Exhibit 10.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is dated as of October 1, 2005 (this
"AGREEMENT"), and is entered into among FORD MOTOR COMPANY ("FORD"), VISTEON
CORPORATION ("VISTEON"), and DEUTSCHE BANK TRUST COMPANY AMERICAS ("ESCROW
AGENT").
A. Ford and Visteon have entered into a Master Agreement dated as of
September 12, 2005 (the "MASTER AGREEMENT") and a Visteon "A" Transaction
Agreement dated as of September 12, 2005 (the "VISTEON "A" TRANSACTION
AGREEMENT"). As part of the consideration under the Visteon A Transaction
Agreement, Ford is required to place into escrow with the Escrow Agent Four
Hundred Million Dollars ($400,000,000) for use by Visteon to restructure its
businesses.
B. Ford and Visteon desire to more fully set forth in this Agreement
the terms and conditions applicable to the amount so retained in escrow.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, and for other good and valuable consideration given
by each party hereto to the other, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. ESTABLISHMENT OF ESCROW.
1.1 Amount of Deposit. Pursuant to the Visteon "A" Transaction
Agreement, Ford shall deposit with the Escrow Agent on the date hereof (or, if
the date hereof is not a Business Day, on the next Business Day thereafter) the
sum of Four Hundred Million Dollars ($400,000,000). This amount shall constitute
a separate escrow fund (together with such other amounts that may be deposited
by Ford with the Escrow Agent pursuant to the terms of the Reimbursement
Agreement (as defined below), the "ESCROW FUND") to be governed by the terms of
this Agreement.
1.2 Investment of Escrow Fund. The Escrow Agent shall hold the Escrow
Fund in a segregated account and shall invest and reinvest any part thereof and
accumulate the interest, income, and earnings thereon (the "ESCROW EARNINGS") in
Liquid Investments (defined below) as Visteon in its sole discretion, either
directly or through its agent, shall direct. Any Escrow Earnings, for all
purposes of this Agreement, will be treated the same as (and will be considered
to be) a part of the Escrow Fund. The Escrow Agent shall hold and safeguard the
Escrow Fund during the term hereof and shall treat the Escrow Fund as a trust
fund in accordance with the terms of this Agreement.
1.3 Liquid Investments. "LIQUID INVESTMENTS" mean (a) money market
instruments, negotiable certificates of deposit, time deposits issued by, or
issued on the credit and backing of, any United States commercial bank with
capital and surplus in excess of $250,000,000; (b) obligations issued or
directly or indirectly guaranteed as to principal and interest by the United
States of America or any agency thereof and having a maturity of not more than
two years from the date of acquisition; (c) commercial paper which is rated not
less than prime-one or A-1 or their equivalents by Moody's Investor Service,
Inc.("MOODY'S") or Standard & Poor's Corporation ("S&P") or their successors;
(d) repurchase agreements or reverse repurchase agreements secured by any one or
more of the investments permitted by
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clauses (a), (b) and (c) above, and (e) one or more money market funds
registered under the Investment Company Act of 1940, as amended, with the
highest investment rating available from Moody's or S&P or their successors and
investing in securities referenced in clauses (a)-(d) above.
1.4 Investment Procedures. The Escrow Agent shall use best efforts to
invest or reinvest the Escrow Fund if deposited with the Escrow Agent after
11:00 a.m. (E.S.T.) on such day of deposit but shall have no obligation to do
so. Instructions received after 11:00 a.m. (E.S.T.) will be treated as if
received on the following Business Day. The Escrow Agent shall have no
responsibility for any investment losses resulting from the investment,
reinvestment or liquidation of the Escrow Fund if invested in accordance with
the terms of this Agreement. Any interest or other income received on such
investment and reinvestment of the Escrow Fund shall become part of the Escrow
Fund and any losses incurred on such investment and reinvestment of the Escrow
Fund shall be debited against the Escrow Fund. If a selection is not made and a
written direction not given to the Escrow Agent, the Escrow Fund shall remain
uninvested with no liability for interest therein. It is agreed and understood
that the entity serving as Escrow Agent may earn fees associated with the
investments outlined above in accordance with the terms of such investments.
Notwithstanding the foregoing, the Escrow Agent shall have the power to sell or
liquidate the foregoing investments whenever the Escrow Agent shall be required
to release all or any portion of the Escrow Fund pursuant to this Agreement. In
no event shall the Escrow Agent be deemed an investment manager or adviser in
respect of any selection of investments hereunder. It is understood and agreed
that the Escrow Agent or its affiliates are permitted to receive additional
compensation that could be deemed to be in the Escrow Agent's economic
self-interest for (1) serving as investment adviser, administrator, shareholder
servicing agent, custodian or sub-custodian with respect to certain of the
investments, (2) using affiliates to effect transactions in certain investments
and (3) effecting transactions in Liquid Investments.
1.5 Report on Investments. The Escrow Agent shall prepare and deliver
to Visteon and Ford a report on or before the 10th day after the end of each
month while funds remain in the Escrow Fund, which report shall set forth:
- Beginning balance of the Escrow Fund
- The Escrow Earnings during the applicable month
- All disbursements
- Additional deposits
- Fees to the Escrow Agent
- Ending balance of the Escrow Fund
- Investment activity
- A list of individual investments, including investment type, par
amount, maturity date and CUSIP or ISN (if available)
Each of Visteon and Ford and its respective representatives shall have the right
to audit, at its expense, the Escrow Fund, including all disbursements and
income, upon reasonable advance written notice given to the Escrow Agent and the
other party.
2. DISBURSEMENTS.
2.1 Request for Escrow Reimbursement. While funds remain in the Escrow
Fund, Visteon shall deliver a copy of a request for reimbursement from the
Escrow Fund (each, a "REQUEST FOR ESCROW REIMBURSEMENT") to the Escrow Agent and
to Ford at the same time, provided, however, that Visteon shall not be entitled
to make a Request for Escrow Reimbursement seeking reimbursement for a
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specific category of Reimbursable Restructuring Costs if a Final Award (defined
herein) previously rendered ruled that such category was not eligible for
reimbursement hereunder. At Visteon's request, a Request for Escrow
Reimbursement shall be submitted no more often than once each calendar month on
or before the tenth (10th) Business Day following the end of such month. Each
Request for Escrow Reimbursement shall only cover Reimbursable Restructuring
Costs and shall contain the following information:
(a) A certification by an officer of Visteon substantially in the
form attached hereto as Exhibit A that the Request for Escrow
Reimbursement covers only Reimbursable Restructuring Costs as
defined herein; and
(b) Supporting documentation provided by Visteon to Ford (but not the
Escrow Agent) showing the Reimbursable Restructuring Costs that
have been incurred, which documentation shall be consistent with
the documentation required to support the expense under FAS No.
146 "Accounting for Costs Associated with Exit or Disposal
Activities", FAS No. 112 "Employer's Accounting for
Postemployment Benefits", FAS No. 87 "Employers' Accounting for
Pensions", FAS No. 106 "Employers' Accounting for Postretirement
Benefits Other than Pensions" or FAS No. 88 "Employers'
Accounting for Settlements and Curtailments of Defined Benefit
Pension Plans and for Termination Benefits", as applicable; or in
each case any successor standard; and
(c) A summary of the Reimbursable Restructuring Costs incurred for
each facility and for each separate restructuring action.
The term "REIMBURSABLE RESTRUCTURING COSTS" means costs incurred after May 24,
2005 by Visteon or its subsidiaries related to those activities to exit the
production of certain commodities or to transfer the production of certain
commodities, close or sell certain manufacturing, technical and/or other
administrative support facilities, or combine facilities, operations, or
workforce, in order to eliminate redundant capabilities, improve future
operations, and/or reduce overall costs, including those directly associated
with exit or disposal activities or related to involuntary and voluntary
employee separation programs that are accounted for in accordance with FAS No.
146 "Accounting for Costs Associated with Exit or Disposal Activities", employee
severance costs incurred as a result of restructuring actions in accordance with
FAS No. 112 "Employer's Accounting for Postemployment Benefits", pension and
other postemployment benefits costs incurred in accordance with FAS No. 87
"Employers' Accounting for Pensions", FAS No. 106 "Employers' Accounting for
Postretirement Benefits Other than Pensions", voluntary separation benefits or
curtailment costs incurred in accordance with FAS No. 88 "Employers' Accounting
for Settlements and Curtailments of Defined Benefit Pension Plans and for
Termination Benefits", amounts related to accrued fringe benefits that require
settlement in cash due to employee separation actions, such as for vacation
benefits, and/or any Separation Costs (as defined in the Reimbursement Agreement
(as defined below)) but only to the extent that Ford is no longer required to
pay for any Separation Costs under the Reimbursement Agreement.
Reimbursable Restructuring Costs do not include costs for routine or ongoing
repositionings and redeployments of productive facilities or workforce (e.g.,
normal plant rearrangement or employee relocation), nor do they include costs
for other routine or ordinary activities that would otherwise have been incurred
(e.g., planning and analysis, general or recurring financial and administrative
support).
The following are illustrative examples (but are not the exclusive examples) of
Reimbursable Restructuring Costs:
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- - Severance pay for employees, including costs related to other benefits such
as out-placement services and continuation of benefits such as medical
coverage
- - Special termination pension and other postemployment benefits
- - The cost of early retirement incentive payments or other voluntary
termination programs that may be offered, including reimbursements to Ford
pursuant to Section 3.01(c)(ii) of the Amended and Restated Employee
Transition Agreement between Ford and Visteon dated as of April 1, 2000 and
restated as of December 19, 2003 and as amended as of the date hereof.
- - Employee retraining costs
- - Relocation expense for retained employees
- - Costs to transfer, relocate and rearrange plants and equipment
- - Cancellation costs, including leased equipment or obligations to perform
under purchase orders
- - Professional costs related to establishing and implementing restructuring
actions
- - Costs that will continue to be incurred under the contract for its
remaining term without economic benefit to the entity (e.g. Fidelity or IT
contracts)
The following are illustrative examples (but are not the exclusive examples) of
costs that do not constitute Reimbursable Restructuring Costs:
- - Pension fund contributions, except as permitted above
- - Non-cash expenses for write-off of capital equipment or inventory
- - Capital spending
- - Debt repayment or interest expense on debt
- - Changes in reserves for environmental, warranty or product liability
- - Wages, salaries, overhead, etc., associated with ongoing operations
2.2 Excess Funds. (a) If any funds remain in the Escrow Fund after
December 31, 2012, then the Escrow Agent shall disburse the balance of the
Escrow Fund, including Escrow Earnings, if any, to Visteon, provided however, if
at any time prior to December 31, 2012 the Escrow Agent receives a written
notice from Ford that Visteon has undergone a Change of Control (defined herein)
then the Escrow Agent shall disburse such funds remaining in the Escrow Fund
after December 31, 2012 to Ford. If the funds remaining in the Escrow Fund after
December 31, 2012 would otherwise be required to be disbursed to Visteon under
the terms of this subsection, then such funds shall not be disbursed to Visteon
until all outstanding Requests for Disbursement shall first be deducted from the
funds remaining or, if any Request for Disbursement is being contested by
Visteon, a final settlement by the parties or a Final Award (defined herein) by
an arbitrator has been made and funds disbursed in accordance with such
settlement or award. If the funds remaining in the Escrow Fund after December
31, 2012 would otherwise be required to be disbursed to Ford under the terms of
this subsection, then such funds shall not be disbursed until all outstanding
Requests for Escrow Reimbursement have been deducted from the funds remaining
or, if any Request for Escrow Reimbursement is being contested by Ford, a final
settlement by the parties or a Final Award by an arbitrator has been made and
funds disbursed in accordance with such settlement or award. The Escrow Agent
shall disburse the balance of the Escrow Fund in accordance with the procedure
set forth in subsection 2.2(b).
(b) Within five Business Days after December 31, 2012, the Escrow
Agent shall give written notice to Ford and Visteon of the Escrow Agent's intent
to disburse the remaining balance of the Escrow Fund. Within fifteen (15)
Business Days after receipt of such notice, each of Ford and Visteon
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shall then give written notice to Escrow Agent and to the other party indicating
which party is entitled to receive the balance of the Escrow Fund. In the event
of a dispute between Ford and Visteon as to the party entitled to the remaining
balance, the matter shall be submitted for dispute resolution in accordance with
subsection 3.3 hereof.
(c) As used in this Section, the term "CHANGE OF CONTROL" means (i) a
liquidation or dissolution of Visteon; (ii) the sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of
all or substantially all of the assets of Visteon and its subsidiaries, taken as
a whole; (iii) a merger, consolidation, share exchange, business combination or
similar extraordinary transaction as a result of which the persons possessing,
immediately prior to the consummation of such transaction, beneficial ownership
of the voting securities of Visteon entitled to vote generally in elections of
directors of Visteon, cease to possess, immediately after consummation of such
transaction, beneficial ownership of voting securities entitling them to
exercise at least 50% of the total voting power of all outstanding securities
entitled to vote generally in elections of directors of Visteon (or, if not
Visteon, the surviving entity resulting from such transaction); or (iv) a
transaction or series of transactions (including by way of merger,
consolidation, sale of stock or otherwise) the result of which is that any
Person or "group" (as defined in Section 13 of the Securities Exchange Act of
1934) becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 promulgated under the Securities Exchange Act of 1934), directly or
indirectly, of more than 50% of the voting power of the outstanding voting stock
of Visteon.
2.3 Instructions. All instructions to the Escrow Agent shall be in
writing, signed by an authorized representative of the party(ies) giving the
instructions.
2.4 Disbursements. All disbursements shall be made by the Escrow Agent
by wire transfer of immediately available funds initiated within three (3)
Business Days after the Escrow Agent is entitled to make reimbursement under
this Agreement. The Escrow Agent shall provide to Ford a statement of each
disbursement made to Visteon at the time that such disbursement is made and
shall provide to Visteon a statement of each disbursement made to Ford at the
time such disbursement is made.
2.5 No Further Deposits Required. Except pursuant to that certain
Reimbursement Agreement dated as of the date hereof between Ford and Visteon
(the "REIMBURSEMENT AGREEMENT") and other than by Ford as stated in subsection
2.6 below, neither Ford nor Visteon is required to deposit any funds in the
Escrow Fund other than as stated in subsection 1.1.
2.6 Disbursements to Ford. If, (i) pursuant to an arbitration award,
court order or written settlement agreement executed by Ford and Visteon or
written instructions from Visteon to the Escrow Agent to make a disbursement to
Ford from the Escrow Fund, Ford or its subsidiaries or affiliates becomes
entitled to recover from Visteon or its subsidiaries or affiliates as a result
of any indemnification obligation contained in, or any breach or default arising
under, any of the Transaction Documents ("VISTEON OBLIGATION"), and (ii) Ford or
the applicable subsidiary or affiliate shall not have received the full amount
of the Visteon Obligation within the time frame provided in such award, order or
agreement, then Ford or the applicable subsidiary or affiliate shall have a
right to deliver a copy of a request for disbursement (each, a "REQUEST FOR
DISBURSEMENT") to the Escrow Agent and to Visteon at the same time. Each Request
for Disbursement shall be accompanied by a copy of the arbitration award, court
order, settlement agreement or written instructions and, in the case of the
submission of an arbitration award, court order or written settlement agreement,
a certificate addressed to the Escrow Agent and Visteon executed by an officer
of Ford stating that Ford is entitled to the amounts set forth in the Request
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for Disbursement based upon such award, order or agreement and the terms of this
Agreement. Upon receipt of such Request for Disbursement and such certificate,
if applicable, the Escrow Agent shall disburse to Ford the amount requested in
the Request for Disbursement. If, however, the award or order that served as the
basis for a disbursement to Ford hereunder is overruled or otherwise vacated by
a final, non-appealable order or pursuant to a written settlement agreement
executed by Ford and Visteon, then Ford shall redeposit into the Escrow Fund the
amounts previously disbursed to Ford hereunder with respect to which the award
or order was overruled or vacated or with respect to which Ford and Visteon have
reached agreement pursuant to such written settlement together with interest at
the applicable rate if so prescribed in such award, order or settlement
agreement. Any disbursements to Ford pursuant to this subsection shall be deemed
to reduce the portion of Escrow Fund that is subject to disbursement at a 50%
rate as provided in subsection 3.1(iii) below, provided, however, that if such
portion is inadequate to cover any such disbursement, the uncovered portion of
the disbursement shall be deemed to reduce the remainder of the Escrow Fund. Any
amounts redeposited by Ford into the Escrow Fund in accordance with this
subsection 2.6 shall be deemed to have been redeposited in the same manner as
they were deemed to have been disbursed.
3. PROCEDURE FOR REIMBURSEMENT.
3.1 Uncontested Reimbursements. If, within fifteen (15) Business Days
after a Request for Escrow Reimbursement is received by the Escrow Agent and
Ford pursuant to subsection 2.1, Ford has not delivered its objection to such
Request for Escrow Reimbursement in writing to Visteon and the Escrow Agent,
then the Escrow Agent shall distribute to Visteon from the Escrow Fund the
amount requested in the Request for Escrow Reimbursement; provided, however,
that (i) until such time that the disbursements from the Escrow Fund exceed Two
Hundred Fifty Million Dollars ($250,000,000) (the "Initial Date"), the Escrow
Agent shall disburse 100% of any Request for Escrow Reimbursement, (ii) after
the Initial Date, an amount equal to the Escrow Earnings as of the Initial Date
(less any amounts paid or payable to the Escrow Agent or other third parties
pursuant to subsection 3.3 and Sections 4, and 7 of this Escrow Agreement up to
and including the Initial Date) ("SPECIAL ESCROW EARNINGS") will also be
available for disbursement at 100% of any Request for Escrow Reimbursement,
(iii) after the Initial Date and the disbursement of all Special Escrow Earnings
in accordance with this Agreement, the Escrow Agent shall disburse only 50% of
any Requests for Escrow Reimbursement up to a total of One Hundred Fifty Million
Dollars ($150,000,000), and (iv) any remaining amounts in the Escrow Fund will
be available for disbursement at 100% of any Request for Escrow Reimbursement.
For example, if, after the Initial Date and the disbursement of all of the
Special Escrow Earnings, Visteon submits a Request for Escrow Reimbursement in
the amount of $5 million, then the Escrow Agent shall disburse only $2.5 million
with respect to such request. If, however, after the disbursement of the Special
Escrow Earnings and Four Hundred Million Dollars ($400,000,000), Visteon submits
a Request for Escrow Reimbursement in the amount of $5 million, then the Escrow
Agent shall disburse to Visteon with respect to such request the lesser of the
amounts remaining in the Escrow Fund and $5 million. If Ford has delivered its
objection to all or any portion of such Request for Escrow Reimbursement, then
notwithstanding the foregoing provisions of this subsection, the Escrow Agent
may distribute to Visteon from the Escrow Fund only such amounts permitted under
subsection 3.2 hereof.
3.2 Contested Reimbursements. If Ford gives Visteon and the Escrow
Agent written notice contesting all or any portion of a Request for Escrow
Reimbursement (a "CONTESTED REIMBURSEMENT") within the fifteen (15) Business Day
period specified in subsection 3.1, then such Contested Reimbursement shall be
resolved by either (i) a written settlement agreement executed by Ford and
Visteon as provided in subsection 3.4 below or (ii) in the absence of such a
written settlement
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agreement, by binding arbitration between Ford and Visteon in accordance with
the terms and provisions of subsection 3.3, provided, however, that Ford shall
not be entitled to contest any portion of a Request for Escrow Reimbursement to
the extent that such portion of the request seeks reimbursement for a specific
category of Reimbursable Restructuring Costs that a Final Award (defined herein)
had ruled was eligible for reimbursement hereunder. Each Contested Reimbursement
shall set forth in reasonable detail the basis for Ford's contest of a Request
for Reimbursement. In the event of a Contested Reimbursement, Ford and Visteon
shall attempt in good faith to agree upon the rights of the respective parties
with respect to such claim. If Visteon and Ford should so agree, "Settlement
Instructions" will be prepared, delivered, and performed in accordance with
subsection 3.4 below. The Escrow Agent shall retain Escrow Funds covered by the
contested portion of the Contested Reimbursement until receipt of a Settlement
Instruction (defined herein) pertaining to such portion of the Contested
Reimbursement from Visteon and Ford or a copy of the Final Award. The Escrow
Agent shall disburse any uncontested portion of the Request for Escrow
Reimbursement in accordance with subsection 2.4 hereof.
3.3 Arbitration of Disputes. If a dispute arises between the parties
relating to this Agreement, the following shall be the sole and exclusive
procedure for enforcing the terms hereof and for seeking relief hereunder:
(i) CPR. Following good faith negotiations between the parties hereto (or,
with respect to a Contested Reimbursement, between Ford and Visteon in
accordance with subsection 3.2 hereof), any dispute arising among the
parties relating to this Agreement including any Contested
Reimbursement that is not resolved in accordance with subsection
3.2(i) will be submitted to mandatory, final and binding arbitration
before a sole arbitrator in accordance with the CPR Rules, including
discovery rules, for Non-Administered Arbitration, as follows. Within
five (5) Business Days after the selection of the arbitrator, each
party shall submit its requested relief to the other parties (except
that in the case of a Contested Reimbursement notice only has to be
given to Ford or Visteon as the case may be) and to the arbitrator
with a view toward settling the matter prior to commencement of
discovery. If no settlement is reached, then discovery shall proceed
subject to the authority of the arbitrator to resolve discovery
disputes between the parties. Upon the conclusion of discovery, each
party shall again submit to the arbitrator its requested relief (which
may be modified from the initial submission) and, in the case of a
Contested Reimbursement, the arbitrator shall select only the entire
requested relief submitted by one party or the other, as the
arbitrator deems most appropriate. The arbitrator shall not select one
party's requested relief as to certain claims or counterclaims and the
other party's requested relief as to other claims or counterclaims;
rather, the arbitrator must only select one or the other party's
entire requested relief on all of the asserted claims and
counterclaims, and the arbitrator will enter a final ruling that
adopts in whole such requested relief, provided, however, that with
respect to a Request for Escrow Reimbursement the arbitrator may act
separately upon each portion of such request that has been contested
under subsection 3.2 hereof. The arbitrator will limit his/her final
ruling to selecting the requested relief he/she considers the most
appropriate from those submitted by the parties.
(ii) Location of Arbitration. Arbitration shall take place in the City of
Dearborn, Michigan unless the parties agree otherwise or the
arbitrator selected by the parties orders otherwise. Punitive or
exemplary damages shall not be awarded. This clause is subject to the
Federal Arbitration Act, 28 U.S.C.A. Section 1, et seq., and judgment
upon the
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award rendered by the arbitrator may be entered by any court having
jurisdiction as set forth in section 13 hereof.
(iii) Payment of Costs. Ford, on the one hand, and Visteon, on the other
hand, will initially fund such deposits and advances as may be
required by the arbitrator in equal proportions, but either party may
advance such amounts. The arbitrator will determine in the Final Award
(defined herein) the party who is the prevailing party and the party
who is not the prevailing party (the "NON-PREVAILING PARTY"). The
Non-Prevailing Party will pay all reasonable costs, fees and expenses
related to the arbitration, including reasonable fees and expenses of
attorneys, accountants and other professionals incurred by the
prevailing party, the fees of each arbitrator, the administrative fee
of the arbitration proceedings and any amounts advanced by the
prevailing party for such items, provided, however, that if the
arbitrator determines that requiring the Non-Prevailing Party to bear
the reasonable costs, fees and expenses set forth in the preceding
sentence would result in manifest injustice, the arbitrator may
apportion such costs, fees and expenses between the parties in such a
manner as the arbitrator deems just and equitable (such costs, fees
and expenses as may be apportioned by the arbitrator pursuant to the
preceding clause, the "ARBITRATION EXPENSES"). If Visteon is the
Non-Prevailing Party, then Visteon and Ford shall instruct the Escrow
Agent to disburse to Ford from the Escrow Fund the Arbitration
Expenses. If the amount of such Arbitration Expenses exceeds the
amount remaining in the Escrow Fund, then Visteon shall pay to Ford,
by wire transfer, such excess as promptly as possible but in no event
later than ten (10) Business Days after the Final Award (defined
herein) is rendered pursuant to subparagraph (v) below. If Ford is the
Non-Prevailing Party, then Ford shall pay to Visteon, by wire
transfer, the Arbitration Expenses as promptly as possible but in no
event later than ten (10) Business Days after such Final Award is
rendered.
(iv) Burden of Proof. Except as may be otherwise expressly provided herein,
for any Contested Reimbursement or any other matter submitted to
arbitration hereunder, the burden of proof will be as it would have
been if the claim were litigated in a judicial proceeding in a
Michigan state court and governed exclusively by the internal laws of
the State of Michigan, without regard to the principles of choice of
law or conflicts of law of any jurisdiction.
(v) Award. Upon the conclusion of any arbitration proceedings hereunder,
the arbitrator will render findings of fact and conclusions of law and
a final written arbitration award setting forth its resolution of the
matters submitted for resolution, the basis and reasons therefor and
the Arbitration Expenses (the "FINAL AWARD") and will deliver such
documents to the parties together with a signed copy of the Final
Award. Subject to the provisions of subparagraph (vii) below, the
Final Award will constitute a conclusive determination of all issues
in question that shall be, binding upon the parties hereto, and shall
include an affirmative statement to such effect. To the extent that
the Final Award determines that Visteon or Ford is entitled to any
monies from the Escrow Fund then the Escrow Agent shall make the
disbursement in accordance with the terms of such Final Award.
(vi) Timing. The parties and the arbitrator will conclude each arbitration
pursuant to subsection 3.3 as promptly as possible.
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(vii) Terms of Arbitration. The arbitrator chosen in accordance with these
provisions will not have the power to alter, amend or otherwise affect
the terms of these arbitration provisions or the other provisions of
this Agreement.
3.4 Settled Claims. If a dispute hereunder is settled by a written
settlement agreement executed by Visteon and Ford (a "SETTLED CLAIM"), then
Visteon and Ford will promptly deliver such executed settlement agreement to the
Escrow Agent together with written instructions executed by both an officer of
Ford and an officer of Visteon to the Escrow Agent ("SETTLEMENT INSTRUCTIONS")
which will, in accordance with and subject to the terms of the written
settlement agreement, instruct the Escrow Agent either: (i) to release a stated
amount of the Escrow Fund to Visteon or to Ford pursuant to such settlement
agreement; and/or (ii) in the case of a Contested Reimbursement, that no action
need be taken by the Escrow Agent with respect to such request. On the third
(3rd) Business Day following its receipt of Settlement Instructions, the Escrow
Agent will promptly release from the Escrow Fund and transfer to Visteon or Ford
that amount of the Escrow Fund that Ford and Visteon have agreed in the
Settlement Instructions will be transferred to such party.
4. LIMITATION OF THE ESCROW AGENT'S LIABILITY.
4.1 Limitation of Liability. The Escrow Agent shall only have those
duties as are expressly set forth in this Agreement, which duties are merely
ministerial in nature, and no implied duties shall be read into this Agreement
other than as set forth in the last sentence of this subsection. The Escrow
Agent shall incur no liability with respect to any action taken or suffered by
it in reliance upon any notice, direction, instruction, consent, statement or
other document reasonably believed by it to be genuine and duly authorized, nor
for any other action or inaction, except its own willful misconduct, fraud or
gross negligence. The Escrow Agent shall have no duty to inquire into or
investigate the validity, accuracy or content of any document delivered to it.
The Escrow Agent shall not be responsible for the validity or sufficiency of
this Agreement. In all questions arising under this Agreement, the Escrow Agent
may rely on the advice or opinion of counsel, and for anything done, omitted or
suffered in good faith by the Escrow Agent based on such advice, the Escrow
Agent shall not be liable to anyone. The Escrow Agent shall not be required to
take any action hereunder involving any expense unless it shall have been
furnished with reasonably acceptable indemnification. The Escrow Agent shall
have no duties or responsibilities other than those expressly set forth in this
Agreement and the implied duty of good faith and fair dealing.
4.2 Resolution of Conflicting Demands. In the event conflicting
demands are made or conflicting notices are served upon the Escrow Agent with
respect to the Escrow Fund, the Escrow Agent shall have the absolute right, at
the Escrow Agent's election, to do any of the following: (i) resign so a
successor escrow agent can be appointed pursuant to Section 8; submit the matter
to binding arbitration in accordance with subsection 3.3 hereof, or (ii) give
written notice to Ford and Visteon that it has received conflicting instructions
and is refraining from taking action until it receives instructions consented to
in writing by both Ford and Visteon.
4.3 Indemnification. Each of Ford and Visteon, jointly and severally
(each an "INDEMNIFYING PARTY" and together the "Indemnifying Parties"), hereby
covenants and agrees to reimburse, indemnify and hold harmless the Escrow Agent,
the Escrow Agent's officers, directors, employees, counsel and agents (severally
and collectively, the "ESCROW AGENT INDEMNITEES"), from and against any loss,
damage, liability or loss suffered, incurred by, or asserted against the Escrow
Agent Indemnitees (including amounts paid in settlement of any action, suit,
proceeding, or claim brought or
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threatened to be brought and including reasonable expenses of legal counsel)
arising out of, in connection with or based upon any act or omission by the
Escrow Agent Indemnitees relating in any way to this Agreement or the Escrow
Agent's services hereunder. This indemnity shall exclude any damage, liability
or loss arising out of willful misconduct, fraud or gross negligence on the part
of an Escrow Agent Indemnitee.
4.4 Defense. Each Indemnifying Party may participate at its own
expense in the defense of any claim or action that may be asserted against the
Escrow Agent Indemnitees. The Escrow Agent Indemnitees' right to indemnification
hereunder shall survive the Escrow Agent's resignation or removal as the Escrow
Agent and shall survive the termination of this Agreement by lapse of time or
otherwise.
4.5 Notice to Indemnifying Parties. The Escrow Agent hereby agrees
that the Escrow Agent shall notify each Indemnifying Party by letter or
facsimile, confirmed by letter, and by e-mail of any receipt by an the Escrow
Agent Indemnitee of a written assertion of a claim against the Escrow Agent
Indemnitee, or any action commenced against the Escrow Agent Indemnitee, within
ten (10) days after the Escrow Agent Indemnitee's receipt of written notice of
such claim. However, the Escrow Agent's failure to so notify each Indemnifying
Party shall not operate in any manner whatsoever to relieve an Indemnifying
Party from any liability that it may have otherwise on account of this Section
4, except to the extent that such Indemnifying Party is prejudiced by the Escrow
Agent's failure.
4.6 Use of Agents. The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either directly or
by or through its agents or attorneys.
4.7 Damages. In no event shall the Escrow Agent be liable for any
indirect, punitive, special or consequential damages, whether or not the Escrow
Agent shall have been informed of the likelihood of such damages, or any amount
in excess and regardless of the form of action.
4.8 Deemed Notice. The Escrow Agent shall not be deemed to have notice
of any Request for Escrow Reimbursement, response thereto, demand with respect
thereto or other fact or claim unless it is actually known by an officer charged
with responsibility for administering this Agreement or unless it is set forth
in a writing received by the Escrow Agent and making specific reference to this
Agreement. If any notice, certificate or other document is required to be
delivered to the Escrow Agent and any other person, the Escrow Agent may assume
without inquiry (unless the Escrow Agent has written notice to the contrary)
that any such document which the Escrow Agent has received has also been
received by such other person.
4.9 Survival of Indemnification. All indemnification contained in this
Agreement shall survive the resignation or removal of the Escrow Agent, and
shall survive the termination of this Agreement.
4.10 Liability for Other Parties. In no event shall the Escrow Agent
have any liability for any failure or inability of any of the other parties
hereto to perform or observe its duties under the Agreement, or by reason of a
breach of this Agreement by any of the other parties hereto. In no event shall
the Escrow Agent be obligated to take any action against any of the other
parties hereto to compel performance hereunder.
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4.11 Arbitration. The Escrow Agent shall in no instance be obligated
to commence, prosecute or defend any legal or arbitration proceedings in
connection herewith. The Escrow Agent shall be authorized and entitled, however,
to submit to arbitration pursuant to subsection 3.3 hereof any matter or dispute
it may deem appropriate in order, to obtain a necessary declaration of rights,
or to appoint a successor upon resignation (and after failure by Visteon to
appoint a successor, as provided hereinafter).
4.12 Ambiguity. In the event of any ambiguity or uncertainty under
this Agreement, the Escrow Agent may, in its discretion, refrain from taking
action, and may retain the Escrow Fund then held by it until and unless it
receives written instruction signed by Ford and Visteon that eliminates such
uncertainty or ambiguity.
4.13 Self-Dealing. The Escrow Agent is hereby authorized, in making or
disposing of any investment permitted by this Agreement, to deal with itself (in
its individual capacity) or with any one or more of its affiliates, whether it
or such affiliate is acting as a subagent of the Escrow Agent or for any third
person or dealing as principal for its own account.
4.14 Distribution. Notwithstanding any term appearing in this
Agreement to the contrary, in no instance shall the Escrow Agent be required or
obligated to distribute any portion of the Escrow Fund (or take other action
that may be called for hereunder to be taken by the Escrow Agent) sooner than
two (2) Business Days after (i) it has received the applicable documents
required under this Agreement in good form, or (ii) passage of the applicable
time period (or both, as applicable under the terms of this Agreement), as the
case may be.
4.15 Denomination of Payment. All payments to or by the Escrow Agent
hereunder shall be in U.S. dollars.
5. NOTICES. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission and electronic
mail ("E-MAIL") transmission, so long as a receipt of such e-mail is requested
and received) and shall be given,
If to Ford: Ford Motor Company
11th Floor
One American Road
Dearborn, Michigan 48121
Attn: Secretary
Facsimile: 1-313-248-8713
psherry@ford.com
with a copy to: Ford Motor Company
320 WHQ
One American Road
Dearborn, Michigan 48121
Attn: Marcia Nunn, Managing Counsel
Facsimile: 1-313-337-3209
mnunn@ford.com
If to Visteon Visteon Corporation
One Village Center Drive
Van Buren Twp., MI 48111
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Attn: John Donofrio, General Counsel
Facsimile 1-734-710-7132
jdonofri@visteon.com
with a copy to: Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attn: Michael E. Lubowitz
Facsimile: 1-212-310-8007
michael.lubowitz@weil.com
If to Escrow Agent: Deutsche Bank Trust Company Americas
60 Wall Street, 27th Floor, Mail Stop: NYC60-2710
New York, NY 10005
Attn: Aldrin Bayne, Escrow Team
Fax: 1-732-578-4593
or such other address, facsimile number or e-mail address as such party may
hereafter specify for the purpose by notice to the other parties hereto. All
such notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
6. GENERAL.
6.1 Governing Law. The internal laws of the State of Michigan,
irrespective of its choice of law principles, shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto, provided however, that the
rights, duties and indemnities of the Escrow Agent shall be interpreted under
New York law.
6.2 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
6.3 Entire Agreement. This Agreement and the exhibits hereto ( and
with respect to Ford and Visteon only, the Reimbursement Agreement) constitute
the entire understanding and agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied, written or oral,
between the parties with respect hereto. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
6.4 Waivers. No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing.
No waiver by any party of any such condition or breach, in any one instance,
shall be deemed to be a further or continuing waiver of any such condition or
breach or a waiver of any other condition or breach of any other provision
contained herein.
6.5 Certain Definitions. As used herein, (a) the term "BUSINESS DAY"
means a day, other than a Saturday, Sunday or other day on which commercial
banks in Detroit, Michigan and New
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York, New York are authorized or required by law to close; and (b) the term
"TRANSACTION DOCUMENTS" shall mean the Master Agreement, the Contribution
Agreement Transaction Documents as defined in that certain Contribution
Agreement dated as of September 12, 2005 between Visteon and Automotive
Components Holdings, Inc. (f/k/a VFH Holdings, Inc.); the Visteon "B"
Transaction Documents as defined in that certain Visteon "B" Purchase Agreement
dated as of September 12, 2005 between Ford and Visteon and the Visteon "A"
Transaction Documents as defined in that certain Visteon "A" Transaction
Agreement dated as of September 12, 2005. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation", whether or not they are in fact
followed by those words or words of like import. When a reference is made in
this Agreement to a Section, subsection, Exhibit or Schedule, such reference
shall be to a Section or subsection of, or an Exhibit or Schedule to, this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the singular is used herein, the same
shall include the plural, and whenever the plural is used herein, the same shall
include the singular, where appropriate.
6.6 U. S. Patriot Act. The parties hereto acknowledge that, in
accordance with Section 326 of the USA Patriot Act the Escrow Agent, like all
financial institutions, is required to obtain, verify, and record information
that identifies each person or legal entity that opens an account. The parties
to this Agreement agree that they will provide the Escrow Agent with such
information as it may reasonably request in order for the Escrow Agent to
satisfy the requirements of the USA Patriot Act.
7. COMPENSATION AND EXPENSES OF THE ESCROW AGENT. All fees and expenses of the
Escrow Agent incurred in the ordinary course of performing its responsibilities
hereunder, as set forth on the Escrow Agent's fee schedule attached hereto as
Exhibit B, and any other fees and expenses incurred by the Escrow Agent for
which it is permitted to be reimbursed hereunder (except as specified in the
following sentence), shall be paid from the Escrow Fund. Any fees or expenses
(including the reasonable fees or expenses of outside counsel to the Escrow
Agent) incurred by the Escrow Agent in connection with a dispute over the
distribution of Escrow Fund or the validity of a Request for Escrow
Reimbursement shall be paid by the Non-Prevailing Party within thirty (30) days
after Escrow Agent has supplied a written invoice to the Non-Prevailing Party.
8. SUCCESSOR TO THE ESCROW AGENT. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow Agent
may resign and be discharged from its duties or obligations hereunder by giving
notice of its resignation to the parties to this Agreement, specifying a date
not less than thirty (30) days following such notice date of when such
resignation shall take effect. If, and only if, a successor escrow agent is
appointed pursuant to the resignation of the Escrow Agent the Escrow Agent shall
refund to the Escrow Fund any prepaid but unearned fees previously paid from the
Escrow Fund to the Escrow Agent hereunder. Visteon, with the consent of Ford,
which shall not be unreasonably withheld or delayed, shall designate a successor
escrow agent prior to the expiration of such thirty-day period by giving written
notice to the Escrow Agent and Ford. Visteon may at any time appoint any
successor escrow agent with the consent of Ford, which consent shall not be
unreasonably withheld or delayed. If no successor escrow agent is named by
Visteon, the Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent. The Escrow Agent shall promptly
transfer the Escrow Fund to such designated successor.
It is further understood that any corporation into which the Escrow
Agent in its individual capacity may be merged or converted or with which it may
be consolidated, or any corporation resulting
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from any merger, conversion or consolidation to which the Escrow Agent in its
individual capacity shall be a party, or any corporation to which substantially
all the corporate trust business of the Escrow Agent in its individual capacity
(including the administration of this Agreement) may be transferred, shall be
the Escrow Agent under this Agreement without further act.
9. LIMITATION OF RESPONSIBILITY. The Escrow Agent's duties are limited to those
set forth in this Agreement and applicable laws, and the Escrow Agent, acting as
such under this Agreement, is not charged with knowledge of or any duties or
responsibilities under any other document or agreement.
10. FORCE MAJEURE. If either party hereto is rendered unable, wholly or in part,
by Force Majeure (as defined herein) to perform its obligations hereunder (other
than the obligation to pay money), such party shall give prompt notice to the
other party with reasonable particulars including the probable extent of the
inability to perform such obligation. Upon the giving of such notice, the
obligation of such party shall be suspended but only to the extent and for the
same time period it is affected by such Force Majeure. The affected party shall
use all possible diligence to remove the effect of such Force Majeure. For
purposes of this Agreement, the term "FORCE MAJEURE" shall mean acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, acts of terror, communication line failures,
computer viruses, power failures, earthquakes or other disasters.
11. REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating
thereto, including, without limitation, (a) consents, waivers and modifications
which may hereafter be executed, and (b) certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, optical disk, micro-card, miniature photographic or
other similar process. The parties hereto agree that any such reproduction shall
be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
12. AMENDMENT. This Agreement may be amended by the written agreement of Ford,
the Escrow Agent and Visteon; provided that, if the Escrow Agent does not agree
to an amendment agreed upon by Ford and Visteon (except an amendment adversely
affecting the rights or protections of the Escrow Agent), the Escrow Agent shall
resign and Visteon shall appoint, with the consent of Ford, which consent shall
not be unreasonably withheld or delayed, a successor to the Escrow Agent in
accordance with Section 8 above.
13. CONSENT TO JURISDICTION AND SERVICE RELATING TO DISPUTES The parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
in the State of Michigan (and of any federal court located in said state) in
connection with any actions or proceedings to enter a judgment upon the Final
Award entered by the arbitrator hereunder or to award injunctive relief as
provided in Section 17 below. In any such action or proceeding, the parties
hereby absolutely and irrevocably waive personal service of any summons,
complaint, declaration or other process and hereby absolutely and irrevocably
agree that the service thereof may be made by certified or registered
first-class mail directed to the parties hereto at their respective addresses in
accordance with Section 5 hereof.
14. TAX REPORTING DOCUMENTATION.
(a) Visteon and Ford each shall provide the Escrow Agent with its tax
identification numbers and other forms and documents that the Escrow Agent may
reasonably request
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(collectively, "TAX REPORTING DOCUMENTATION") to the Escrow Agent within thirty
(30) days of the date of receipt of the Escrow Fund by the Escrow Agent. The
parties hereto understand that, if such Tax Reporting Documentation is not so
certified to the Escrow Agent, the Escrow Agent shall be required by the
Internal Revenue Code, as it may be amended from time to time, to withhold a
portion of any interest or other income earned on the investment of monies or
other property held by the Escrow Agent pursuant to this Agreement.
(b) The parties hereto agree that, for tax reporting purposes, all
Escrow Earnings, if any, attributable to the Escrow Fund held in the Escrow Fund
by the Escrow Agent pursuant to this Agreement shall be allocable to Visteon.
15. AUTHORIZED PERSONS. For purposes of sending and receiving instructions or
directions hereunder, all such instructions or directions shall be, and the
Escrow Agent may conclusively rely upon such instructions or directions,
delivered, and executed by representatives of Visteon and Ford designated on
Schedule I attached hereto and made a part hereof (each such representative, an
"Authorized Person") which such designation shall include specimen signatures of
such representatives, as such Schedule I may be updated from time to time.
16. SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other governmental
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
17. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage would
occur if any provision of this Agreement were not performed in accordance with
the terms hereof and that the parties hereto shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement or to enforce specifically
the performance of the terms and provisions hereof in the courts specified in
Section 13 hereof, in addition to any other remedy to which they are entitled at
law or in equity.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date set forth above.
FORD MOTOR COMPANY VISTEON CORPORATION
By: /s/ Donat R. Leclair By: /s/ James F. Palmer
--------------------------------- ------------------------------------
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
ESCROW AGENT:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Richard L. Buckwalter
---------------------------------
Title: Vice President
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