or other documents, upon any other act or omission,
transaction, agreement, event, or other occurrence taking place on or before the Effective Date of
the Plan, other than Claims or liabilities arising out of or
60
relating to any act or omission of a Released Party that constitutes willful misconduct or gross negligence. Notwithstanding anything
to the contrary in the foregoing, the releases set forth above do not release any (i)
post-Effective Date obligations of any party under the Plan or any document, instrument, or
agreement (including those set forth in the Plan Supplement) executed to implement the Plan or (ii)
Claims held by Investors arising under the Equity Commitment Agreement. For the avoidance of
doubt, nothing in this paragraph shall in any way affect the operation of ARTICLE X.A of the Plan,
pursuant to section 1141(d) of the Bankruptcy Code.
F. | Exculpation |
The Exculpated Parties shall neither have, nor incur any liability to any Entity for any
Exculpated Claim; provided, however, that the foregoing exculpation shall have no
effect on the liability of (1) any Entity that results from any such act or omission that is
determined in a Final Order to have constituted gross negligence or willful misconduct, or (2) any
Debtor or Reorganized Debtor not exculpated pursuant to the Equity Commitment Agreement in
connection with Claims arising thereunder.
The Exculpated Parties have, and upon Confirmation shall be deemed to have, participated in
good faith and in compliance with the applicable provisions of the Bankruptcy Code with regard to
the distributions of the New Visteon Common Stock pursuant to the Plan and, therefore, are not and
shall not be liable at any time for the violations of any applicable, law, rule, or regulation
governing the solicitation of acceptances or rejections of the Plan or such distributions made
pursuant to the Plan.
G. | Injunction |
From and after the Effective Date, all Entities are permanently enjoined from commencing or
continuing in any manner, any suit, action, or other proceeding, on account of or respecting any
Claim, demand, Lien, liability, obligation, debt, right, Cause of Action, Interest, or remedy
released or to be released, exculpated, or to be exculpated pursuant to the Plan or the
Confirmation Order.
H. | Protection Against Discriminatory Treatment |
Consistent with section 525 of the Bankruptcy Code and paragraph 2 of Article VI of the United
States Constitution, no Governmental Unit shall discriminate against the Reorganized Debtors or
deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar
grant to, condition such a grant to, discriminate with respect to such a grant against, the
Reorganized Debtors, or another Entity with whom such Reorganized Debtors have been associated,
solely because one of the Debtors has been a debtor under chapter 11, has been insolvent before the
commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtor is
granted or denied a discharge), or has not paid a debt that is dischargeable in the Chapter 11
Cases.
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I. Indemnification
Except as otherwise provided in the Plan, all indemnification provisions currently in place
(whether in the by-laws, certificates of incorporation, articles of limited partnership, board
resolutions, contracts, or otherwise) for the directors, officers, employees, attorneys, other
professionals, and agents of the Debtors that served in such capacity from and after the Petition
Date and such directors and officers respective affiliates, shall be reinstated (or assumed, as
the case may be), and shall survive effectiveness of the Plan.
J. Recoupment
In no event shall any holder of Claims or Interests be entitled to recoup any Claim or
Interest against any Claim, right, or Cause of Action of the Debtors or the Reorganized Debtors, as
applicable, unless such holder actually has performed such recoupment and provided notice thereof
in writing to the Debtors on or before the Confirmation Date, notwithstanding any indication in any
Proof of Claim or Interest or otherwise that such holder asserts, has, or intends to preserve any
right of recoupment.
K. Release of Liens
Except as otherwise provided in the Plan or in any contract, instrument, release, or other
agreement or document created pursuant to the Plan, on the Effective Date, all mortgages, deeds of
trust, Liens, pledges, or other security interests against any property of the Estates shall be
fully released, and discharged, and all of the right, title, and interest of any holder of such
mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the
Reorganized Debtor and its successors and assigns.
L. Reimbursement or Contribution
If the Bankruptcy Court disallows a Claim for reimbursement or contribution of an Entity
pursuant to section 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is
contingent as of the Effective Date, such Claim shall be forever disallowed notwithstanding section
502(j) of the Bankruptcy Code, unless prior to the Effective Date (1) such Claim has been
adjudicated as noncontingent or (2) the relevant holder of a Claim has filed a noncontingent Proof
of Claim on account of such Claim and a Final Order has been entered determining such Claim as no
longer contingent.
ARTICLE
XI.
CONDITIONS PRECEDENT TO CONSUMMATION OF THE PLAN
A. Conditions Precedent to the Effective Date
It shall be a condition to the Effective Date that the following conditions shall have been
satisfied or waived pursuant to ARTICLE XI.B hereof:
1. the Confirmation Order shall have become a Final Order in form and substance reasonably
acceptable to the Debtors and the Requisite Parties;
62
2. all guaranties (including by non-Debtors) in connection with obligations under the Term
Loan Facility, and all other obligations being discharged under the Plan, shall have been released
or otherwise addressed in a manner reasonably acceptable to the Debtors and the Requisite Parties,
and all Liens or pledges securing obligations under the Term Loan Facility (or any guarantee
thereof) shall have been released or otherwise addressed in a manner reasonably acceptable to the
Debtors and the Requisite Parties;
3. all actions, documents, Certificates, and agreements necessary to implement the Plan, shall
have (a) all conditions precedent to such documents and agreements satisfied or waived pursuant to
the terms of such documents or agreements, (b) been tendered for delivery, (c) to the extent
required, been filed with and approved by any applicable Governmental Units in accordance with
applicable laws, and (d) been effected or executed;
4. all matters relating to Ford Motor Company have been resolved to the reasonable
satisfaction of the Requisite Parties, provided, upon resolution of such matters, Ford
Motor Company shall be released from liability in connection therewith pursuant to Bankruptcy Rule
9019;
5. under the Rights Offering Sub Plan, all conditions to the effectiveness of the Equity
Commitment Agreement shall have been satisfied or waived in accordance with the terms thereof; and
6. under the Rights Offering Sub Plan, the Debtors shall have entered into the Exit Financing
and drawn an amount thereunder as of the Effective Date that together with the proceeds of the
Rights Offering is sufficient to fund payment in full to holders of Allowed Term Loan Facility
Claims pursuant to ARTICLE III.C.5.c of the Plan.
B. Waiver of Conditions Precedent
Subject to the terms of the Equity Commitment Agreement, the Debtors and the Requisite Parties
may jointly waive any of the conditions to the Effective Date set forth in ARTICLE XI.A at any time
without any notice to other parties in interest and without any further notice to or action, order,
or approval of the Bankruptcy Court, and without any formal action other than proceeding to confirm
or consummate the Plan.
C. Effect of Non-Occurrence of Conditions to Consummation
If prior to Consummation, the Confirmation Order is vacated pursuant to a Final Order, then
except as provided in any order of the Bankruptcy Court vacating the Confirmation Order, the Plan
will be null and void in all respects, and nothing contained in the Plan or Disclosure Statement
shall (1) constitute a waiver or release of any Claims, Interests, or Causes of Action, (2)
prejudice in any manner the rights of any Debtor or any other Entity, or (3) constitute an
admission, acknowledgment, offer, or undertaking of any sort by any Debtor or any other Entity.
63
ARTICLE
XII.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date,
the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or
related to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the
Bankruptcy Code, including jurisdiction to:
1. allow, disallow, determine, liquidate, classify, estimate, or establish the priority,
secured or unsecured status, or amount of any Claim or Interest, including the resolution of any
request for payment of any Administrative Claim and the resolution of any and all objections to the
secured or unsecured status, priority, amount, or allowance of Claims or Interests;
2. decide and resolve all matters related to the granting and denying, in whole or in part,
any applications for allowance of compensation or reimbursement of expenses to Professionals
authorized pursuant to the Bankruptcy Code or the Plan;
3. resolve any matters related to Executory Contracts or Unexpired Leases, including: (a) the
assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to
which a Debtor is party or with respect to which a Debtor may be liable and to hear, determine,
and, if necessary, liquidate, any Cure or Claims arising therefrom, including pursuant to section
365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract
or Unexpired Lease that is assumed; (c) the Reorganized Debtors amendment, modification, or
supplement, after the Effective Date, pursuant to ARTICLE VII, of the list of Executory Contracts
and Unexpired Leases to be assumed or rejected or otherwise; and (d) any dispute regarding whether
a contract or lease is or was executory or expired;
4. ensure that distributions to holders of Allowed Claims are accomplished pursuant to the
provisions of the Plan and adjudicate any and all disputes arising from or relating to
distributions under the Plan;
5. adjudicate, decide, or resolve any motions, adversary proceedings, contested or litigated
matters, and any other matters, and grant or deny any applications involving a Debtor that may be
pending on the Effective Date;
6. adjudicate, decide, or resolve any and all matters related to Causes of Action;
7. adjudicate, decide, or resolve any and all matters related to section 1141 of the
Bankruptcy Code;
8. enter and implement such orders as may be necessary or appropriate to execute, implement,
or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and
other agreements or documents created in connection with the Plan or the Disclosure Statement;
64
9. enter and enforce any order for the sale of property pursuant to sections 363, 1123, or
1146(a) of the Bankruptcy Code;
10. grant any consensual request to extend the deadline for assuming or rejecting Unexpired
Leases pursuant to section 365(d)(4) of the Bankruptcy Code;
11. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in
connection with the Consummation, interpretation, or enforcement of the Plan or any Entitys
obligations incurred in connection with the Plan;
12. enter and implement such orders as may be necessary or appropriate to execute, implement,
or consummate the provisions of all contracts, instruments, releases, indentures, and other
agreements or documents approved by Final Order in the Chapter 11 Cases;
13. issue injunctions, enter and implement other orders, or take such other actions as may be
necessary or appropriate to restrain interference by any Entity with Consummation or enforcement of
the Plan;
14. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the
releases, injunctions, and other provisions contained in ARTICLE X and enter such orders as may be
necessary or appropriate to implement such releases, injunctions, and other provisions;
15. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the
repayment or return of distributions and the recovery of additional amounts owed by the holder of a
Claim for amounts not timely repaid pursuant to ARTICLE IX.D.1;
16. enter and implement such orders as are necessary or appropriate if the Confirmation Order
is for any reason modified, stayed, reversed, revoked, or vacated;
17. determine any other matters that may arise in connection with or relate to the Plan, the
Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or
other agreement or document created in connection with the Plan or the Disclosure Statement;
18. enter an order or Final Decree concluding or closing the Chapter 11 Cases;
19. consider any modifications of the Plan, to cure any defect or omission, or to reconcile
any inconsistency in any Bankruptcy Court order, including the Confirmation Order;
20. determine requests for the payment of Claims and Interests entitled to priority pursuant
to section 507 of the Bankruptcy Code;
21. hear and determine disputes arising in connection with the interpretation, implementation,
or enforcement of the Plan, or the Confirmation Order, including disputes arising under agreements,
documents, or instruments executed in connection with the Plan;
22. hear and determine matters concerning state, local, and federal taxes in accordance with
sections 346, 505, and 1146 of the Bankruptcy Code;
65
23. hear and determine all disputes involving the existence, nature, or scope of the Debtors
discharge, including any dispute relating to any liability arising out of the termination of
employment or the termination of any employee or retiree benefit program, regardless of whether
such termination occurred prior to or after the Effective Date;
24. hear and determine matters related to the Accommodation Agreements and related agreements;
25. enforce all orders previously entered by the Bankruptcy Court; and
26. hear any other matter not inconsistent with the Bankruptcy Code.
ARTICLE
XIII.
MISCELLANEOUS PROVISIONS
A. No Stay of Confirmation Order
The Confirmation Order shall contain a waiver of any stay of enforcement otherwise applicable,
including pursuant to Bankruptcy Rules 3020(e) and 7062.
B. Modification of Plan
Effective as of the date hereof and subject to the limitations and rights contained in the
Plan (1) the Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy
Rules, to amend or modify the Plan before the entry of the Confirmation Order, subject to, and in
accordance with, the terms of each of the Plan Support Agreements, (2) after the entry of the
Confirmation Order, the Debtors or the Reorganized Debtors, as applicable, may, upon order of the
Bankruptcy Court, amend or modify the Plan with the consent of the Requisite Parties, in accordance
with section 1127(b) of the Bankruptcy Code or remedy any defect or omission or reconcile any
inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of
the Plan, and (3) the Debtors reserve the right to modify the Plan, subject to, and in accordance
with, the terms of each of the Plan Support Agreements, to implement the sale of all or
substantially all of the assets of the Debtors pursuant to sections 363 and 1123(a)(5)(D) of the
Bankruptcy Code.
C. Revocation or Withdrawal of Plan
The Debtors reserve the right, subject to, and in accordance with, the terms of each of the
Plan Support Agreements, to revoke or withdraw the Plan before the Confirmation Date and to file
subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan, or if Confirmation or the
Effective Date does not occur, then (1) the Plan will be null and void in all respects, (2) any
settlement or compromise embodied in the Plan, assumption or rejection of Executory Contracts or
Unexpired Leases effected by the Plan, and any document or agreement executed pursuant hereto will
be null and void in all respects, and (3) nothing contained in the Plan shall (a) constitute a
waiver or release of any Claims, Interests, or Causes of Action, (b) prejudice in any manner the
rights of any Debtor or any other Entity, or (c) constitute an admission, acknowledgement, offer,
or undertaking of any sort by any Debtor or any other Entity.
66
D. Confirmation of the Plan
The Debtors request Confirmation of the Plan under section 1129(b) of the Bankruptcy Code with
respect to any Impaired Class that does not accept the Plan pursuant to section 1126 of the
Bankruptcy Code. The Debtors reserve the right to amend the Plan to the extent, if any, that
Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification.
E. Additional Documents
On or before the Effective Date, the Debtors may file with the Bankruptcy Court such
agreements and other documents as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Plan, subject to, and in accordance with, the terms of
each of the Plan Support Agreements. The Debtors or the Reorganized Debtors, as applicable, and
all holders of Claims receiving distributions pursuant to the Plan and all other parties in
interest shall, from time to time, prepare, execute, and deliver any agreements or documents and
take any other actions as may be necessary or advisable to effectuate the provisions and intent of
the Plan.
F. Payment of Statutory Fees
All fees payable pursuant to 28 U.S.C. §1930(a), as determined by the Bankruptcy Court at a
hearing pursuant to section 1128 of the Bankruptcy Code, shall be paid for each quarter (including
any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever
occurs first.
G. Dissolution of Creditors Committee
On the Confirmation Date, the Creditors Committee shall dissolve automatically, and its
members shall be released and discharged from all rights, duties, responsibilities, and liabilities
arising from, or related to, the Chapter 11 Cases; provided, however, that the
Creditors Committee shall be deemed to remain in existence solely with respect to applications
filed pursuant to sections 330 and 331 of the Bankruptcy Code.
H. Role of the Oversight Committee
The Oversight Committee shall have the right to monitor the manner and timing of the
processing of the allowance and disallowance of Class H Claims and the manner and timing of
distributions under the Plan to holders of Allowed Class H Claims, and to receive from the
Reorganized Debtors upon reasonable request information, and be heard by the Bankruptcy Court, in
connection with the foregoing. In addition, the Oversight Committee shall have the right to object
and be heard by the Bankruptcy Court with respect to any reconciliation or resolution of any
Disputed Claim that is a Class H Claim that has a face amount as filed of greater than or equal to
$2.0 million, provided such Claim is not a Trade Claim, subject to the Reorganized Debtors
business judgment to reconcile or resolve any such Claim. The Oversight Committee shall
automatically dissolve following the reconciliation or resolution and final distribution under the
Plan on account of all Class H Claims.
67
The Oversight Committee may retain only those advisors that are retained on terms that are
reasonably acceptable to the Reorganized Debtors or authorized to be retained by further order of
the Bankruptcy Court and the Reorganized Debtors shall compensate such advisors in the ordinary
course of business for reasonable fees and expenses incurred in rendering services to the Oversight
Committee in connection with its exercise of the objection rights contemplated in this ARTICLE
XIII.H of the Plan.
I. Reservation of Rights
Except as expressly set forth in the Plan, the Plan shall have no force or effect unless the
Bankruptcy Court shall enter the Confirmation Order. None of the filing of the Plan, any statement
or provision contained in the Plan, or the taking of any action by any Debtor with respect to the
Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an
admission or waiver of any rights of any Debtor with respect to the holders of Claims or Interests
prior to the Effective Date.
J. Successors and Assigns
The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be
binding on, and shall inure to the benefit of any heir, executor, administrator, successor or
assign, affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian,
if any, of each Entity.
K. Service of Documents
1. After the Effective Date, any pleading, notice, or other document required by the Plan to
be served on or delivered to the Reorganized Debtors shall be served on:
68
Debtors | Counsel to the Debtors | |
Visteon Corporation
|
Pachulski Stang Ziehl & Jones LLP | |
One Village Center Drive
|
919 North Market Street, 17th Floor | |
Van Buren Township, MI 48111
|
Wilmington, DE 19899-8705 | |
Attn.: Michael K. Sharnas, Esq.
|
Attn.: Laura Davis Jones, Esq. | |
James E. ONeill, Esq. | ||
Timothy P. Cairns | ||
Kirkland & Ellis LLP | ||
300 North LaSalle | ||
Chicago, IL 60654 | ||
Attn.: James H. M. Sprayregen, P.C. | ||
James J. Mazza, Jr., Esq. | ||
Sienna R. Singer, Esq. | ||
601 Lexington Avenue | ||
New York, NY 10022-4611 | ||
Attn.: Marc Kieselstein, P.C. | ||
Brian S. Lennon, Esq. |
Counsel to the Investors | ||
White & Case LLP
|
Fox Rothschild LLP | |
1155 Avenue of the Americas
|
919 North Market Street, Suite 1600 | |
New York, NY 10036
|
Wilmington, DE 19801 | |
Attn.: Thomas E Lauria, Esq.
|
Attn.: Jeffrey M. Schlerf, Esq. | |
Gerard Uzzi, Esq.
|
Eric M. Sutty, Esq. | |
Andrew C. Ambruoso, Esq.
|
John H. Strock, Esq. | |
Akin Gump Strauss Hauer & Feld LLP
|
Blank Rome LLP | |
One Bryant Park
|
1201 Market Street, Suite 800 | |
New York, NY 10036
|
Wilmington, DE 19801 | |
Attn.: Michael Stamer, Esq.
|
Attn.: Stanley Tarr, Esq. | |
Arik Preis, Esq. |
69
Counsel to the Creditors Committee | ||
Brown Rudnick LLP
|
Brown Rudnick LLP | |
Seven Times Square
|
City Place I | |
New York, NY 10036
|
Hartford, CT 06103 | |
Attn.: Robert J. Stark, Esq.
|
Attn.: Howard L. Siegel, Esq. | |
Brown Rudnick LLP
|
Ashby & Geddes, P.A. | |
One Financial Center
|
500 Delaware Avenue, 8th Floor | |
Boston, MA 02111
|
Wilmington, DE 19801 | |
Attn.: Jeremy B. Coffey, Esq.
|
Attn.: William P. Bowden, Esq. | |
Gregory A. Taylor, Esq. |
Counsel to the Term Loan Lenders | Counsel to DIP Facility Lenders | |
Bingham McCutchen LLP
|
Bingham McCutchen LLP | |
One Federal Street
|
One Federal Street | |
Boston, MA 02110-1726
|
Boston, MA 02110-1726 | |
Attn.: Michael Reilly
|
Attn.: Michael Reilly | |
Amy Kyle
|
Amy Kyle | |
One State Street
|
One State Street | |
Hartford, CT 06103-3178
|
Hartford, CT 06103-3178 | |
Attn.: Peter H. Bruhn
|
Attn.: Peter H. Bruhn |
United States Trustee | Counsel to ABL Lender | |
Office of the United States Trustee
|
McGuireWoods LLP | |
for the District of Delaware
|
EQT plaza | |
844 King Street, Suite 2207
|
625 Liberty Avenue, 23rd Floor | |
Wilmington, DE 19801
|
Pittsburgh, PA 15222-3142 | |
Attn.: Jane M. Leamy, Esq.
|
Attn.: Mark E. Freedlander |
L. Term of Injunctions or Stays
Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays
in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any
order of the Bankruptcy Court, and existing on the Confirmation Date (excluding any injunctions or
stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until
the Effective Date. All injunctions or stays contained in the Plan or the Confirmation Order shall
remain in full force and effect in accordance with their terms.
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M. Entire Agreement
Except as otherwise indicated, the Plan supersedes all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings, and representations on such
subjects, all of which have become merged and integrated into the Plan.
Notwithstanding anything to the contrary in the Plan (including any amendments, supplements,
or modifications to the Plan) or the Confirmation Order (and any amendments, supplements, or
modifications thereto) or an affirmative vote to accept the Plan submitted by any Investor, nothing
contained in the Plan (including any amendments, supplements, or modifications thereto) shall
alter, amend, or modify the rights of the Investors under the Equity Commitment Agreement.
N. Plan Supplement Exhibits
All exhibits and documents included in the Plan Supplement are incorporated into and are a
part of the Plan as if set forth in full in the Plan. After the exhibits and documents are filed,
copies of such exhibits and documents shall be made available upon written request to the Debtors
counsel at the address above or by downloading such exhibits and documents from
http://www.kccllc.net/Visteon or the Bankruptcy Courts website at www.deb.uscourts.gov. Unless
otherwise ordered by the Bankruptcy Court, to the extent any exhibit or document in the Plan
Supplement is inconsistent with the terms of any part of the Plan that does not constitute the Plan
Supplement, such part of the Plan that does not constitute the Plan Supplement shall control.
O. Severability
If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court
to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and
interpret such term or provision to make it valid or enforceable to the maximum extent practicable,
consistent with the original purpose of the term or provision held to be invalid, void, or
unenforceable, and such term or provision shall then be applicable as altered or interpreted.
Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and
provisions of the Plan will remain in full force and effect and will in no way be affected,
impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order
shall constitute a judicial determination and shall provide that each term and provision of the
Plan, as it may have been altered or interpreted in accordance with the foregoing, is (1) valid and
enforceable pursuant to its terms, (2) integral to the Plan and may not be deleted or modified
without the Debtors consent, and (3) nonseverable and mutually dependent.
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Van Buren Township, Michigan
Dated: June 14, 2010
Dated: June 14, 2010
VISTEON CORPORATION (for itself and all other Debtors) |
||||
By: | ||||
Name: | William G. Quigley, III | |||
Title: | Chief Financial Officer and Executive Vice President | |||
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