EXHIBIT 10.47
14 AUGUST 2006
VISTEON FINANCIAL CENTRE P.L.C.
(AS MASTER PURCHASER)
VISTEON CORPORATION
(AS PARENT)
VISTEON NETHERLANDS FINANCE B.V.
(AS SUBORDINATED VLN FACILITY PROVIDER)
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 6
(AS LENDERS AND NOTEHOLDERS)
EACH OF THE ENTITIES LISTED IN SCHEDULE 7
(AS SELLERS AND SERVICERS)
VISTEON UK LIMITED
VISTEON DEUTSCHLAND GMBH
VISTEON SYSTEMES INTERIEURS S.A.S.
VISTEON ARDENNES INDUSTRIES S.A.S.
VISTEON SISTEMAS INTERIORES ESPANA S.L.
CADIZ ELECTRONICA S.A.
VISTEON PORTUGUESA LIMITED
(EACH AS SELLERS AND AS SERVICERS)
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
(AS SECURITY TRUSTEE)
CITIBANK INTERNATIONAL PLC
(AS FUNDING AGENT)
CITICORP USA, INC.
(AS COLLATERAL MONITORING AGENT)
CITIBANK, N.A.
(AS MASTER PURCHASER TRANSACTION ACCOUNT BANK AND MP CASH MANAGER)
WILMINGTON TRUST SP SERVICES (DUBLIN) LIMITED
(AS CORPORATE ADMINISTRATOR)
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MASTER DEFINITIONS AND FRAMEWORK
DEED
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(SEAL) FRESHFIELDS BRUCKHAUS DERINGER
CONTENTS
CLAUSE PAGE
- ------ ----
1. INTERPRETATION....................................................... 2
2. DEFINITIONS.......................................................... 2
3. AGREEMENT............................................................ 47
4. JURISDICTION......................................................... 47
5. FURTHER ASSURANCES................................................... 49
6. NOTICES.............................................................. 49
7. YIELD PROTECTION INDEMNITIES......................................... 56
8. DEFAULT INTEREST..................................................... 58
9. SELLER AND SERVICER INDEMNITIES AND UNDERTAKING BY THE MASTER
PURCHASER............................................................ 59
10. COLLATERAL MONITORING AGENT.......................................... 63
11. FEES, COSTS, EXPENSES AND TAXATION................................... 68
12. WAIVERS; REMEDIES CUMULATIVE......................................... 72
13. MODIFICATION AND WAIVER.............................................. 72
14. ENTIRE AGREEMENT..................................................... 75
15. NO LIABILITY......................................................... 75
16. NO PETITION.......................................................... 75
17. LIMITED RECOURSE..................................................... 76
18. CONDITIONS PRECEDENT................................................. 76
19. MISCELLANEOUS PROVISIONS............................................. 77
20. INCREASE OF VARIABLE FUNDING FACILITY LIMIT.......................... 78
21. CASH FLOW MANAGEMENT................................................. 80
22. COUNTERPARTS......................................................... 81
23. CONFIDENTIALITY...................................................... 81
24. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999......................... 82
25. SECURITY TRUSTEE PARTY TO TRANSACTION DOCUMENTS...................... 82
26. CHANGE OF SECURITY TRUSTEE........................................... 83
27. TRUSTEE ACT.......................................................... 83
28. GOVERNING LAW........................................................ 84
SCHEDULE 1 TERMINATION EVENTS............................................ 97
SCHEDULE 2 SERVICER DEFAULTS............................................. 101
SCHEDULE 3 CONDITIONS PRECEDENT.......................................... 103
PART A INITIAL CONDITIONS PRECEDENT................................... 103
PART B CONDITIONS PRECEDENT TO ALL PURCHASES.......................... 106
PART C CONDITIONS PRECEDENT TO PURCHASES OF FRENCH RECEIVABLES........ 107
SCHEDULE 4 FORM OF FRAMEWORK DEED ACCESSION DEED......................... 108
SCHEDULE 5 CONCENTRATION LIMITS.......................................... 110
SCHEDULE 6 THE LENDERS AND NOTEHOLDERS................................... 111
SCHEDULE 7 THE SELLERS AND THE SERVICERS................................. 113
SCHEDULE 8 NON-FRENCH RECEIVABLES DEPOSIT ACCOUNTS....................... 114
SCHEDULE 9 SELLER CREDIT AND COLLECTION PROCEDURES....................... 115
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THIS DEED is made on 14 August 2006
BETWEEN:
(1) VISTEON FINANCIAL CENTRE P.L.C., a company incorporated in Ireland,
registered in Ireland with the Companies Registration Office with number
423820, whose registered office is at First Floor, 7 Exchange Place,
International Financial Services Centre, Dublin 1, Ireland (the MASTER
PURCHASER and the ISSUER);
(2) VISTEON CORPORATION, a corporation incorporated under the laws of the State
of Delaware with its principal place of business at One Village Center
Drive, Van Buren Township, Michigan 48111, U.S.A. (the PARENT);
(3) VISTEON NETHERLANDS FINANCE B.V., a private company with limited liability,
incorporated and existing under the laws of the Netherlands, having its
corporate seat at Rotterdam, the Netherlands and having its offices at
Weena 340, 3012 NJ Rotterdam, The Netherlands (the SUBORDINATED VLN
FACILITY PROVIDER);
(4) each of the entities listed in Schedule 6 (the LENDERS and the
NOTEHOLDERS);
(5) each of the entities listed in Schedule 7 (the SELLERS and the SERVICERS);
(6) THE LAW DEBENTURE TRUST CORPORATION P.L.C., a company incorporated in
England and Wales with limited liability whose registered office is at
Fifth Floor, 100 Wood Street, London EC2V 7EX (the SECURITY TRUSTEE);
(7) CITIBANK INTERNATIONAL PLC, a company incorporated in England and Wales
with limited liability whose registered office is at Citigroup Centre,
Canada Square, Canary Wharf, London E14 5LB (the FUNDING AGENT);
(8) CITICORP USA, INC. a corporation incorporated in the State of Delaware with
its principal office at 399 Park Avenue, New York, New York, U.S.A. (the
COLLATERAL MONITORING AGENT);
(9) CITIBANK, N.A., a national banking association formed under the banking
laws of the United States of America acting through its London branch at
Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB (the MASTER
PURCHASER TRANSACTION ACCOUNT BANK and the MP CASH MANAGER);
(10) WILMINGTON TRUST SP SERVICES (DUBLIN) LIMITED, a company incorporated with
limited liability in Ireland, registered in Ireland with the Companies
Registration Office with number 318390, whose registered office is at First
Floor, 7 Exchange Place, International Financial Services Centre, Dublin 1,
Ireland (the CORPORATE ADMINISTRATOR),
(together the PARTIES).
BACKGROUND:
(A) The Sellers wish to sell and the Master Purchaser wishes to purchase all the
Receivables (except the French Receivables and the Excluded Receivables) on the
terms and subject to the conditions set out in this Agreement.
(B) The Sellers wish to sell the French Receivables to FCC Visteon, which will
issue units to the Master Purchaser to fund the purchase of the French
Receivables pursuant to the FCC Documents.
(C) The Sellers wish to sell and the Master Purchaser wishes to purchase
Receivables and trust interests backed by Receivables, on the terms and subject
to the conditions set out in the Master Receivables Purchase and Servicing
Agreement, and certain units issued by FCC Visteon backed by Receivables, to be
funded by means of variable loan notes to be issued pursuant to the Variable
Funding Agreement and subordinated notes to be issued pursuant to the
Subordinated VLN Facility Agreement.
1. INTERPRETATION
1.1 Capitalised terms in this Deed shall, except where the context otherwise
requires and save where otherwise defined in this Deed, have the meanings given
to them in Clause 2.1 (as it may be amended, varied or supplemented from time to
time with the consent of the parties to this Deed) and this Deed shall be
construed in accordance with the principles of construction set out in Clauses
2.2 to 2.9.
1.2 Where any party to this Deed from time to time acts in more than one
capacity under a Transaction Document, the provisions of this Deed shall apply
to it as though it were a separate party in each such capacity except insofar as
they require it in one capacity to give any notice or information to itself in
another capacity.
2. DEFINITIONS
2.1 In any agreement, instrument or deed expressly and specifically
incorporating by reference this Master Definitions and Framework Deed the
following expressions shall, except where the context otherwise requires and
except where otherwise defined therein, have the following meanings:
ACCOUNT CONTROL AGREEMENTS means the UK Account Control Deed, the German Account
Control Agreement, any Portuguese Account Control Agreement, the Spanish Deeds
of Pledge and each of the FCC Account Control Agreements;
ACCREDITED INVESTOR means an "accredited investor" within the meaning of Rule
501(a) under the Securities Act;
ADJUSTED ADVANCE RATE PERCENTAGE means, on any date, the then current Advance
Rate Percentage less the Required Dilution Reserve Percentage;
ADVANCE PURCHASE PRICE has the meaning given to it in Clause 3.6 (Advance
Purchase Price) of the Master Receivables Purchase and Servicing Agreement;
ADVANCE RATE PERCENTAGE means 85 per cent. or such other percentage determined
by the Collateral Monitoring Agent, from time to time, using its reasonable
discretion;
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AFFECTED PERSON has the meaning given to it in Clause 10.1 of the Variable
Funding Agreement;
AFFILIATE or AFFILIATE means, as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by or is under common control
with such Person or is a director or officer of such Person;
AGGREGATE SUBORDINATED VLN REQUIRED AMOUNT means as at the Funding Date and as
at any Determination Date, an amount equal to the sum of the USD Subordinated
VLN Required Amount, the USD Equivalent of the EUR Subordinated VLN Required
Amount and the USD Equivalent of the GBP Subordinated VLN Required Amount;
AGGREGATE USD EQUIVALENT PURCHASE PRICE means as at any date an amount
calculated as being equal to:
A - (A x B)
where
A = the aggregate of the USD Equivalent of the Outstanding Balances of all
Purchased Receivables as at such date; and
B = the Discount Percentage calculated (if such date is a Monthly Determination
Date) on such date or (if such date is not a Monthly Determination Date) on the
immediately preceding Monthly Determination Date;
AGREED CURRENCIES means USD, EUR and GBP, each being an AGREED CURRENCY;
ASSIGNABLE RECEIVABLES means any Receivables which are not either (i) English
Restricted Receivables, (ii) Excluded Receivables or (iii) French Receivables;
AUDITORS means the auditors from time to time of the Master Purchaser;
AVERAGE RECEIVABLES BALANCE means at any time in respect of an Obligor an amount
in USD equal to (i) the sum of the Peak Receivables Balance in respect of that
Obligor for the most recent complete Monthly Determination Period and the Peak
Receivables Balance in respect of that Obligor for each of the 5 consecutive
Monthly Determination Periods immediately preceding such Monthly Determination
Period, divided by (ii) 6;
BUSINESS DAY means a day (other than a Saturday or a Sunday) on which banks are
generally open for business in London, Paris, Frankfurt, Madrid, Lisbon and
Dublin and (to the extent that it relates to a payment to be made in USD) which
is a day on which banks are generally open for business in New York and (to the
extent that it relates to a payment to be made in EUR) which is a TARGET Day;
CASH CONTROL EVENTS means the occurrence of any of the following events:
(a) any Termination Event that has not been waived; or
(b) an event that but for the giving of notice or the lapse of time would
constitute a Termination Event of the kind described in paragraphs (a)
(unless such event
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arises as a result of a technical or operational error or malfunction),
(j), (m) or (n) of Schedule 1;
(c) at any time the aggregate USD Equivalent of the Principal Amount
Outstanding of all Notes is and continues to be greater than an amount
equal to the lower of (i) the Variable Funding Facility Limit less USD
30,000,000 and (ii) the product of the Net Receivables Pool Balance and the
Adjusted Advance Rate less USD 30,000,000 and the Collateral Monitoring
Agent acting either on its discretion or on the instruction of the Majority
Lenders has notified the Parent in writing that the occurrence thereof
constitutes a Cash Control Event and provided that the Majority Lenders
have not waived the occurrence of such event as a Cash Control Event,
provided that a Cash Control Event of the type described in paragraph (c) above
will lapse if and as soon as the aggregate USD Equivalent of the Principal
Amount Outstanding of all Notes ceases to be greater than the amount equal to
the lower of (i) the Variable Funding Facility Limit less USD 30,000,000 and
(ii) the product of the Net Receivables Pool Balance and the Adjusted Advance
Rate less USD 30,000,000;
CASH MANAGEMENT AGREEMENT means the cash management agreement dated on or about
the Closing Date entered into between the Master Purchaser, Citibank, N.A. as MP
Cash Manager, the Master Purchaser Transaction Account Bank and the Security
Trustee;
CHANGE IN LAW means (a) the adoption of any law, rule or regulation after the
Closing Date, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
Closing Date or (c) compliance by any Lender or Noteholder (or, for purposes of
Clause 7.2, by any lending office of such Lender or Noteholder or by such
Lender's or Noteholder's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the Closing Date;
CHANGE OF CONTROL means the occurrence of any of the following after the Closing
Date:
(a) with respect to a Seller, more than 51 per cent. of the issued voting share
capital of that Seller ceases to be held directly or indirectly, by the
Parent
(b) with respect to the Parent, either (i) any "person" or "group" (as such
terms are used in Section 13(d) and 14(d) of the United States Securities
Exchange Act of 1934, as amended (the EXCHANGE ACT)) shall become, or
obtain rights (whether by means of warrants, options or otherwise) to
become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of more than 50 per cent.
of the outstanding common stock of the Parent, or (ii) the board of
directors of the Parent shall cease to consist of a majority of Continuing
Directors;
CHARGEBACKS means an amount charged to an Obligor in respect of a previously
invoiced Receivable following a failure by the Obligor to pay such Receivable in
full as a result of a dispute or error;
CITIBANK means Citibank, N.A., a national banking association formed under the
laws of the United States of America;
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CITIGROUP FEE LETTER means the fee letter dated 9 August 2006 between Visteon
Corporation and Citigroup Global Markets Inc.;
CLOSING DATE means 14 August 2006;
COLLATERAL MONITORING AGENT means Citicorp USA, Inc. or such other person
appointed as Collateral Monitoring Agent in accordance with Clause 10;
COLLECTIONS means with respect to any Purchased Receivable, all cash collections
and other cash proceeds of such Receivable (including without limitation cash
proceeds of cheques, promissory notes, bills of exchange or other instruments
and wire transfers) received into a Deposit Account during a Determination
Period, including, without limitation, amounts received in respect of Value
Added Tax, all finance charges, if any, all cash proceeds of the Related
Security with respect to such Receivable, and any amounts received from any
Seller in respect of Deemed Collections of such Receivable;
COMMITMENT FEE means a fee payable monthly in arrears on each Monthly Settlement
Date in USD to the Funding Agent for the account of the Lenders calculated on a
daily basis in an amount equal to 0.375 per cent. per annum of the amount by
which the Variable Funding Facility Limit exceeds the USD Equivalent of the
aggregate Principal Amount Outstanding of all Notes from time to time;
COMMITMENT LETTERS means the commitment letter dated 9 August 2006 from
Citigroup Global Markets Inc., J.P. Morgan Securities Inc., JPMorgan Chase Bank,
N.A. to the Parent and the commitment letter dated 19 July 2006 from UBS Loan
Finance LLC to the Parent or in each case any subsequent commitment letters
expressed to replace such letters;
COMMITMENT PROPORTION means, in respect of any Lender and/or Noteholder either
(i) the percentage set out against that Lender's or Noteholder's name in the
third column of Schedule 1 to the Variable Funding Agreement less any part of
that percentage commitment transferred by that Lender or Noteholder to another
Noteholder in accordance with the provisions of the Variable Funding Agreement
and the Conditions, or (ii) as applicable, the percentage set out as a
Noteholder's Commitment Proportion in a Note Transfer less any part of that
percentage commitment transferred by that Noteholder in accordance with the
provisions of the Variable Funding Agreement and the Conditions after the date
of such Note Transfer, or (iii) in each case such other percentage applicable to
that Lender or Noteholder calculated in accordance with Clause 13.2 of the
Variable Funding Agreement;
CONCENTRATION LIMIT has the meaning set out in paragraph (o) of Schedule 3 to
the Master Receivables Purchase and Servicing Agreement;
CONDITION and CONDITIONS means, in relation to the Notes, the terms and
conditions applicable to the Notes as set out in Schedule 2 to the Variable
Funding Agreement;
CONDITIONS PRECEDENT means the conditions precedent set out in Schedule 3 to
this Deed;
CONTINUING DIRECTORS means the directors of the Parent on the Closing Date and
each other director, if, in each case, such other director's nomination for
election to the board of directors of the Parent is recommended by the committee
of the board of directors
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designated to make such recommendations, provided that such committees has been
appointed by not less than 51 per cent. of the then Continuing Directors;
CONTRACT means a contract concluded between the Seller and an Obligor, pursuant
to which a Receivable arises;
CORPORATE ADMINISTRATOR means Wilmington Trust SP Services (Dublin) Limited, in
its capacity as such under the Corporate Services Agreement;
CORPORATE SERVICES AGREEMENT means the agreement dated on or about the date of
this Deed between the Master Purchaser, the Corporate Administrator and the
Security Trustee;
CUT-OFF DATE means 31 July 2006;
DEBT means, as of any date in relation to any person, the sum of, without
duplication (a) the amount outstanding on such date under notes, bonds,
debentures, commercial paper or other similar evidences of indebtedness for
money borrowed of such person and (b) all other amounts that would appear as
debt on a consolidated balance sheet of such person and its subsidiaries as of
such date in accordance with generally accepted accounting principles in the
United States of America as in effect from time to time (excluding items which
appear in the footnotes only);
DEBT RATING for any Person, means the rating by S&P or Moody's of such Person's
unsecured, unsubordinated and unguaranteed long term debt obligations;
DEEMED COLLECTIONS means, any amounts paid by a Seller to the Master Purchaser
pursuant to Clauses 7.1 or 7.2 of the Master Receivables Purchase and Servicing
Agreement;
DEFAULT RATE means, for any Interest Period, the applicable Reference Rate plus
two per cent (2%);
DEFAULTED RECEIVABLE means a Receivable which remains unpaid for more than 90
days from the original due date, or, in respect of a Receivable that is required
to be paid in full between 125 and 180 days from the invoice date, which remains
unpaid for more than 60 days from the original due date; or the Obligor of which
is in a bankruptcy or similar proceeding, or which, consistent with the Seller
Credit and Collection Procedures, would be written off as uncollectible;
DELINQUENT RECEIVABLES means a Receivable which is not a Defaulted Receivable,
which remains unpaid for more than 60 days but equal to or less than 90 days
from the original due date; or, in respect of a Receivable that is required to
be paid in full between 125 and 180 days from the invoice date, which remains
unpaid for more than 30 days but equal to or less than 60 days from the original
due date; or which would be classified as delinquent pursuant to the Seller
Credit and Collection Procedures;
DEPOSIT ACCOUNT BANK means with respect to each Seller each bank identified as
such in the second column of Schedule 8 acting through its branch set out in the
third column of Schedule 8 and with respect to the French Receivables Deposit
Accounts the banks at which such accounts are held as specified in the FCC
Documents and with respect to the
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Master Purchaser Portuguese Deposit Accounts the bank at which such Master
Purchaser Portuguese Deposit Accounts are maintained;
DEPOSIT ACCOUNTS means the Non-French Receivables Deposit Accounts and the
French Receivables Deposit Accounts;
DESIGNATED PERSON means each of Bruno Weber, Neil Mitchell, Sabine Dumanois and
Jose Pradas or any other officer of the Parent or any Servicer or any Seller or
any of its Affiliates notified in writing to the Master Purchaser and the
Collateral Monitoring Agent;
DETERMINATION DATE means a Monthly Determination Date or a Semi-Monthly
Determination Date, as the case may be;
DETERMINATION PERIOD means a Monthly Determination Period or a Semi-Monthly
Determination Period, as the case may be;
DILUTED RECEIVABLES means the portion of any Receivable which is either (a)
reduced or cancelled for any reason, or (b) subject to any specific offset,
recoupment claim, counterclaim or defense;
DILUTION RATIO means in respect of a Monthly Determination Period, the fraction
(expressed as a percentage) calculated by dividing (i) the USD Equivalent of the
aggregate of all Dilutions arising during such Monthly Determination Period by
(ii) the USD Equivalent of the aggregate invoiced amount of all Receivables
which arose during such Monthly Determination Period;
DILUTIONS means together all Unapplied Credit Notes and all other credits notes,
refunds, discounts, allowances, set-offs or reverse invoices permitted or issued
by the Seller against any Purchased Receivable;
DISCOUNT means, on the relevant Payment Date and in respect of a Purchased
Receivable, the amount calculated by multiplying the Outstanding Balance of that
Purchased Receivable by the Discount Percentage calculated as at the immediately
preceding Monthly Determination Date;
DISCOUNT COLLECTIONS means, in respect of a Determination Period and a
particular Agreed Currency, an amount equal to the amount by which Collections
received during such Determination Period in respect of Purchased Receivables
denominated in that Agreed Currency exceeds the aggregate Purchase Price paid by
the Master Purchaser for such Purchased Receivables;
DISCOUNT PERCENTAGE means a percentage calculated as at each Monthly
Determination Date equal to:
(A + B + C + D) x 90
- --------------------
360
where:
A = the Weighted Average Floating Rate as at such Monthly Determination
Date;
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B = 4.00 per cent.;
C = the Senior Expenses Percentage as at such Monthly Determination Date;
D = the Servicer Fee Percentage;
DUE DATE means, in respect of any Receivable, the date on which such Receivable
will be expressed to be payable when invoiced in accordance with the Seller
Credit and Collection Procedures;
ELIGIBLE COUNTRY means Germany, France, Spain, the United Kingdom, Portugal,
Belgium, the Netherlands or such other countries as may from time to time be
agreed in writing between the Parent and the Collateral Monitoring Agent;
ELIGIBLE INSTITUTION means a bank or financial institution duly authorised in
respect of its activities under the laws and regulations of a member state of
the European Union, the short term unsecured and unsubordinated debt obligations
of which are rated at least P-1 by Moody's and A-1 by S & P;
ELIGIBLE INVESTMENT means:
(a) any senior (unsubordinated) debt security, bank account, deposit
(including, for the avoidance of doubt, time deposit) or other debt
instrument issued by, or fully and unconditionally guaranteed on an
unsecured and unsubordinated basis by, or, if a bank account deposit, held
at or made with, an Eligible Institution (provided that in the case of any
such investment other than a bank account or deposit, the long-term rating
for unsecured, unsubordinated and unguaranteed debt obligations of the
relevant Eligible Institution is at least equal to Aa2 by Moody's and AA by
S & P);
(b) commercial paper or money market funds which are rated at least P-1 by
Moody's and A-1 by S & P;
(c) with respect to paragraphs (a) and (b) above, that have maturity dates on
or prior to the next Settlement Date; and
(d) any other investments agreed between the Parent and the Funding Agent;
ELIGIBLE OBLIGOR means an Obligor which satisfies the following characteristics:
(a) it is a corporate entity acting in its ordinary course of business only
subject to private laws and regulations;
(b) it is not a government or a government subdivision or government agency or
legal entity part of a public administration nor an individual;
(c) to the best of the applicable Seller's knowledge, it is not Insolvent or
subject to any Insolvency Proceedings in its jurisdiction of incorporation
and its holding company is not subject to Chapter 11 proceedings in the
United States of America;
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(d) it is not a debtor of any other Receivables (other than prior to the French
Programme Commencement Date only, the French Receivables) which persist at
the time of sale and have been sold, assigned, transferred or subrogated in
any way by the applicable Seller under any factoring transactions;
(e) it is not subject to any immunity of jurisdiction and/or execution and it
or its assets are not subject to any limitation or restriction on
enforcement;
(f) it is organized under the laws of, and resident in, an Eligible Country;
(g) it has no current/running accounts with any Seller; and
(h) it is not the Obligor of Defaulted Receivables, the aggregate USD
Equivalent of the Outstanding Balance of which is in excess of 50 per cent.
of the aggregate USD Equivalent of the Outstanding Balance of all
Receivables owed by such Obligor;
ELIGIBLE RECEIVABLES means the Receivables that satisfy each of the Eligibility
Criteria but excluding those Receivables which are otherwise required to be
treated as Ineligible Receivables pursuant to Clause 18(o) and/or Clause 18(p)
of the Master Receivables Purchase and Servicing Agreement or pursuant to the
provisions of the FCC Master French Receivables Transfer and Servicing
Agreement;
ELIGIBILITY CRITERIA means the criteria set out in Schedule 3 to the Master
Receivables Purchase and Servicing Agreement;
ENCUMBRANCE includes any mortgage, charge, pledge, lien, hypothecation or other
encumbrance or other security interest of any kind securing any obligation of
any person or any other type of agreement, trust or arrangement (including,
without limitation, title transfer and retention arrangements) or analogous
right having a similar effect;
ENFORCEMENT EVENT means the occurrence of any of the events set out in Condition
6.1 of the Notes;
ENGLISH RESTRICTED RECEIVABLE means a Receivable originated by the English
Seller which arises on a Contract which contains a limitation on assignment such
that the Receivable may not be assigned without the debtor having given consent
or received notice, but which contractual restriction does not impair the
ability of the English Seller to declare a trust over such Receivable;
ENGLISH RESTRICTED RECEIVABLES TRUST means the trust over the English Restricted
Receivables constituted by the English Seller pursuant to the declaration of
trust at Clause 2.2(c) of the Master Receivables Purchase and Servicing
Agreement;
ENGLISH RESTRICTED RECEIVABLES TRUST PROPERTY means the trust property that is
the subject of the English Restricted Receivables Trust;
ENGLISH RESTRICTED RECEIVABLES TRUSTEE means the English Seller in its capacity
as trustee of the English Restricted Receivables Trust;
ENGLISH SELLER means Visteon UK Limited in its capacity as Seller under the
Master Receivables Purchase and Servicing Agreement;
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ENGLISH SUB-SERVICER means Visteon UK Limited in its capacity as a Sub-Servicer
appointed under the Master Receivables Purchase and Servicing Agreement
ENGLISH SUB-SERVICER COLLECTION ACCOUNTS means the Non-French Receivables
Deposit Accounts in the name of the English Seller;
ESTIMATED MASTER PURCHASER SENIOR EXPENSES means, as at any Monthly
Determination Date, the aggregate of the USD Equivalent of the amounts which are
expected to become due and payable in accordance with paragraphs (a) to (c) of
each of the Pre-Enforcement Priorities of Payment (other than to the extent such
amounts relate to interest payable in respect of the Notes) on any Settlement
Dates falling during the Monthly Determination Period commencing on such Monthly
Determination Date (other than the first Settlement Date immediately following
such Monthly Determination Date) or on the first Settlement Date following the
end of such Monthly Determination Period;
EUR EQUIVALENT or EURO EQUIVALENT means on the day on which a calculation falls
to be made (i) in relation to an amount in EUR, that amount, (ii) in relation to
an amount in USD, the amount obtained by applying the applicable EUR Spot Rate
as at such date to such amount of USD and (iii) in relation to an amount in GBP,
the amount obtained by applying the applicable EUR Spot Rate as at such date to
such amount of GBP;
EUR FURTHER SUBORDINATED ADVANCE has the meaning given to it in Clause 5.6 of
the Subordinated VLN Facility Agreement;
EUR NOTES means the EUR denominated variable loan notes issued by the Issuer and
subscribed for by the Lenders under the Variable Funding Agreement, issued in
registered form substantially in the form set out in Schedule 1 to the Variable
Funding Agreement with the Conditions set out in Schedule 2 of the Variable
Funding Agreement, each such note being a EUR NOTE;
EUR POST-ENFORCEMENT PRIORITY OF PAYMENTS means the order of priority of
payments set out in Clause 8.2 of the Master Purchaser Deed of Charge and
reference to a particular item of the EUR Post-Enforcement Priority of Payments
is to the corresponding paragraph of Clause 8.2 of the Master Purchaser Deed of
Charge;
EUR PRE-ENFORCEMENT PRIORITY OF PAYMENTS means the order of priority of payments
set out in Clause 7.3 of the Master Purchaser Deed of Charge and reference to a
particular item of the EUR Pre-Enforcement Priority of Payments is to the
corresponding paragraph of Clause 7.3 of the Master Purchaser Deed of Charge;
EUR PURCHASE PRICE means the Purchase Price payable in EUR in respect of EUR
Receivables;
EUR RECEIVABLE means a Receivable that is denominated and payable in EUR;
EUR SPOT RATE means (i) in respect of an amount in USD on any date, the spot
rate of exchange quoted by Citibank for the purchase in the London Foreign
Exchange Market of EUR with USD at or about 9.00 a.m. (London time) on such date
and (ii) in respect of an amount in GBP on any date, the spot rate of exchange
quoted by Citibank for the purchase in the London Foreign Exchange Market of EUR
with GBP at or about 9.00 a.m. (London time) on such date;
Page 10
EUR SUBORDINATED VLN the EUR denominated subordinated variable loan note issued
by the Master Purchaser and subscribed for by the Subordinated VLN Facility
Provider under the Subordinated VLN Facility Agreement, issued in registered
form substantially in the form set out in Schedule 1 to the Subordinated VLN
Facility Agreement with the Subordinated VLN Conditions set out in Schedule 2 of
the Subordinated VLN Facility Agreement;
EUR SUBORDINATED VLN REQUIRED AMOUNT means as at the Funding Date and as at any
Determination Date, an amount equal to the sum of:
(a) the aggregate Purchase Price of all Purchased EUR Receivables (other than
the French Receivables) which are outstanding on such date (or in relation
to the calculation made in respect of the Funding Date which are to be
purchased by the Master Purchaser on the Funding Date); and
(b) the principal amount outstanding of any FCC Units denominated in EUR then
held by the Master Purchaser,
less the Principal Amount Outstanding of the EUR Notes as at such date (or in
relation to the calculation made in respect of the Funding Date which are to be
issued by the Master Purchaser on the Funding Date) provided that prior to the
Variable Funding Facility Termination Date, the EUR Subordinated VLN Required
Amount shall not be less than EUR 1,000;
EURIBOR means:
(a) the applicable Screen Rate; or
(b) (if such Screen Rate is not available for the relevant period in relation
to which such interest rate is being determined) the rate (rounded upwards
to four decimal places) the rate offered by the Funding Agent to leading
banks in the European interbank market,
at or about 11.00 a.m. on the date upon which the determination of the relevant
rate is to be made for the offering of deposits in EUR for a period comparable
to the period in relation to which such interest rate is being determined;
EURO EQUIVALENT means, as of any date, the amount obtained by applying the rate
for converting the relevant currency into Euro at the spot rate of exchange for
that currency as reasonable determined and advised by the Funding Agent;
EUROPEAN PROGRAMME means the receivables securitisation programme relating to
Receivables of the Sellers effected pursuant to the Transactions Documents;
EUROPEAN PROGRAMME LIMIT means USD 350 million or, any other amount which is
agreed in writing between the Parent and the Funding Agent;
EXCESS CONCENTRATION means that part of the Outstanding Balance of any Purchased
Receivable which would result in a breach of the Concentration Limits applicable
to the relevant Obligor;
Page 11
EXCHANGE RATE ADJUSTMENT AMOUNT means, as at any Determination Date, an amount
expressed in USD equal to the product of A and B, where:
A is equal to the NRPB Before Excess Concentrations and Exchange Rate
Protection (as determined on such date) multiplied by (1 - the Advance Rate
Percentage); and
B is equal to the Exchange Rate Protection Factor Percentage (as determined
on such date);
EXCHANGE RATE PROTECTION FACTOR PERCENTAGE means the higher of:
(a) the percentage determined from time to time by the Collateral Monitoring
Agent in accordance with the Collateral Monitoring Agent's internal
policies in respect of exchange rate exposure, to protect the Master
Purchaser against adverse fluctuations in the exchange rate between EUR and
USD;
(b) the percentage determined from time to time by the Collateral Monitoring
Agent in accordance with the Funding Agent's internal policies in respect
of exchange rate exposure, to protect the Master Purchaser against adverse
fluctuations in the exchange rate between GBP and USD; and
(c) the percentage determined from time to time by the Collateral Monitoring
Agent in accordance with the Collateral Monitoring Agent's internal
policies in respect of exchange rate exposure, to protect the Master
Purchaser against adverse fluctuations in the exchange rate between EUR and
GBP,
which as at the Funding Date shall be 9.5 per cent.;
EXCLUDED RECEIVABLE means any Receivable which:
(a) is governed by Belgian law, Netherlands law, Swedish law, Portuguese law or
Spanish law where the Contract under which such Receivable arises contains
a requirement to obtain the consent of the relevant Obligor for, or a
requirement to notify the relevant Obligor of any sale, assignment or other
transfer of such Receivable and where such consent has not been obtained or
such notice has not been given; or
(b) the Collateral Monitoring Agent has identified to the Sellers shall be an
Excluded Receivable;
(c) is owed to the Portuguese Seller by the Ford Motor Company or an Affiliate
of the Ford Motor Company;
(d) the Obligor in respect of which is Volkswagen AG or an Affiliate of
Volkswagen AG (other than any Receivables owed by Volkswagen AG or any of
its Affiliates which arise after the date on which the Parent has given
written notice to each of the Collateral Monitoring Agent, the Security
Trustee and the Master Purchaser to the effect that such Receivables shall
cease to be Excluded Receivables);
(e) is owned by an Obligor in respect of which a Seller has given notice in
writing to the Collateral Monitoring Agent, the Security Trustee and the
Master Purchaser to
Page 12
the effect that no Receivables owed by such Obligor are to be sold to the
Master Purchaser or, as the case may be, FCC Visteon (an EXCLUSION NOTICE)
where such Receivable arises after the date of delivery of such Exclusion
Notice PROVIDED THAT (A) the aggregate Average Receivables Balance as at
the date of such Exclusion Notice when aggregated with the average
Receivables Balance of all other Obligors in respect of which an Exclusion
Notice has been given in accordance with this paragraph (e) and in respect
of which the proviso below does not apply (calculated in each case as at
the date the relevant Exclusion Notice was given in relation to each such
Obligor) does not exceed 5 per cent. of the aggregate USD Equivalent of the
Outstanding Balances of all Purchased Receivables as at the immediately
preceding Determination Date; and (B) a certificate of the Parent, signed
by a director or other officer stating that the Exclusion Notice given to
excludes Receivables owed by that Obligor is being given in good faith for
valid business reasons to preserve the Visteon Group's trading relationship
with that Obligor,
provided that where the Parent has given an Exclusion Notice in respect of
Receivables owed by a particular Obligor in accordance with paragraph (e) above
and the Parent has subsequently given written notice to each of the Collateral
Monitoring Agent, the Security Trustee and the Master Purchaser to the effect
that Receivables owed by that Obligor shall no longer be considered to be
Excluded Receivables, any Receivables owed by that Obligor which arise after the
date of such notice shall not be Excluded Receivables (subject to any subsequent
delivery of a further Exclusion Notice in respect of such Obligor);
EXEMPT TRANSACTION means a transaction whereby any interest or other
distribution is paid out of the assets of the Master Purchaser under any
securities where (i) the consideration given by the Master Purchaser for the use
of the principal secured is to any extent dependent on the results of the Master
Purchaser's business or any part of the Master Purchaser's business; or (ii) the
consideration so given represents more than a reasonable commercial return for
the use of that principal, unless such interest or other distribution has been
paid as part of a scheme or arrangement the main purpose or one of the main
purposes of which is to obtain a tax relief or the reduction of a tax liability
by a person within the charge to Irish corporation tax (referred to as the
BENEFICIARY) and the beneficiary is the person from whom qualifying assets were
acquired by the Master Purchaser, or with whom the Master Purchaser has entered
into an arrangement as a result of which the Master Purchaser holds or manages
qualifying assets, or with whom the Master Purchaser has entered into a legally
enforceable arrangement which arrangement itself constitutes a qualifying asset,
and the Master Purchaser is, at the time of the acquisition of the qualifying
assets, in possession, or aware, of information which can reasonably be used by
it to identify the beneficiary;
FCC ACCOUNT CONTROL AGREEMENTS means the French Account Control Agreements, the
UK FCC Account Control Deed, the German FCC Account Control Agreement, any
Portuguese FCC Account Control Agreement and the Spanish FCC Deeds of Pledge;
FCC CUSTODIAN means the person appointed to act as the custodian of FCC Visteon;
FCC DOCUMENTS means the documents by which FCC Visteon will be established and
operate, including but not limited to the FCC Regulations, the FCC Master French
Receivables Transfer and Servicing Agreement, the FCC Units Subscription
Agreement,
Page 13
the FCC Master Definitions Agreement, the FCC Account Control Agreements
together with each of the other documents required to be entered into pursuant
to any such documents;
FCC MANAGEMENT COMPANY means the person appointed to act as the management
company of FCC Visteon;
FCC MASTER FRENCH RECEIVABLES TRANSFER AND SERVICING AGREEMENT means the master
receivables transfer and servicing agreement to be executed after the date
hereof between, amongst others, the Sellers, the Servicers, the FCC Management
Company and the FCC Custodian in respect of the sale of French Receivables by
the Sellers to FCC Visteon and to the servicing of the French Receivables
transferred to FCC Visteon;
FCC MASTER DEFINITIONS AGREEMENT means the agreement to be entered into after
the Closing Date between inter alios the FCC Management Company and the FCC
Custodian, the Master Purchaser, the Sellers and the Servicers, pursuant to
which the parties thereto shall agree on the definitions and the meanings of
certain terms and expressions applicable to the FCC Documents;
FCC UNITS means the floating rate units to be issued by FCC Visteon according to
the FCC Regulations, in accordance with Articles L. 214-43 to L. 214-49 of the
French Code monetaire et financier, the proceeds of which will be used by the
FCC Management Company to purchase French Receivables from the Sellers;
FCC UNITS PLEDGE AGREEMENT has the meaning given to it in Clause 3.9 of the
Master Purchaser Deed of Charge;
FCC UNITS SUBSCRIPTION AGREEMENT means any agreement entered into from time to
time by the Master Purchaser in respect of the subscription by the Master
Purchaser of FCC Units;
FCC REGULATIONS means the regulations to be executed after the date hereof
between the FCC Management Company and the FCC Custodian, under which the FCC
Management Company and the FCC Custodian shall agree to create FCC Visteon and
which shall relate to the creation and operation of FCC Visteon;
FCC VISTEON means the fonds commun de creances entitled FCC Visteon Financial
Center or such other name as may be notified by the Parent to the Collateral
Monitoring Agent, the Security Trustee and the Master Purchaser to be
established after the Closing Date for the purpose of purchasing, from the
Sellers, the French Receivables;
FEE LETTERS means the Citigroup Fee Letter and the ST Fee Letter;
FEES means the aggregate of any fees payable to the Lenders, the Noteholders,
the Security Trustee, the Funding Agent, the MP Cash Manager, the Master
Purchaser Transaction Account Bank or the Collateral Monitoring Agent pursuant
to any Transaction Document;
FINAL DISCHARGE DATE means the date upon which the Master Purchaser has
discharged all its obligations under the Transaction Documents and after which
no Lender or Noteholder has any commitment to provide funding pursuant to the
Variable Funding Agreement or any Note;
Page 14
FINAL MATURITY DATE means, in relation to each Note, the date determined and
specified by the Issuer in accordance with the provisions of the Variable
Funding Agreement to be the final maturity date of such Note;
FINANCE PARTIES means the Lenders, the Noteholders and the Funding Agent;
FRAMEWORK DEED means this document;
FRENCH ACCOUNT CONTROL AGREEMENT means, in respect of each French Seller, the
agreement for the compte d'affectation specialise in respect of the Deposit
Accounts in the name of that French Seller to be entered into by that French
Seller after the Closing Date in connection with the establishment of FCC
Visteon and the issue by it of FCC Units;
FRENCH PROGRAMME COMMENCEMENT DATE means the first date upon which French
Receivables are sold to FCC Visteon;
FRENCH RECEIVABLES means Receivables originated by a French Seller together with
Receivables originated by any other Seller arising from a Contract governed by
French law;
FRENCH RECEIVABLES DEPOSIT ACCOUNTS means each of the accounts in the name of a
Seller with Deposit Account Banks into which are collected amounts paid by
Obligors in respect of Purchased French Receivables as may be identified as such
in the FCC Documents or such other account(s) of any Seller as may be utilised
for the collection of such amounts in accordance with the FCC Documents;
FUNDING AGENT means Citibank International plc or such other person approved as
Funding Agent in accordance with Clause 19 of the Variable Funding Agreement;
FUNDING AGENT ACCOUNTS means (i) the USD denominated account of the Funding
Agent held with Citibank, N.A., New York (Swift Code: CITIUS33) with account
number 10963054, (ii) the EUR denominated account of the Funding Agent held with
Citibank, N.A., London Branch (Swift: CITIGB2L) with account number 944823 and
(iii) the GBP denominated account of the Funding Agent held with Citibank, N.A.,
London Branch (Swift: CITIGB2L, Sort Code: 18-50-04) with account number 558397,
or in each case such other replacement account or accounts as the Funding Agent
may from time to time notify in writing to the Master Purchaser, the MP Cash
Manager, the Lenders and the Noteholders;
FUNDING DATE means 21 August 2006 or such other date as may be agreed by the
Parent and the Funding Agent;
FUNDING REQUEST DATE means the date on which a Further Funding Request is made
in accordance with the Variable Funding Agreement provided that if such date is
not a Business Day the Funding Request Date shall be the next day that is a
Business Day;
FURTHER FUNDING REQUEST means a request, substantially in the form set out in
Part B of Schedule 7 to the Variable Funding Agreement, made by the Issuer (or
the Master Servicer on its behalf) to the Funding Agent (copied to the
Collateral Monitoring Agent) pursuant to Clause 5.4 of the Variable Funding
Agreement, in relation to an increase in the par value of each of the Notes
denominated in a particular Agreed Currency;
Page 15
FURTHER SECURITY has the meaning given to it in the Master Purchaser Deed of
Charge;
FURTHER SUBORDINATED ADVANCE has the meaning given to it in Clause 5.7 of the
Subordinated VLN Facility Agreement;
FURTHER SUBSCRIPTION PRICE means, in relation to a Noteholder, the amount in a
particular Agreed Currency payable by that Noteholder to the Issuer on any date
in relation to a Note denominated in such Agreed Currency held by that
Noteholder pursuant to the Variable Funding Agreement calculated as being an
amount equal to that Noteholder's Commitment Proportion of the aggregate amount
of all funding requested to be made in such Agreed Currency on that date by the
Lenders pursuant to the Variable Funding Agreement, as set out in the applicable
Further Funding Request;
GBP EQUIVALENT or STERLING EQUIVALENT means on the day on which a calculation
falls to be made (i) in relation to an amount in GBP, that amount, (ii) in
relation to an amount in EUR, the amount obtained by applying the applicable GBP
Spot Rate as at such date to such amount of EUR and (iii) in relation to an
amount in USD, the amount obtained by applying the applicable GBP Spot Rate as
at such date to such amount of USD;
GBP FURTHER SUBORDINATED ADVANCE has the meaning given to it in Clause 5.7 of
the Subordinated VLN Facility Agreement;
GBP LIBOR means:
(a) the applicable Screen Rate; or
(b) (if such Screen Rate is not available for the relevant period in relation
to which such interest rate is being determined) the rate (rounded upwards
to four decimal places) as offered by the Funding Agent to leading banks in
the London interbank market,
at or about 11.00 a.m. on the date upon which the determination of the relevant
rate is to be made for the offering of deposits in GBP for a period comparable
to the period in relation to which such interest rate is being determined;
GBP NOTES means the GBP denominated variable loan notes issued by the Issuer and
subscribed for by the Lenders under the Variable Funding Agreement, issued in
registered form substantially in the form set out in Schedule 1 to the Variable
Funding Agreement with the Conditions set out in Schedule 2 of the Variable
Funding Agreement, each such note being a GBP NOTE;
GBP POST-ENFORCEMENT PRIORITY OF PAYMENTS means the order of priority of
payments set out in Clause 8.4 of the Master Purchaser Deed of Charge and
reference to a particular item of the GBP Post-Enforcement Priority of Payments
is to the corresponding paragraph of Clause 8.4 of the Master Purchaser Deed of
Charge;
GBP PRE-ENFORCEMENT PRIORITY OF PAYMENTS means the order of priority of payments
set out in Clause 7.5 of the Master Purchaser Deed of Charge and reference to a
particular item of the GBP Pre-Enforcement Priority of Payments is to the
corresponding paragraph of Clause 7.5 of the Master Purchaser Deed of Charge;
Page 16
GBP PURCHASE PRICE means the Purchase Price payable in GBP in respect of GBP
Receivables;
GBP SPOT RATE means (i) in respect of an amount in USD on any date, the spot
rate of exchange quoted by Citibank for the purchase in the London Foreign
Exchange Market of GBP with USD at or about 9.00 a.m. (London time) on such date
and (ii) in respect of an amount in EUR on any date, the spot rate of exchange
quoted by Citibank for the purchase in the London Foreign Exchange Market of GBP
with EUR at or about 9.00 a.m. (London time) on such date;
GBP RECEIVABLE means a Receivable that is denominated and payable in GBP;
GBP SUBORDINATED VLN the GBP denominated subordinated variable loan note issued
by the Master Purchaser and subscribed for by the Subordinated VLN Facility
Provider under the Subordinated VLN Facility Agreement, issued in registered
form substantially in the form set out in Schedule 1 to the Subordinated VLN
Facility Agreement with the Subordinated VLN Conditions set out in Schedule 2 of
the Subordinated VLN Facility Agreement;
GBP SUBORDINATED VLN REQUIRED AMOUNT means as at the Funding Date and as at any
Determination Date, an amount equal to the sum of:
(a) the aggregate Purchase Price of all Purchased GBP Receivables (other than
the French Receivables) which are outstanding on such date (or in relation
to the calculation made in respect of the Funding Date which are to be
purchased by the Master Purchaser on the Funding Date); and
(b) the principal amount outstanding of any FCC Units denominated in GBP then
held by the Master Purchaser,
less the Principal Amount Outstanding of the GBP Notes as at such date (or in
relation to the calculation made in respect of the Funding Date which are to be
issued by the Master Purchaser on the Funding Date) provided that prior to the
Variable Funding Facility Termination Date, the GBP Subordinated VLN Required
Amount shall not be less than GBP 1,000;
GERMAN ACCOUNT CONTROL AGREEMENT means the account control agreement dated on or
about the Closing Date made between the German Seller (as pledgor), the Master
Purchaser (as pledgee), and the Security Trustee (as pledgee) in respect of the
Non-French Receivables Deposit Accounts in the name of the German Seller;
GERMAN FCC ACCOUNT CONTROL AGREEMENT means the account control agreement entered
into in accordance with the FCC Documents by the German Seller (as Pledgor) in
favour of FCC Visteon in respect of the French Receivables Deposit Accounts in
the name of the German Seller;
GERMAN RECEIVABLE means a Purchased Receivable originated by the German Seller;
GERMAN RECEIVABLES DEFERRED PURCHASE PRICE has the meaning given to in Clause
3.10 of the Master Receivables Purchase and Servicing Agreement;
GERMAN SELLER means Visteon Deutschland GmbH;
Page 17
GOVERNMENTAL AUTHORITY means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization;
GRID means, in relation to a Note, the grid contained in the Schedule to such
Note showing increases and decreases in the Principal Amount Outstanding and
maintained by the Issuer;
INDEBTEDNESS has the meaning given to it as at the Closing Date in the US ABL
Credit Agreement, it being agreed that (i) any amendment made after the Closing
Date to such definition in the US ABL Credit Agreement shall not have the effect
of amending this definition unless such amendment is made in accordance with
Clause 13 of this Deed and (ii) that any termination of or waiver under the US
ABL Credit Agreement shall not affect this definition;
INELIGIBLE RECEIVABLE means the whole of the Outstanding Balance of a Receivable
which does not comply with the Eligibility Criteria on the date on which they
are transferred or which is otherwise required to be treated as an Ineligible
Receivable pursuant to Clause 18(o) and/or Clause 18(p) of the Master
Receivables Purchase and Servicing Agreement or pursuant to the provisions of
the FCC Master French Receivables Transfer and Servicing Agreement;
INITIAL FUNDING REQUEST means a request, substantially in the form set out in
Part A of Schedule 7 to the Variable Funding Agreement, made by the Issuer to
the Funding Agent pursuant to Clause 5 of the Variable Funding Agreement, in
relation to the issue by the Issuer of Notes denominated in a particular Agreed
Currency and the subscription by a Lender of such Notes;
INITIAL SUB-SERVICER means each of Visteon UK Limited, Visteon Deutschland GmbH,
Visteon Systemes Interieurs S.A.S., Visteon Ardennes Industries S.A.S., Visteon
Sistemas Interiores Espana S.L., Cadiz Electronica S.A. and Visteon Portuguesa
Limited, each in its capacity as a Sub-Servicer appointed pursuant to Clause 8
of the Master Receivables Purchase and Servicing Agreement;
INITIAL SUBSCRIPTION PRICE means, in relation to a Lender, the amount in a
particular Agreed Currency payable by that Lender to the Issuer for the
subscription of a Note denominated in such Agreed Currency calculated as being
an amount equal to the greater of (i) that Lender's Commitment Proportion of the
aggregate amount of all funding requested to be made in such Agreed Currency on
the Funding Date by the Lenders pursuant to the Variable Funding Agreement and
(ii) USD 1,000 (in relation to the subscription of a Note denominated in USD),
EUR 1,000 (in relation to the subscription of a Note denominated in EUR) and GBP
1,000 (in relation to the subscription of a Note denominated in GBP), as set out
in the applicable Initial Funding Request;
INSOLVENCY means, with respect to any of the Parent, any Seller, any Servicer or
any Subordinated VLN Facility Provider, the occurrence of any of the following:
(a) it is, or is deemed for the purposes of any law to be, unable to pay its
debts as they fall due or is otherwise insolvent under the laws of any
applicable jurisdiction;
Page 18
(b) it admits its inability to pay its debts as they fall due;
(c) the value of its assets is less than its liabilities (taking into account
contingent and prospective liabilities);
(d) it suspends making payments on any of its debts or announces an intention
to do so;
(e) by reason of actual or anticipated financial difficulties, it commences
negotiations with one or more of its creditors with a view to rescheduling
any of its indebtedness; or
(f) a moratorium is or has been declared in respect of any of its indebtedness;
INSOLVENCY PROCEEDINGS means, in respect of the Parent, any Seller, any Servicer
or any Subordinated VLN Facility Provider, any corporate action, legal
proceeding or other procedure or step is taken in relation to or with a view to:
(a) the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration (whether out of court or otherwise) or
reorganisation (by way of voluntary arrangement, scheme of arrangement or
otherwise);
(b) a composition, assignment or arrangement with any creditor;
(c) the appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or
similar officer (in each case, whether out of court or otherwise) in
respect of itself or any of its assets;
(d) the enforcement of any Encumbrances over any of its assets with an
aggregate value of not less than USD 10,000,000;
(e) a meeting of its directors or its members being convened for the purpose of
considering any resolution for, or to petition for, or apply for or to file
documents with a court for its winding-up, administration (whether out of
court or any registrar or otherwise) or dissolution and any such resolution
is passed;
(f) any person presenting a petition or an application for its winding-up,
administration (whether out of court or otherwise) or dissolution where
such petition or application is not withdrawn or dismissed within 60 days;
(g) its directors or other officers requesting the appointment of or giving
notice of their intention to appoint or take any step with a view to
appointing a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator
(whether out of court or otherwise) or similar officer; or
(h) or any analogous procedure or step is taken in any jurisdiction;
INSTITUTIONAL INVESTOR shall mean a person of a kind specified in article 9 of
the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
Page 19
INTEREST PAYMENT DATE means, in respect of an Interest Period, the Monthly
Settlement Date on which that Interest Period ends;
INTEREST PERIOD means the period from (and including) one Monthly Settlement
Date to (but excluding) the immediately following Monthly Settlement Date, with
the first Interest Period commencing on (and including) the Funding Date and
ending on (but excluding) the first Monthly Settlement Date;
INVOICE means the account for payment specifying the goods supplied by a Seller,
the amount due to be paid in respect thereof by the Obligor including any VAT
chargeable in respect of those goods and the due date for such payment;
IRISH QUALIFYING LENDER means a person who is or would be beneficially entitled
to the payments it receives under the Notes and the other Transaction Documents
to which it is, or would become, party and is:
(a) the holder of a licence for the time being in force granted under section 9
of the Irish Central Bank Act 1971 or an authorised credit institution
under the terms of EU Council Directive 2000/12/EC of 20 March 2000 which
has duly established a branch in Ireland or has made all necessary
notifications to its home state competent authorities required thereunder
in relation to its intention to carry on banking business in Ireland
provided it is carrying on a bona fide banking business in Ireland with
which the payment is connected; or
(b) a body corporate which is resident in Ireland for the purposes of Irish
income or corporate income tax or which carries on a trade in Ireland
through a branch or agency:
(i) which advances money under the Note in the ordinary course of a trade
which includes the lending of money; and
(ii) in whose hands any interest payable in respect of the Note is taken
into account in computing the trading income of the company; and
(iii) which has complied with all of the provisions of Section 246(5) of
the Taxes Consolidation Act, 1997 as amended, of Ireland including
making the appropriate notifications thereunder to the Revenue
Commissioners of Ireland and to the Issuer and the relevant Finance
Party has not ceased to be a company to which Section 246(5) applies,
or
(c) is a qualifying company within the meaning of Section 110 of the Taxes
Consolidation Act 1997, as amended, of Ireland;
ISSUER means Visteon Financial Centre p.l.c. in its capacity as issuer of the
Notes under the Variable Funding Agreement;
JOINT LEAD ARRANGERS means Citigroup Global Markets Inc. and J.P.Morgan
Securities Inc.;
LENDER means each of the parties identified as a Lender in Schedule 6 and each
party that accedes to both the Variable Funding Agreement and this Deed as a
Lender or a Noteholder;
Page 20
LENDER RESERVED MATTERS means any matter that would give rise to:
(a) any increase in the Maximum Commitment Amount or Commitment Proportion of
any Lender;
(b) any reduction or forgiveness of the principal amount of any Note or the
reduction of the rate of interest applicable thereto or reduce or forgive
any interest or fees payable to (or for the account of) a Lender (in its
capacity as a Lender or a Noteholder) under the Transaction Documents
(provided however that waiver of any default or Master Purchaser Event of
Default shall not be deemed to be a reduction in the rate of interest or
any fee);
(c) the postponement of any scheduled date of payment of the principal amount
of any Note, or any date for the payment of any interest, fees or other
obligations payable to (or for the account of) a Lender (in its capacity as
a Lender or a Noteholder);
(d) an amendment to any Master Purchaser Priority of Payment or any other
provision of any Transaction Document that would alter the priority or
ranking of any payments due to any Lender or Noteholder;
(e) an amendment to the Eligibility Criteria;
(f) an amendment to this definition or to the provisions of Clause 12 or Clause
10 of the Master Purchaser Deed or Charge or any other provision of any
Transaction Document specifying the number or percentage of Lenders
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder;
(g) the release of the Master Purchaser from its obligations under the Variable
Funding Agreement or the Notes (except as otherwise permitted in any of the
Transaction Documents); or
(h) the release of substantially all of the Master Purchaser Secured Property
from the Encumbrances created under the Master Purchaser Security Documents
other than as permitted or expressly provided for in any of the Transaction
Documents;
LP(MP) ACT has the meaning given to it in the Master Purchaser Deed of Charge;
MAJORITY LENDERS means Lenders the sum of whose Commitment Proportions is equal
to or greater than 51 per cent.;
MANAGER means any insolvency official appointed by the court under any
applicable law;
MANUAL INVOICES means Invoices issued in respect of the supply of tooling
products, prototypes and/or engineering charges;
MASTER PURCHASER means Visteon Financial Centre p.l.c. being a company
incorporated in Ireland;
MASTER PURCHASER ACCOUNTS means each of the Master Purchaser Transaction
Accounts and the Master Purchaser Portuguese Deposit Accounts;
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MASTER PURCHASER AVAILABLE FUNDS means the Master Purchaser USD Available Funds,
the Master Purchaser EUR Available Funds and the Master Purchaser GBP Available
Funds;
MASTER PURCHASER DEED OF CHARGE means the deed of charge dated on or about the
date of this Deed between, inter alios, the Master Purchaser and the Security
Trustee pursuant to which the Master Purchaser grants security over its assets
to the Security Trustee for the benefit of the Master Purchaser Secured
Creditors;
MASTER PURCHASER DEED OF CHARGE ACCESSION DEED means an accession deed
substantially in the form set out in Schedule 2 to the Master Purchaser Deed of
Charge;
MASTER PURCHASER EUR AVAILABLE FUNDS means with respect to any Settlement Date,
the aggregate of (i) all moneys standing to the credit of the Master Purchaser
Transaction Account denominated in EUR as at the opening of business on that
Settlement Date, (ii) the principal amount of all Eligible Investments
denominated in EUR maturing on or prior to that Settlement Date together with
interest and other income earned in respect thereof, (iii) any amounts of
Further Subscription Price to be paid to the Master Purchaser on such Settlement
Date under the Variable Funding Agreement in respect of any EUR Note and (iv)
any EUR Further Advances to be paid to the Master Purchaser on such Settlement
Date under the Subordinated VLN Facility Agreement and the EUR Subordinated VLN;
PROVIDED THAT Master Purchaser EUR Available Funds shall not include the
proceeds of any payment of Further Subscription Price to the Master Purchaser
under the Variable Funding Agreement in respect of any EUR Note and any
corresponding increase in the Principal Amount Outstanding of such Notes if the
full amounts of any advances required to be made to the Master Purchaser under
the Subordinated VLN Facility Agreement have not been credited to the Master
Purchaser Transaction Accounts as of 11:00 a.m. (London time) on that Settlement
Date;
MASTER PURCHASER EVENT OF DEFAULT means the occurrence of any of the events set
out in Condition 5.1 of the Notes;
MASTER PURCHASER FURTHER SECURITY AGREEMENT has the meaning given to it in
Clause 3.8 of the Master Purchaser Deed of Charge;
MASTER PURCHASER GBP AVAILABLE FUNDS means with respect to any Settlement Date,
the aggregate of (i) all moneys standing to the credit of the Master Purchaser
Transaction Account denominated in GBP as at the opening of business on that
Settlement Date, (ii) the principal amount of all Eligible Investments
denominated in GBP maturing on or prior to that Settlement Date together with
interest and other income earned in respect thereof, (iii) any amounts of
Further Subscription Price to be paid to the Master Purchaser on such Settlement
Date under the Variable Funding Agreement in respect of any GBP Note and (iv)
any GBP Further Advances to be paid to the Master Purchaser on such Settlement
Date under the Subordinated VLN Facility Agreement and the GBP Subordinated VLN;
PROVIDED THAT Master Purchaser GBP Available Funds shall not include the
proceeds of any payment of Further Subscription Price to the Master Purchaser
under the Variable Funding Agreement in respect of any GBP Note and any
corresponding increase in the Principal Amount Outstanding of such Notes if the
full amounts of any advances required to be made to the Master Purchaser under
the Subordinated VLN Facility Agreement have not been credited to the Master
Purchaser Transaction Accounts as of 11:00 a.m. (London time) on that Settlement
Date;
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MASTER PURCHASER GERMAN RECEIVABLES SECURITY ASSIGNMENT AGREEMENT means the
security assignment agreement governed by German law dated on or about the
Closing Date between the Master Purchaser and the Security Trustee relating to
the Purchased Receivables governed by German law;
MASTER PURCHASER PORTUGUESE DEPOSIT ACCOUNTS means any accounts opened by or
transferred to the Master Purchaser with the consent of the Collateral
Monitoring Agent and in accordance with Clause 18(o) of the Master Receivables
Purchase and Servicing Agreement into which Collections received in respect of
Purchased Receivables sold to the Master Purchaser by the Portuguese Seller are
to be paid in accordance with the Master Receivables Purchase and Servicing
Agreement;
MASTER PURCHASER POST-ENFORCEMENT PRIORITIES OF PAYMENTS means each of the USD
Post-Enforcement Priority of Payments, the EUR Post-Enforcement Priority of
Payment and the GBP Post-Enforcement Priority of Payments;
MASTER PURCHASER PRE-ENFORCEMENT PRIORITIES OF PAYMENTS means each of the USD
Pre-Enforcement Priority of Payments, the EUR Pre-Enforcement Priority of
Payment and the GBP Pre-Enforcement Priority of Payments;
MASTER PURCHASER PRIORITY OF PAYMENTS means the Master Purchaser Pre-Enforcement
Priority of Payments and the Master Purchaser Post-Enforcement Priority of
Payments;
MASTER PURCHASER RECEIVABLES POWER OF ATTORNEY has the meaning given to it in
Clause 2.4 of the Master Receivables Purchase and Servicing Agreement;
MASTER PURCHASER SECURED CREDITORS means the Noteholders, the Lenders, the
Subordinated VLN Provider, the Sellers, the Servicers, the Security Trustee, the
Funding Agent, the Collateral Monitoring Agent, the MP Cash Manager, the Master
Servicer, the Master Purchaser Transaction Account Bank and the Corporate
Administrator;
MASTER PURCHASER SECURED OBLIGATIONS means the aggregate of all moneys and other
liabilities for the time being due or owing by the Master Purchaser to the
Master Purchaser Secured Creditors under or pursuant to the Transaction
Documents;
MASTER PURCHASER SECURED PROPERTY means the whole of the right, title, benefit
and interest of the Master Purchaser in the property, assets and rights of the
Master Purchaser that are subject to the encumbrances granted by the Master
Purchaser pursuant to the Master Purchaser Security Documents;
MASTER PURCHASER SECURITY DOCUMENTS means the Master Purchaser Deed of Charge,
the Master Purchaser German Receivables Security Assignment Agreement and each
Master Purchaser Further Security Agreement and any other security document
entered into by the Master Purchaser pursuant to which the Master Purchaser
grants security to the Security Trustee (for itself and the other Master
Purchaser Secured Creditors) in respect of the Master Purchaser Secured
Obligations;
MASTER PURCHASER SECURITY ENFORCEMENT NOTICE means a notice given by the
Security Trustee to the Master Purchaser pursuant to Clause 8.1 of the Master
Purchaser Deed of Charge;
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MASTER PURCHASER'S SETTLEMENT DATE AMOUNTS means the aggregate amounts owing by
the Master Purchaser under the Master Purchaser Pre-Enforcement Priority of
Payments on any Settlement Date or, following a Master Purchaser Security
Enforcement Notice, under the Master Purchaser Post-Enforcement Priority of
Payments from time to time;
MASTER PURCHASER TRANSACTION ACCOUNT BANK means Citibank, N.A. London Branch or
such other bank appointed from time to time in replacement thereof pursuant to
and in accordance with the Transaction Documents;
MASTER PURCHASER TRANSACTION ACCOUNTS means:
(a) the EUR denominated account with account number 11648411;
(b) the USD denominated account with account number 11648446; and
(c) the GBP denominated account with account number 11648438,
each in the name of the Master Purchaser with the Master Purchaser Transaction
Account Bank or such other accounts in the name of the Master Purchaser with the
Master Purchaser Transaction Account Bank as the Master Purchaser may be
permitted to open by the Security Trustee and which are notified to the other
parties in accordance with this Deed;
MASTER PURCHASER USD AVAILABLE FUNDS means with respect to any Settlement Date,
the aggregate of (i) all moneys standing to the credit of the Master Purchaser
Transaction Account denominated in USD as at the opening of business on that
Settlement Date, (ii) the principal amount of all Eligible Investments
denominated in USD maturing on or prior to that Settlement Date together with
interest and other income earned in respect thereof, (iii) any amounts of
Further Subscription Price to be paid to the Master Purchaser on such Settlement
Date under the Variable Funding Agreement in respect of any USD Note and (iv)
any USD Further Advances to be paid to the Master Purchaser on such Settlement
Date under the Subordinated VLN Facility Agreement and the USD Subordinated VLN;
PROVIDED THAT Master Purchaser USD Available Funds shall not include the
proceeds of any payment of Further Subscription Price to the Master Purchaser
under the Variable Funding Agreement in respect of any USD Note and any
corresponding increase in the Principal Amount Outstanding of such Notes if the
full amounts of any advances required to be made to the Master Purchaser under
the Subordinated VLN Facility Agreement have not been credited to the Master
Purchaser Transaction Accounts as of 11:00 a.m. (New York time) on that
Settlement Date;
MASTER RECEIVABLES PURCHASE AND SERVICING AGREEMENT means the Master Receivables
Purchase and Servicing Agreement dated on or about the date of this Deed between
(inter alios) the Sellers, the Master Purchaser, the Security Trustee, the
Master Servicer and the Funding Agent;
MASTER SERVICER means the person appointed by the Master Purchaser under the
Master Receivables Purchase and Servicing Agreement to provide administration
and collection services in relation to the Purchased Receivables, being at the
Funding Date Visteon UK Limited;
MASTER SERVICER REPORT means a Master Servicer's Monthly Report or Master
Servicer's Semi-Monthly Settlement Report;
Page 24
MASTER SERVICER'S MONTHLY REPORT means the monthly report substantially in the
form attached as Part A of Schedule 6 to the Master Receivables Purchase and
Servicing Agreement and containing such additional information as the Master
Purchaser or the Funding Agent may reasonably request from time to time prepared
by the Master Servicer and delivered to the Master Purchaser, the MP Cash
Manager and the Collateral Monitoring Agent in accordance with Clause 14.1 of
the Master Receivables Purchase and Servicing Agreement;
MASTER SERVICER'S SEMI-MONTHLY SETTLEMENT REPORT means a report in substantially
the form attached as Part B of Schedule 6 to the Master Receivables Purchase and
Servicing Agreement and containing such additional information as the Master
Purchaser or the Funding Agent may reasonably request from time to time,
prepared by the Master Servicer and delivered to the Master Purchaser, the MP
Cash Manager and the Collateral Monitoring Agent in accordance with Clause 14.2
of the Master Receivables Purchase and Servicing Agreement;
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the collectability, enforceability or value of the Receivables or any
significant portion thereof;
(b) the ability of the Master Purchaser, a Seller, a Servicer, the Parent or
the Subordinated VLN Facility Provider to perform any of its respective
obligations under the Transaction Documents to which it is a party;
(c) the legality, validity or (subject to any qualifications or reservations
set out in the legal opinions listed in Part B of Schedule 3)
enforceability of the Transaction Documents (including, without limitation,
the validity, enforceability or priority of any of the Encumbrances granted
thereunder) or the rights of any Noteholder or Lender under the Transaction
Documents; or
(d) the business, assets, operations or financial condition of the Parent and
its Subsidiaries, taken as a whole;
MAXIMUM COMMITMENT AMOUNT means, in respect of any Lender and/or Noteholder
either (i) the amount set out against that Lender's or Noteholder's name in the
fourth column of Schedule 1 to the Variable Funding Agreement less any part of
that commitment amount transferred by that Lender or Noteholder to another
Noteholder in accordance with the provisions of the Variable Funding Agreement
and the Conditions, or (ii) as applicable, the amount set out as a Noteholder's
Maximum Commitment Amount in a Note Transfer less any part of that commitment
amount transferred by that Noteholder in accordance with the provisions of the
Variable Funding Agreement and the Conditions after the date of such Note
Transfer;
MAXIMUM EUR AVAILABLE AMOUNT means, as at a Determination Date an amount
calculated as equal to the EUR Equivalent of:
C
(A x B) x ---
D
where:
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A = the Net Receivables Pool Balance as at such Determination Date;
B = the Adjusted Advance Rate Percentage;
C = the USD Equivalent of the aggregate Outstanding Balance of all
Purchased EUR Receivables; and
D = the sum of (i) the aggregate Outstanding Balance of all Purchased USD
Receivables, (ii) the USD Equivalent of the aggregate Outstanding
Balances of all Purchased EUR Receivables and (iii) the USD Equivalent
of the aggregate Outstanding Balance of all Purchased GBP Receivables;
MAXIMUM GBP AVAILABLE AMOUNT means, as at a Determination Date an amount
calculated as equal to the GBP Equivalent of:
C
(A x B) x ---
D
where:
A = the Net Receivables Pool Balance as at such Determination Date;
B = the Adjusted Advance Rate Percentage;
C = the USD Equivalent of the aggregate Outstanding Balance of all Purchased
GBP Receivables; and
D = the sum of (i) the aggregate Outstanding Balance of all Purchased USD
Receivables, (ii) the USD Equivalent of the aggregate Outstanding
Balances of all Purchased EUR Receivables and (iii) the USD Equivalent
of the aggregate Outstanding Balance of all Purchased GBP Receivables;
MAXIMUM USD AVAILABLE AMOUNT means, as at a Determination Date an amount
calculated as equal to:
C
(A x B) x ---
D
where:
A = the Net Receivables Pool Balance as at such Determination Date;
B = the Adjusted Advance Rate Percentage;
C = the aggregate Outstanding Balance of all Purchased USD Receivables; and
D = the sum of (i) the aggregate Outstanding Balance of all Purchased USD
Receivables, (ii) the USD Equivalent of the aggregate Outstanding
Balances of all Purchased EUR Receivables and (iii) the USD Equivalent
of the aggregate Outstanding Balance of all Purchased GBP Receivables;
Page 26
MINIMUM CONSOLIDATED EXCESS LIQUIDITY means as at any date the sum of A+B+C
where:
A = Minimum Excess Liquidity as at such date;
B = the USD Equivalent of the aggregate amount of cash and cash equivalents
of the Sellers deposited or held in deposit or investment accounts
maintained with Citibank or any of its Affiliates and up to two other
Lenders as at such date; and
C = an amount calculated as equal to: (i) the lower of (A) the Variable
Funding Facility Limit and the product of the Net Receivables Pool
Balance as at such date and (B) the then applicable Adjusted Advance
Rate minus (ii) the aggregate USD Equivalent of the Principal Amount
Outstanding of all Notes as at such date;
MINIMUM EXCESS LIQUIDITY has the meaning given to it as at the Closing Date in
the US ABL Credit Agreement, it being agreed (i) that any amendment made after
the Closing Date to such definition in the US ABL Credit Agreement shall not
have the effect of amending this definition unless such amendment is made in
accordance with Clause 13 of this Deed and (ii) that any termination of or
waiver under the US ABL Credit Agreement shall not affect this definition;
MONTHLY DETERMINATION DATE means the last day of each calendar month, with the
first such Monthly Determination Date being 31 July 2006;
MONTHLY DETERMINATION PERIOD means any of the periods beginning on (but
excluding) a Monthly Determination Date and ending on (and including) the next
following Monthly Determination Date provided that the first such period shall
commence on the Cut-Off Date and end on the first Monthly Determination Date
following the Funding Date;
MONTHLY REPORTING DATE means the ninth Business Day of each calendar month, with
the first Monthly Reporting Date being 13 September 2006;
MONTHLY SETTLEMENT DATE means the third Business Day following a Monthly
Reporting Date, with the first Monthly Settlement Date being 18 September 2006;
MOODY'S means Moody's Investors Service Limited or the successor to its rating
business;
MP CASH MANAGER means Citibank acting through its London Branch or such other
person from time to time appointed by the Master Purchaser to act as its MP Cash
Manager in accordance with the Cash Management Agreement;
NET RECEIVABLES POOL BALANCE means, as at any date, the NRPB Before Excess
Concentrations and Exchange Rate Protection as at such date reduced (without
double counting or duplication) by the sum of:
(a) an amount expressed in USD equal to the sum of (i) the aggregate Excess
Concentrations in respect of Purchased USD Receivables, (ii) the USD
Equivalent of the aggregate Excess Concentrations in respect of Purchased
EUR
Page 27
Receivables, and (iii) the USD Equivalent of the aggregate Excess
Concentrations in respect of Purchased GBP Receivables; and
(b) the Exchange Rate Adjustment Amount;
NON-CONFORMING RECEIVABLE has the meaning specified in Clause 7.1 of the Master
Receivables Purchase and Servicing Agreement;
NON-FRENCH RECEIVABLES DEPOSIT ACCOUNTS means each of the accounts in the name
of a Seller with the Deposit Account Banks as set out in Schedule 8 and each of
the Master Purchaser Portuguese Deposit Accounts into which are collected
amounts paid by Obligors in respect of Purchased Receivables which are not
French Receivables (or such other account(s) of any Seller (or of the Master
Purchaser) with such other bank(s) as may, with the prior written consent of the
Master Purchaser, the Security Trustee and the Collateral Monitoring Agent, be
utilised for the collection of such amounts);
NORTH AMERICAN PROGRAMME means the asset based credit facility secured on, inter
alia, receivables relating to the supply of automotive products by certain
subsidiaries of the Parent effected pursuant to the US ABL Credit Agreement;
NOTE means a loan note issued by the Issuer under the Variable Funding
Agreement, denominated in EUR, USD or GBP and issued in registered form
substantially in the form set out in Schedule 2 to the Variable Funding
Agreement with the Conditions set out in Schedule 3 of the Variable Funding
Agreement;
NOTE INTEREST RATE has the meaning given to it in the Variable Funding
Agreement;
NOTE PRINCIPAL PAYMENT has the meaning given to it in Condition 4.3;
NOTE PROGRAMME LIMIT has the meaning given to it in Clause 2.1 of the Variable
Funding Agreement;
NOTE TRANSFER means any transfer substantially in the form set out in Schedule 4
to the Variable Funding Agreement entered into to transfer a Note from a
Noteholder to another person;
NOTEHOLDER means the registered holder of a Note issued pursuant to the Variable
Funding Agreement;
NOTEHOLDER ACCESSION LETTER means the letter substantially in the form set out
in Schedule 4 to the Variable Funding Agreement;
NOTEHOLDER ACCOUNT means each Noteholder USD Account, each Noteholder EUR
Account and each Noteholder GBP Account;
NOTEHOLDER EUR ACCOUNT means:
(a) in respect of Citibank, N.A., account no. 780839 at Citibank N.A., London
(Swift Code: CITGB2L);
(b) in respect of UBS AG, London Branch, account IBAN: DE58501306002864438010
at UBS Deutschland AG Frankfurt
Page 28
(UBSWDEFFXXX) for the account of UBS AG, London Branch (UBSWGB2LXXX);
(c) in respect of BNP Paribas, to its account at BNP Paribas SA (Swift Code:
BNPAFRPPPTX);
(d) in respect of BNP Paribas, Dublin Branch, account no.: 002680161 at BNP
Paribas, Paris Branch (Swift Code: BNPAFRPP), for the account of BNP
Paribas, Dublin Branch (Swift Code: BPLA1E3D);
(e) in respect of JPMorgan Chase Bank N.A., account no.:6231400604 at J P
Morgan Chase, Frankfurt (Swift Code: CHASDEFX) for the account of J P
Morgan Chase Bank, London (Swift Code: CHASGB2L);
(f) in respect of Bank of America N.A., account no.: 55848025 in the name of
Bank of America N.A., London;
(g) in respect of Credit Suisse, account no.: 8545111 at Citibank, N.A., London
Branch (Swift Code: CITIGB2L);
(h) in respect of Deutsche Bank AG London, account no.: 9257999 at Deutsche
Bank AG Frankfurt (Swift Code: DEUTDEFF), for the account of: Deutsche Bank
London (Swift Code: DEUTGB2L);
(i) in respect of The Bank of New York, account no.: 468-800-9710 at Bank of
New York, Frankfurt (Swift Code: IRVTDEFX) for the account of Bank of New
York, New York in favour of: Grand Cayman Islands, Ref: Visteon European;
(j) in respect of Wachovia Capital Finance Corporation (Central), account no.:
59023107 at Lloyds TSB Bank London (Swift Code: LOYDGB2LXXX) for the
account of Wachovia Bank London (Swift Code: ID PNBPGB2L);
(k) in respect of The CIT Group/Business Credit, Inc., account no.: 6231400604
at J.P. Morgan AG, Frankfurt (Swift Code: CHASDEFX) for the account of
JPMorgan Chase Bank N.A. London (Swift Code: CHASGB2L) for further credit
to account no.: 32771301 for the account of CIT Lending Services (EUR),
or in each case such other account denominated in EUR as may from time to time
be notified in writing by the relevant Noteholder to the Issuer and the Funding
Agent for the receipt of payments in respect of the EUR Note held by that
Noteholder;
NOTEHOLDER GBP ACCOUNT means:
(a) in respect of Citibank, N.A., account no.: 9380008011 at Citibank N.A., 11
Jewry Street EC2, London (Sort Code: 185004) for the account of Citbank NA,
London;
(b) in respect of UBS AG, London Branch, the account of UBS AG, London
(UBSWGB2LXXX), Sort Code 232323;
(c) in respect of BNP Paribas, to its account at Barclays Bank Plc, London
(Swift Code: BARC GB 22);
Page 29
(d) in respect of BNP Paribas, Dublin Branch, account no.: 026010 001 40 000 at
BNP Paribas, London Branch (Swift Code: BNPAGB22), for the account of BNP
Paribas, Dublin Branch (Swift Code: BNPAIE2D);
(e) in respect of JPMorgan Chase Bank, N.A., the account of J P Morgan Chase
Bank, London (Direct Sort Code: 60-92-42);
(f) in respect of Bank of America N.A., account no.: 55848033 in the name of
Bank of America NA., London;
(g) in respect of Credit Suisse, account no.: 39269462 at HSBC Bank plc, London
Branch (Sort Code: 400515);
(h) in respect of Deutsche Bank AG London, the account of Deutsche Bank AG,
London Branch, Sort Code 40-50-81;
(i) in respect of The Bank of New York, account no.: 464-600-8260 at Bank of
New York, London (Swift Code: IRVTGB2X) for the account of Bank of New
York, New York, in favour of: Grand Cayman Islands;
(j) in respect of Wachovia Capital Finance Corporation (Central), account no.:
12251333 at The Royal Bank of Scotland, London (Direct Sort Code: 16-56-71)
for the account of Wachovia Bank London (Swift Code: PNBPGB2L);
(k) in respect of The CIT Group/Business Credit, Inc., account no.: 32771302
for the account of CIT Lending Services (GBP) paid direct from JPMorgan
Chase Bank, N.A. (Swift Code: CHASGB2L, Sort Code: 60-92-42),
or in each case such other account denominated in GBP as may from time to time
be notified in writing by the relevant Noteholder to the Issuer and the Funding
Agent for the receipt of payments in respect of the GBP Note held by that
Noteholder;
NOTEHOLDER USD ACCOUNT means:
(a) in respect of Citibank, N.A., account no.: 10990765 at Citibank N.A.,
London (Swift Code: CITIGB2L) for the account of Citibank N.A., London,;
(b) in respect of UBS AG, London Branch, account no.: 101-WA-140007-000 at UBS
AG, Stamford (UBSWUS33XXX) for the account of UBS AG, London Branch
(UBSWGB2LXXX);
(c) in respect of BNP Paribas, account no.: 0200 194093 00136 at BNP Paribas
New York (Swift Code: BNP A US 3N) for the account of BNP Paribas SA (Swift
Code: BNPAFRPPPTX);
(d) in respect of BNP Paribas, Dublin Branch, account no.: 0200 1927590 0110 at
BNP Paribas New York Branch (Swift Code: BNPAUS3N) for the account of BNP
Paribas, Dublin Branch (Swift Code: BNPAIE2D);
(e) in respect of JP Morgan Chase, account no.: 0010962009 at JP Morgan Chase
New York (Swift Code: CHASUS33XXX) for the account of JP Morgan Chase Bank,
London (Swift Code: CHASGB2L);
Page 30
(f) in respect of Bank of America N.A., the account of Bank of America, New
York (Swift Code: BOFAUS3N) with further credit to Bank of America N.A.,
London account no.: 55848017;
(g) in respect of Credit Suisse, account no.: 890-0492-627 at The Bank of New
York (ABA: 021000018) for the account of CS Agency Cayman;
(h) in respect of Deutsche Bank AG London, account no.: 04411739 at Bankers
Trust Co. NY (Swift Code BKTRUS33), for the account of Deutsche Bank London
(Swift Code: DEUTGB2L);
(i) in respect of The Bank of New York, account no.: GLA111556 at The Bank of
New York (ABA 021000018) in the name of Commercial Loan Dept;
(j) in respect of Wachovia Capital Finance Corporation (Central), account no.:
59023107 at Lloyds TSB Bank London (Swift Code: LOYDGB2LXXX) for the
account of Wachovia Bank London (Swift Code: PNBPGB2L);
(k) in respect of The CIT Group/Business Credit, Inc., account no.: 144-0-64425
at JP Morgan Chase Bank for the account of The CIT Group/Business Credit,
Inc.,
or in each case such other account denominated in USD as may from time to time
be notified in writing by the relevant Noteholder to the Issuer and the Funding
Agent for the receipt of payments in respect of the USD Note held by that
Noteholder;
NOTES means the USD Notes, the EUR Notes and the GBP Notes;
NRPB BEFORE EXCESS CONCENTRATIONS AND EXCHANGE RATE PROTECTION means on any date
the Aggregate USD Equivalent Purchase Price as at such date reduced (for the
avoidance of doubt without double counting or duplication) by the sum of:
(a) the aggregate of (i) the Outstanding Balance of Purchased USD Receivables
that are not Eligible Receivables as at such date, and (ii) the USD
Equivalent of the Outstanding Balances of Purchased EUR Receivables and
Purchased GBP Receivables that are not Eligible Receivables as at such
date;
(b) the aggregate of (i) the Outstanding Balance of Purchased USD Receivables
that are subject to litigation, dispute or counterclaim, and (ii) the USD
Equivalent of the Outstanding Balances of all Purchased EUR Receivables and
Purchased GBP Receivables that are subject to litigation, dispute or
counterclaim;
(c) the sum of (i) the aggregate outstanding amount of deposits or advance
payments received in USD by a Seller or Servicer from any Obligor which are
not Collections received in respect of Purchased USD Receivables, and (ii)
the USD Equivalent of the aggregate outstanding amount of deposits or
advance payments received in EUR or GBP by a Seller or Servicer from any
Obligor which are not Collections received in respect of Purchased EUR
Receivables or Purchased GBP Receivables respectively;
(d) the sum of (i) the aggregate amount of Unapplied USD Cash at such time,
(ii) the USD Equivalent of the aggregate amount of Unapplied EUR Cash at
such time
Page 31
and (iii) the USD Equivalent of the aggregate amount of Unapplied GBP Cash
at such time;
(e) the sum of (A) the aggregate amount of (i) Unapplied Credit Notes issued by
the Sellers in USD and (ii) all other credit notes, refunds, discounts,
allowances or reverse invoices permitted or issued by the Sellers against
any Purchased USD Receivables at such time, and (B) the USD Equivalent of
the aggregate amount of (i) Unapplied Credit Notes issued by the Sellers in
EUR or GBP and (ii) all other credit notes, refunds, discounts, allowances
or reverse invoices permitted or issued by the Sellers against any
Purchased EUR Receivables or Purchased GBP Receivables at such time;
(f) the aggregate of all amounts (actual but not contingent) owed by the
Sellers to any Obligors (if such amount is denominated in any currency
other than USD, then as expressed in its USD Equivalent);
(g) an amount expressed in USD equal to the aggregate amount of Manual Invoices
as at such date (if any such amount is denominated in EUR or GBP, then as
expressed in its USD Equivalent);
(h) an amount expressed in USD equal to the aggregate amount of Chargebacks as
at such date (if any such amount is denominated in EUR or GBP, then as
expressed in its USD Equivalent);
(i) an amount expressed in USD equal to the Payment Term Excess Amount as at
such date (if any such amount is denominated in EUR or GBP, then as
expressed in its USD Equivalent); and
(j) such other reserves or deductions which the Collateral Monitoring Agent, in
its reasonable discretion, determines appropriate and notifies to the
Servicers;
OBLIGOR means a customer of the Seller who is party to a Contract relating to
the supply of automotive products giving rise to Receivables but shall not
include any customer which is an Affiliate of the Seller or the Parent;
OUTSTANDING BALANCE means, in relation to a particular Purchased Receivable on a
particular date, the total balance of the amounts outstanding thereunder
(including any applicable VAT thereon);
PARENT means Visteon Corporation, a corporation incorporated under the laws of
the State of Delaware with its principal place of business at One Village Center
Drive, Van Buren Township, Michigan 48111, U.S.A.;
PARENT UNDERTAKING means the letter of undertaking from the Parent dated on or
about the date of this Deed under which the Parent undertakes that the Sellers
and the Servicers will duly and punctually perform their respective obligations
and duties under each of the Transaction Documents;
PAYMENT DATE means:
(a) in respect of the Receivables which were existing as at the Funding Date
and purchased from a Seller at such time, the Funding Date; and
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(b) in respect of any Receivables purchased at any time thereafter during the
Securitisation Availability Period, any date on which the Purchase Price in
respect of such Receivables is paid;
PAYMENT TERM EXCESS AMOUNT means, on any date, an amount expressed in USD that
is equivalent to the amount by which the aggregate outstanding balance of
Purchased Receivables that are required to be paid in full between 125 and 180
days from the invoice date exceeds 10 per cent. of the Receivables Pool (for the
purposes of this calculation, all amounts denominated in EUR or GBP being
expressed in their USD Equivalent);
PEAK RECEIVABLES BALANCE means, in respect of a Monthly Determination Period and
a particular Obligor, an amount equal to the highest aggregate amount of the USD
Equivalent of the Outstanding Balances of all Receivables owed by that Obligor
to the Sellers in that Monthly Determination Period;
PERSON means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof;
POOL RECEIVABLES means at any time all Purchased Receivable then outstanding;
PORTUGUESE ACCOUNT CONTROL AGREEMENT means each account control agreement
entered into by Visteon Portuguesa Limited in accordance with the Master
Receivables Purchase and Servicing Agreement between, amongst others, the Master
Purchaser, the applicable Deposit Account Bank(s) and the Security Trustee in
respect of the Non-French Receivables Deposit Accounts in the name of the
Portuguese Seller;
PORTUGUESE FCC ACCOUNT CONTROL AGREEMENTS means each account control agreement,
entered into by Visteon Portuguesa Limited in accordance with the FCC Master
French Receivables Transfer Agreement, between, amongst others, the FCC
Management Company, the FCC Custodian and the applicable Deposit Account Bank(s)
in respect of the French Receivables Deposit Accounts in the name of the
Portuguese Seller;
PORTUGUESE SELLER means Visteon Portuguesa Limited;
POTENTIAL MASTER PURCHASER EVENT OF DEFAULT means any event which with the
giving of notice or the lapse of time would constitute, or the existence of any
circumstance permitting a determination that if made would give rise to, a
Master Purchaser Event of Default or any combination thereof;
POTENTIAL SERVICER DEFAULT means any event which with the giving of notice or
the lapse of time would constitute, or the existence of any circumstance
permitting a determination that if made would give rise to a Servicer Default or
any combination thereof;
POTENTIAL TERMINATION EVENT means any event which with the giving of notice or
the lapse of time would constitute, or the existence of any circumstance
permitting a determination that if made would give rise to a Termination Event
or any combination thereof;
PRINCIPAL AMOUNT OUTSTANDING means, on any given date in respect of a Note:
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(a) the initial par value of the Note, less
(b) the aggregate amount of all Note Principal Payments in respect of such Note
that have become due and payable and have been paid on or prior to such
given date, plus
(c) the aggregate amount of each payment of Further Subscription Price in
respect of such Note;
PROGRAMME TERMINATION DATE means the earliest to occur of: (a) the fifth
anniversary of the Closing Date and (b) the date on which a Termination Event
occurs and has been notified by the Collateral Monitoring Agent to the Parent;
PURCHASE DATE means, (a) in respect of a Receivable which was existing as at the
Funding Date, the Funding Date and (b) in respect of a Receivable not existing
as at the Funding Date, the date on which such Receivable arises;
PURCHASE PRICE means, in respect of each Purchased Receivable:
A x (1-B)
where:
A is the Outstanding Balance of such Purchased Receivable on its Payment
Date appearing on the relevant Invoice or otherwise recorded on the
computer system or records of a Seller; and
B is the relevant Discount Percentage for such Purchased Receivable as at
the most recent Determination Date;
PURCHASED FRENCH RECEIVABLE means a Purchased Receivable which is a French
Receivable;
PURCHASED RECEIVABLE means (i) any Assignable Receivable which has been
purchased by the Master Purchaser pursuant to the Master Receivables Purchase
and Servicing Agreement, which remains outstanding and which has not been
repurchased by a Seller, (ii) any English Restricted Receivable held on trust by
the English Seller pursuant to the English Restricted Receivables Trust which
remains outstanding and reference thereto shall include, unless the context
otherwise requires, the beneficial interest of the Master Purchaser under the
English Restricted Receivables Trust in respect thereof and (iii) any French
Receivable which has been purchased by FCC Visteon pursuant to the FCC Master
French Receivables Transfer and Servicing Agreement, which remains outstanding
and which has not been repurchased by the Seller;
PURCHASED EUR RECEIVABLE means a Purchased Receivable that is a EUR Receivable;
PURCHASED GBP RECEIVABLE means a Purchased Receivable that is a GBP Receivable;
PURCHASED USD RECEIVABLE means a Purchased Receivable that is a USD Receivable;
RECEIVABLE means each amount payable by an Obligor resident in an Eligible
Country or in Sweden or the United States of America, for automotive products
supplied by a Seller
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to an Obligor under a Contract and all rights to, or to demand, sue for,
recover, receive and give receipts for payment of any such amount or any invoice
and the proceeds of payment and any Related Security with respect thereto;
RECEIVABLES POOL means the aggregate of the USD Equivalent of the Outstanding
Balances of all Purchased Receivables at any time;
RECEIVABLES WARRANTIES means the representations and warranties set out in Part
B of Schedule 1 to the Master Receivables Purchase and Servicing Agreement;
RECEIVER means a receiver appointed by the Security Trustee pursuant to Clause
19 of the Master Purchaser Deed of Charge;
REFERENCE RATE shall have the meaning given to it in Schedule 8 to the Variable
Funding Agreement or such other higher rate as may be notified in writing by the
Parent to the Funding Agent, the Collateral Monitoring Agent, the Master
Purchaser and the Lenders in accordance with Clause 20.5;
REGISTER has the meaning given to it in the Conditions;
REGISTRAR has the meaning given to it in the Conditions;
REGULATION S means Regulation S under the Securities Act;
RELATED CONTRACT RIGHTS means, in relation to a Receivable, any rights
(including without limitation, rights of retention of title) under or relating
to the Contract to which such Receivable relates;
RELATED DEBT TERMINATION EVENT means in respect of the Notes, the occurrence of
any Subordinated VLN Termination Event or the acceleration of the Subordinated
VLN pursuant to Clause 10.2 of the Subordinated VLN Facility Agreement;
RELATED SECURITY means all security interests, liens, guaranties, insurance,
letters of credit and other agreements securing or supporting payment of any
Receivable, returned goods relating to any sale giving rise to a Receivable (to
the extent achievable under applicable law), the contract, invoice(s) and books
and records relating to any Receivable;
RELEVANT JURISDICTION means each of Ireland, the United Kingdom, France and the
United States of America;
REPORTING DATE means a Monthly Reporting Date, or a Semi-Monthly Reporting Date,
as the case may be;
REQUIRED DILUTION RESERVE PERCENTAGE means, on any date, a percentage equal to
the amount (if any) by which the Three Month Average Dilution Ratio calculated
(if such date is a Monthly Determination Date) as at such date or (if such date
is not a Monthly Determination Date) as at the immediately preceding Monthly
Determination Date exceeds 5 per cent.;
REVIEW means third party (including without limitation by the Collateral
Monitoring Agent, the Security Trustee or any of their respective Affiliates)
reviews, inspections and verifications of the Receivables, the Related Security
and the related books and records
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and collection systems of the Sellers and/or the Servicers in accordance with
the customary procedures for securitisation transactions adopted by the
Collateral Monitoring Agent;
S&P means Standard and Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc. or the successor to its rating business;
SCREEN RATE means:
(a) in relation to USD LIBOR, the British Bankers' Association Interest
Settlement Rate for USD deposits; and
(b) in relation to GBP LIBOR, the British Bankers' Association Interest
Settlement Rate for GBP deposits; and
(c) in relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant period,
(d) displayed on the appropriate page of the Reuters screen. If the agreed page
is replaced or service ceases to be available, the Funding Agent may
specify another page or service displaying the appropriate rate after
consultation with the Lenders and in each case acting in good faith;
SECURITIES ACT means the United States Securities Act of 1933, as amended;
SECURITISATION AVAILABILITY PERIOD means the period from and including the
Funding Date to (but excluding) the Programme Termination Date;
SECURITY TRUSTEE means The Law Debenture Trust Corporation p.l.c. and/or any
other person acting as security trustee from time to time pursuant to the Master
Purchaser Deed of Charge;
SELLERS means each of Visteon UK Limited, Visteon Deutschland GmbH, Visteon
Systemes Interieurs S.A.S., Visteon Ardennes Industries S.A.S., Visteon Sistemas
Interiores Espana S.L., Cadiz Electronica S.A. and Visteon Portuguesa Limited,
each in its capacity as seller of Receivables to the Master Purchaser under the
Master Receivables Purchase and Servicing Agreement;
SELLER ACCOUNT means in respect of a Seller and an Agreed Currency, the bank
account of that Seller (other than a Deposit Account) as notified in writing by
that Seller to the Master Purchaser, the Collateral Monitoring Agent and the MP
Cash Manager;
SELLER CREDIT AND COLLECTION PROCEDURES means the origination, credit and
collection procedures employed by the Sellers in relation to the provision and
sale of automotive products and related services as set out on the read only
computer disc attached to this Deed as Schedule 9;
SELLER PERMITTED ENCUMBRANCE means:
(a) any Encumbrance created by a Seller by or pursuant to the Transaction
Documents; and
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(b) any netting or set-off arrangement pursuant to which a Deposit Account Bank
is permitted to deduct the amount of any normal account fees owed to it in
connection with a Deposit Account from amounts standing to the credit of
such Deposit Account;
SELLER PERMITTED INDEBTEDNESS means in respect of a Seller, any indebtedness
that such Seller would not be prohibited from creating, issuing, incurring,
assuming or becoming liable in respect of pursuant to Article VI, Section 6.01
of the US ABL Credit Agreement as at the Closing Date it being agreed (i) that
any amendment made after the Closing Date to such provision of the US ABL Credit
Agreement shall not have the effect of amending this definition unless such
amendment is made in accordance with Clause 13 of this Deed and (ii) that any
termination of or waiver under the US ABL Credit Agreement shall not affect this
definition;
SELLER PROPORTION means as at any date and in respect of a Seller the proportion
(expressed as a percentage) calculated by dividing (i) the aggregate USD
Equivalent of the Outstanding Balances of all Purchased Receivables sold to the
Master Purchaser and FCC Visteon by such Seller by (ii) the aggregate USD
Equivalent of the Outstanding Balances of all Purchased Receivables sold to the
Master Purchaser and FCC Visteon by all Sellers;
SELLER WARRANTIES means the representations and warranties set out in Part A of
Schedule 1 to the Master Receivables Purchase and Servicing Agreement;
SEMI-MONTHLY DETERMINATION DATE means the 15th day of each calendar month with
the first Semi-Monthly Determination Date being 15 September 2006;
SEMI-MONTHLY DETERMINATION PERIOD means any of the periods beginning on (but
excluding) a Determination Date and ending on (and including) the following
Determination Date provided that the first such period shall commence on the
Cut-Off Date and end on the first Determination Date following the Funding Date;
SEMI-MONTHLY REPORTING DATE means the fifth Business Day following each
Semi-Monthly Determination Date, with the first Semi-Monthly Reporting Date
being 22 September 2006;
SEMI-MONTHLY SETTLEMENT DATE means the third Business Day following a
Semi-Monthly Reporting Date, with the first Semi-Monthly Settlement Date being
27 September 2006;
SENIOR EXPENSES PERCENTAGE means, on any Monthly Determination Date, the
fraction (expressed as a percentage) obtained by dividing the Estimated Master
Purchaser Senior Expenses as at such Monthly Determination Date by the aggregate
of the USD Equivalent of the Outstanding Balances of all Purchased Receivables
as at such Monthly Determination Date;
SERVICER means any of the Master Servicer or any Sub-Servicer, as the context
shall require, and SERVICERS means the Master Servicer and each Sub-Servicer;
SERVICER DEFAULT means the occurrence of any of the events described in Schedule
2;
SERVICER FEE PERCENTAGE means 0.25 per cent.;
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SERVICING FEES means the fees referred to in Clause 16 of the Master Receivables
Purchase and Servicing Agreement;
SETTLEMENT DATE means a Semi-Monthly Settlement Date or a Monthly Settlement
Date, as the case may be;
SHORT INTEREST PERIOD means, in relation to any amount of Principal Amount
Outstanding which comprises Further Subscription Price received by the Master
Purchaser in respect of a Note other than on an Interest Payment Date, the
period from (and including) the date on which such Further Subscription Price
was paid by the Noteholder to (but excluding) the immediately following Interest
Payment Date;
SOLVENCY CERTIFICATE means each solvency certificate to be executed by the
Seller in a form set out in Schedule 4 to the Master Receivables Purchase and
Servicing Agreement;
SPANISH DEEDS OF PLEDGE means each of the deeds of pledge of bank accounts
entered into in accordance with Clause 18(o) of the Master Receivable Purchase
and Servicing Agreement between a Spanish Seller, the Master Purchaser and the
Security Trustee in respect of the Non-French Receivables Deposit Accounts in
the name of such Spanish Seller;
SPANISH FCC DEEDS OF PLEDGE means each of the deeds of pledge of bank accounts,
entered into in accordance with the FCC Master French Receivables Transfer
Agreement, between a Spanish Seller and FCC Visteon in respect of the French
Receivables Deposit Accounts in the name of such Spanish Seller;
SPANISH INITIAL TRANSFER PERIOD means the period commencing on (and including)
the Funding Date and ending on (and excluding) the immediately following Spanish
Transfer Date;
SPANISH MASTER PURCHASER ACCEPTANCE means an acceptance of a Spanish Offer Deed
made by the Master Purchaser in the terms, conditions and with the formalities
specified in Schedule 11 to the Master Receivables Purchase and Servicing
Agreement;
SPANISH OFFER DEED means a Spanish offer deed entered into by a Spanish Seller
before a Spanish Notary in term terms, conditions and with the formalities
specified in Schedule 11 to the Master Receivables Purchase and Servicing
Agreement;
SPANISH PURCHASE DATE means, in respect of each Spanish Receivable, the date on
which it is transferred or assigned to the Master Purchaser, in accordance with
Schedule 11 to the Master Receivables Purchase and Servicing Agreement;
SPANISH PURCHASED RECEIVABLES means Purchased Receivables that are Spanish
Receivables;
SPANISH RECEIVABLES means receivables arising from a Contract governed by
Spanish law;
SPANISH SELLERS means Visteon Sistemas Interiores Espana S.A. and Cadiz
Electronica S.A.;
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SPANISH SUBSEQUENT TRANSFER PERIOD means each period (not being the Spanish
Initial Transfer Period) commencing on (and including) one Spanish Transfer Date
and ending on (but excluding) the immediately following Spanish Transfer Date;
SPANISH SERVICER means each of Visteon Sistemas Interiores Espana S.A. and Cadiz
Electronica S.A.
SPANISH TRANSFER DATE means the Funding Date and each Monthly Settlement Date;
SPANISH TRANSFER DEED means a Spanish Offer Deed intervened to attach by means
of a notarial form (diligencia) its correspondent Master Purchaser Acceptance;
SPANISH TRANSFER PERIOD means, as the case may be, the Spanish Initial Transfer
Period or any Spanish Subsequent Transfer Period;
ST FEE LETTER means the fee letter dated on or about the date hereof between
Visteon Corporation, the Master Purchaser and The Law Debenture Trust
Corporation p.l.c.;
SUB-SERVICER means an Initial Sub-Servicer and any sub-servicer appointed after
the Closing Date pursuant to Clause 8 of the Master Receivables Purchase and
Servicing Agreement;
SUBORDINATED VLN CONDITION and SUBORDINATED VLN CONDITIONS has the meaning given
to it in the Subordinated VLNs;
SUBORDINATED VLN FACILITY means the committed subordinated note issuance
facility extended by the Subordinated VLN Facility Provider to the Master
Purchaser pursuant to the Subordinated VLN Facility Agreement;
SUBORDINATED VLN FACILITY AGREEMENT means the facility agreement dated on or
about the Closing Date between the Master Purchaser, the Security Trustee and
the Subordinated VLN Facility Provider;
SUBORDINATED VLN FACILITY PROVIDER means Visteon Netherlands Finance B.V. and
each other party that accedes to the Subordinated VLN Facility Agreement as a
Subordinated VLN Facility Provider;
SUBORDINATED VLN FINAL MATURITY DATE means, in relation to a Subordinated VLN,
the date determined and specified by the Master Purchaser in accordance with the
provisions of the Subordinated VLN Facility Agreement to be the final maturity
date of such Subordinated VLN;
SUBORDINATED VLN GRID means, in relation to a Subordinated VLN, the Grid
contained in the Schedule to such Subordinated VLN showing increases and
decreases in the Subordinated VLN Principal Amount Outstanding of such
Subordinated VLN and maintained by the Subordinated VLN Holder;
SUBORDINATED VLN HOLDER means the registered holder of a Subordinated VLN issued
pursuant to the Subordinated VLN Facility Agreement;
SUBORDINATED VLN HOLDER ACCESSION LETTER means a letter substantially in the
form set out in Schedule 3 to the Subordinated VLN Facility Agreement;
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SUBORDINATED VLN HOLDER ACCOUNTS means such accounts in the name of the
Subordinated VLN Facility Provider denominated in each of EUR, USD or GBP as the
Subordinated VLN Facility Provider and any other Subordinated VLN Holder may
notify in writing from time to time to the Master Purchaser, the Security
Trustee and the MP Cash Manager, it being agreed that the Subordinated VLN
Facility Provider shall notify each of the Master Purchaser, the Security
Trustee and the MP Cash Manager of one such account in each Agreed Currency by
no later than two Business Days prior to the first Settlement Date following the
Closing Date);
SUBORDINATED VLN INITIAL FUNDING REQUEST means an offer, substantially in the
form set out in Schedule 5 to the Subordinated VLN Facility Agreement, made by
the Master Purchaser to the Subordinated VLN Facility Provider pursuant to
Clause 5.1 of the Subordinated VLN Facility Agreement, in relation to the issue
by the Master Purchaser of a Subordinated VLN and the subscription by the
Subordinated VLN Facility Provider of such Subordinated VLN;
SUBORDINATED VLN INITIAL SUBSCRIPTION PRICE means, in relation to a Subordinated
VLN, an amount equal to the initial par value of such Subordinated VLN, in the
Agreed Currency in which that Subordinated VLN is denominated, such amount
specified by the Master Purchaser in the Subordinated VLN Initial Funding
Request;
SUBORDINATED VLN INTEREST RATE has the meaning given to it in the Subordinated
VLN Facility Agreement;
SUBORDINATED VLN PRINCIPAL AMOUNT OUTSTANDING means, on any given date in
respect of a Subordinated VLN, in the Agreed Currency in which that Subordinated
VLN is denominated:
(a) the initial par value of the Subordinated VLN, less
(b) the aggregate amount of all Subordinated VLN Principal Payments in respect
of such Subordinated VLN that have become due and payable and have been
paid on or prior to such given date, plus
(c) the aggregate amount of each payment of a Further Subordinated Advance;
SUBORDINATED VLN PRINCIPAL PAYMENT has the meaning given to it in Subordinated
VLN Condition 4.3 of the Subordinated VLN Facility Agreement;
SUBORDINATED VLN REQUIRED AMOUNT means in respect of:
(a) USD, the USD Subordinated VLN Required Amount;
(b) EUR, the EUR Subordinated VLN Required Amount; and
(c) GBP, the GBP Subordinated VLN Required Amount;
SUBORDINATED VLN TERMINATION EVENT means, in relation to the Subordinated VLN,
any of the events listed in Condition 6.1 of the Subordinated VLN;
SUBORDINATED VLNS means the USD Subordinated VLN, the EUR Subordinated VLN and
the GBP Subordinated VLN;
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SUBSCRIBER means each Noteholder which subscribes for notes pursuant to and in
accordance with the Variable Funding Agreement;
SUBSIDIARY means any corporation or other entity of which securities having
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or indirectly
owned by the Parent or the Seller or one or more Subsidiaries of the Parent or
the Seller or the Parent or the Seller, as the case may be, and one or more
Subsidiaries;
SUPPLEMENTAL PURCHASE PRICE has the meaning given to it in Clause 3.9 of the
Master Receivables Purchase and Servicing Agreement;
TARGET means Trans-European Automated Real-time Gross settlement Express
Transfer system;
TARGET DAY means a day on which the TARGET system is open for settlement of
payments in EUR;
TAXES means any present or future taxes, levies, duties, charges, fees,
deductions or withholdings of any nature whatsoever imposed or levied by or on
behalf of France, the United Kingdom, Spain, Germany, Portugal, any other
Eligible Country, Ireland or the United States of America, together with any
interest, charges or penalties thereon and TAX and TAXATION and similar words
shall be construed accordingly;
TERMINATION EVENT means the occurrence of any of the events set out in Schedule
1;
THREE MONTH AVERAGE DILUTION RATIO means as at any Monthly Determination Date,
the percentage equal to (i) the sum of the Dilution Ratio calculated in respect
of each of the three consecutive Monthly Determination Periods ending on such
Monthly Determination Date divided by (ii) 3;
TRANSACTION DOCUMENTS means the Master Receivables Purchase and Servicing
Agreement, each Master Purchaser Receivables Power of Attorney, the Corporate
Services Agreement, each Account Control Agreement, the Variable Funding
Agreement, each Note, the Master Purchaser Deed of Charge, the Master Purchaser
German Receivables Security Assignment Agreement, each other Master Purchaser
Security Document, the Cash Management Agreement, the Subordinated VLN Facility
Agreement, the Subordinated VLNs, the Parent Undertaking, the FCC Regulations,
the FCC Master French Receivables Transfer and Servicing Agreement, each other
FCC Document, this Deed and any other agreement or document executed pursuant to
or in connection with any of the foregoing;
UK ACCOUNT CONTROL DEED means the declaration of trust entered into by the
English Sub-Servicer for the benefit of the Master Purchaser on or about the
date hereof in respect of the English Sub-Servicer Collection Accounts;
UK FCC ACCOUNT CONTROL DEED means the declaration of trust entered into by the
English Sub-Servicer for the benefit of the FCC Visteon in respect of the French
Receivables Deposit Accounts in the name of the English Seller in accordance
with the FCC Documents;
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UNAPPLIED CREDIT NOTE means the maximum face amount of any credit note, refund,
discount, adjustment or allowance issued by a Seller which has not been applied
to reduce or offset the Outstanding Balance of Receivables owed by any Obligor;
UNAPPLIED EUR CASH means, on any date, the aggregate amount of cash collections
and other cash proceeds received in EUR on or prior to such date for payment in
respect of or on account of EUR Receivables, the Obligors in respect of which
such EUR amounts have been received, or the EUR Receivable to which such amounts
relate, have not been identified;
UNAPPLIED GBP CASH means, on any date, the aggregate amount of cash collections
and other cash proceeds received in GBP on or prior to such date for payment in
respect of or on account of GBP Receivables, the Obligors in respect of which
such GBP amounts have been received, or the GBP Receivable to which such amounts
relate, have not been identified;
UNAPPLIED USD CASH means, on any date, the aggregate amount of cash collections
and other cash proceeds received in USD on or prior to such date for payment in
respect of or on account of USD Receivables, the Obligors in respect of which
such USD amounts have been received, or the USD Receivable to which such amounts
relate, have not been identified;
US ABL CREDIT AGREEMENT means the credit agreement dated on or about the date
hereof between, inter alios, the Parent, Citicorp USA, Inc. and JPMorgan Chase
Bank, N.A.;
US PERSON means a "U.S. person" as defined in Regulation S;
USD EQUIVALENT or DOLLAR EQUIVALENT means on the day on which a calculation
falls to be made (i) in relation to an amount in USD, that amount, (ii) in
relation to an amount in EUR, the amount obtained by applying the applicable USD
Spot Rate as at such date to such amount of EUR, (iii) in relation to an amount
in GBP, the amount obtained by applying the applicable USD Spot Rate as at such
date to such amount of GBP and (i) in relation to an amount in any other
currency, the amount obtained by applying the applicable spot rate of exchange
quoted by Citibank for the purchase in the London Foreign Exchange Market of USD
with that currency at or about 9.00 a.m. (London time) on such date;
USD FURTHER SUBORDINATED ADVANCE has the meaning given to it in Clause 5.5 of
the Subordinated VLN Facility Agreement;
USD LIBOR means:
(a) the applicable Screen Rate; or
(b) (if such Screen Rate is not available for the relevant period in relation
to which such interest rate is being determined) the rate (rounded upwards
to four decimal places) as offered by the Funding Agent to leading banks in
the London interbank market,
at or about 11.00 a.m. on the date upon which the determination of the relevant
rate is to be made for the offering of deposits in USD for a period comparable
to the applicable period in relation to which such interest rate is being
determined;
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USD NOTES means the USD denominated variable loan notes issued by the Issuer and
subscribed for by the Lenders under the Variable Funding Agreement, issued in
registered form substantially in the form set out in Schedule 1 to the Variable
Funding Agreement with the Conditions set out in Schedule 2 of the Variable
Funding Agreement, each such note being a USD NOTE;
USD POST-ENFORCEMENT PRIORITY OF PAYMENTS means the order of priority of
payments set out in Clause 8.3 of the Master Purchaser Deed of Charge and
reference to a particular item of the USD Post-Enforcement Priority of Payments
is to the corresponding paragraph of Clause8.3 of the Master Purchaser Deed of
Charge;
USD PRE-ENFORCEMENT PRIORITY OF PAYMENTS means the order of priority of payments
set out in Clause 7.4 of the Master Purchaser Deed of Charge and reference to a
particular item of the USD Pre-Enforcement Priority of Payments is to the
corresponding paragraph of Clause 7.4 of the Master Purchaser Deed of Charge;
USD PURCHASE PRICE means the Purchase Price payable in USD in respect of USD
Receivables;
USD RECEIVABLE means a Receivable that is denominated and payable in USD;
USD SPOT RATE means (i) in respect of an amount in EUR on any date, the spot
rate of exchange quoted by Citibank for the purchase in the London Foreign
Exchange Market of USD with EUR at or about 9.00 a.m. (London time) on such date
and (ii) in respect of an amount in GBP on any date, the spot rate of exchange
quoted by Citibank for the purchase in the London Foreign Exchange Market of USD
with GBP at or about 9.00 a.m. (London time) on such date;
USD SUBORDINATED VLN the USD denominated subordinated variable loan note issued
by the Master Purchaser and subscribed for by the Subordinated VLN Facility
Provider under the Subordinated VLN Facility Agreement, issued in registered
form substantially in the form set out in Schedule 1 to the Subordinated VLN
Facility Agreement with the Subordinated VLN Conditions set out in Schedule 2 of
the Subordinated VLN Facility Agreement;
USD SUBORDINATED VLN REQUIRED AMOUNT means as at the Funding Date and as at any
Determination Date, an amount equal to the sum of:
(a) the aggregate Purchase Price of all Purchased USD Receivables (other than
the French Receivables) which are outstanding on such date (or in relation
to the calculation made in respect of the Funding Date which are to be
purchased by the Master Purchaser on the Funding Date); and
(b) the principal amount outstanding of any FCC Units denominated in USD then
held by the Master Purchaser,
less the Principal Amount Outstanding of the USD Notes as at such date (or in
relation to the calculation made in respect of the Funding Date which are to be
issued by the Master Purchaser on the Funding Date) provided that prior to the
Variable Funding Facility Termination Date, the USD Subordinated VLN Required
Amount shall not be less than USD 1,000;
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VALUE ADDED TAX and VAT shall be construed as a reference to value added tax
under laws of any jurisdiction;
VARIABLE FUNDING AGREEMENT means the agreement dated on or about the date hereof
between the Issuer, the Lenders, the Security Trustee, the Funding Agent
relating to the issues of the Notes;
VARIABLE FUNDING FACILITY means the note issuance facility granted to the Issuer
by the Lenders under the Variable Funding Agreement to enable the Issuer to
raise funds by issuing Notes and subsequently through advances made by the
Lenders (in the form of increases in the Principal Amount Outstanding of the
Notes);
VARIABLE FUNDING FACILITY LIMIT means, subject to any increase agreed in
accordance with Clause 20, USD 325 million or such other amount as agreed
between the Parent, the Funding Agent and the Lenders;
VARIABLE FUNDING FACILITY TERMINATION DATE means the earliest to occur of:
(a) 5 Business Days' notice by a Seller or the Parent;
(b) 5 years from the Closing Date; and
the occurrence of a Termination Event.
VISTEON GROUP means the Parent, any direct or indirect subsidiary of the Parent;
WEIGHTED AVERAGE FLOATING RATE means a percentage calculated as at each Monthly
Determination Date equal to:
(AxB)+(CxD)+(ExF)
- -----------------
G
where:
A = USD LIBOR as at such Monthly Determination Date;
B = the aggregate Outstanding Balance of Purchased US Receivables as at such
date;
C = EURIBOR as at such Monthly Determination Date;
D = the USD Equivalent of the aggregate Outstanding Balance of Purchased
EUR Receivables as at such date;
E = GBP LIBOR as at such Monthly Determination Date;
F = the USD Equivalent of the aggregate Outstanding Balance of Purchased
GBP Receivables as at such date;
G = the sum of (i) B, (ii) D, and (iii) F.
2.2 Any reference in any Transaction Document to:
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ADMINISTRATION, EXAMINATION, BANKRUPTCY, LIQUIDATION, DISSOLUTION, RECEIVERSHIP
or WINDING-UP of a person shall be construed so as to include any equivalent or
analogous proceedings (including any suspension of payments) under the laws of
the jurisdiction in which such person is incorporated (or, if not a company or
corporation, domiciled) or any jurisdiction in which such person has its
principal place of business;
AGREED FORM means, in relation to any documents, the draft of the document which
has been agreed between the relevant parties thereto and initialled on their
behalf for the purpose of identification;
CLAUSE, RECITAL, APPENDIX or SCHEDULE in any Transaction Document is, subject to
any contrary indication, a reference to a Clause of, or a recital or appendix or
schedule to, the relevant Transaction Document;
EUR or E or EURO means the currency introduced at the commencement of the third
stage of European Economic and Monetary Union as of 1 January 1999 pursuant to
the Treaty establishing the European Communities as amended by the Treaty on
European Union;
HOLDING COMPANY means, in relation to a company or corporation, any other
company or corporation in respect of which it is a subsidiary;
INCLUDING shall be construed as meaning including without limitation;
INDEBTEDNESS shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a person shall be construed as being INSOLVENT if such person goes into
administration, bankruptcy, liquidation, examination, dissolution, receivership
or winding-up or such person is unable to pay its debts as they fall due or such
person's liabilities exceed its assets;
MONTH is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month save
that, where any such period would otherwise end on a day which is not a Business
Day, it shall end on the next Business Day, unless that day falls in the
calendar month succeeding that in which it would otherwise have ended, in which
case it shall end on the preceding Business Day; Provided that, if a period
starts on the last Business Day in a calendar month or if there is no
numerically corresponding day in the month in which that period ends, that
period shall end on the last Business Day in that later month (and references to
MONTHS shall be construed accordingly);
PERSON or PERSON shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
POUNDS STERLING, POUNDS, STERLING, GBP or L means the lawful currency as at the
date of this Deed of the United Kingdom;
STAMP DUTY shall be construed as a reference to any stamp, registration or other
documentary Tax or other similar Taxes or duties (including, without limitation,
any
Page 45
penalty or interest payable in connection with any failure to pay or any delay
in paying out any of the same);
SUBSIDIARY of a company or corporation shall be construed as a reference to any
company or corporation (a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation; or (b) more than half the issued share
capital of which is beneficially owned, directly or indirectly, by the first
mentioned company or corporation; or (c) which is a subsidiary of another
subsidiary of the first-mentioned company or corporation and for these purposes
a company or corporation shall be treated as being controlled by another if that
other company or corporation is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body; and
US DOLLARS, USD or US$ means the lawful currency of the United States of
America.
2.3 When used in any of the Transaction Documents, the terms RELEVANT SETTLEMENT
DATE, RELEVANT DETERMINATION DATE or RELEVANT DETERMINATION PERIOD will mean the
Settlement Date, relative to a particular Determination Date and/or
Determination Period, or the Determination Date relative to a particular
Determination Period and/or Settlement Date or the Determination Period relative
to a particular Determination Date and/or Settlement Date as the case may be.
2.4 Where a denominator in any fraction to be used in connection with any
calculation in a definition is zero, the relevant fraction will be zero.
2.5 The headings in any Transaction Document shall not affect its
interpretation. References to Clauses, Schedules and Articles in any Transaction
Document shall, unless its context otherwise requires, be construed as
references to the Clauses of, Schedules to, and Articles of such document.
2.6 Unless the context otherwise requires, words denoting the singular number
only shall include the plural number also and vice versa, words denoting one
gender only shall include the other genders and words denoting persons only
shall include firms, corporations and other organised entities, whether separate
legal entities or otherwise, and vice versa.
2.7 Unless the context otherwise requires, any reference in any Transaction
Document to:
(a) any agreement or other document shall be construed as a reference to the
relevant agreement or document as the same may have been, or may from time
to time be, replaced, extended, amended, varied, novated, supplemented or
superseded;
(b) any statutory provision or legislative enactment shall be deemed also to
refer to any re-enactment, modification or replacement thereof and any
statutory instrument, order or regulation made thereunder or under any such
re-enactment;
(c) any party to a Transaction Document shall include references to its
successors, permitted assigns and any person deriving title under or
through it; references to the address of any person shall, where relevant,
be deemed to be a reference to its address as current from time to time;
Page 46
(d) a person shall include a reference to an individual, a partnership, a
corporation, a business trust, a joint stock company, a trust, an
unincorporated association, a joint venture, a governmental authority and
any other entity of whatever nature, as the context may require;
(e) unless stated otherwise, any provision setting forth an obligation to pay
an amount in respect of remuneration or costs or charges or expenses shall
be inclusive of any applicable amount in respect of VAT or similar Tax
charged or chargeable in respect thereof at any rate; and
(f) the provisions contained in any schedule or appendix to any Transaction
Document have effect as if they had been incorporated in such Transaction
Document.
2.8 Unless expressly agreed otherwise, interest rates and discount factors refer
to a calculation in arrear on the basis of actual days elapsed and 360 days per
annum.
2.9 A reference to a Monthly Determination Period or Monthly Determination Date
in any definition or other provision of any other Transaction Document shall, to
the extent such Monthly Determination Period or Monthly Determination Date would
fall prior to the Funding Date, such reference shall be construed as a reference
to a complete calendar month and the last day of a complete calendar month
respectively.
3. AGREEMENT
The parties hereto acknowledge that the provisions contained in Clauses 3 to 6
and Clauses 12 to 28 (inclusive) shall, except where the context otherwise
requires and save where there is an express provision to the contrary, have
effect with regard to and apply in respect of, each Transaction Document (as the
same shall be amended, varied or supplemented from time to time in accordance
with the terms thereof) as though the same were set out therein in full mutatis
mutandis.
4. JURISDICTION
SUBMISSION TO JURISDICTION
4.1 All the parties agree that the courts of England are (subject to 4.2 and 4.3
below) to have exclusive jurisdiction to settle any dispute (including claims
for set-off and counterclaims) which may arise in connection with the creation,
validity, effect, interpretation or performance of, or the legal relationships
established by, this Agreement or otherwise arising in connection with this
Agreement and for such purposes irrevocably submit to the jurisdiction of the
English courts.
4.2 The agreement contained in clause 4.1 above is included for the benefit of
the Master Purchaser, the Noteholders, the Lenders, the Collateral Monitoring
Agent, the MP Cash Manager, the Master Purchaser Transaction Account Bank, the
Funding Agent and the Security Trustee. Accordingly, notwithstanding the
exclusive agreement in clause 4.1 above, each of the Master Purchaser, the
Noteholders, the Lenders, the Collateral Monitoring Agent, the MP Cash Manager,
the Master Purchaser Transaction Account Bank, the Funding Agent and the
Security Trustee shall retain the right to bring proceedings against any other
party in any other court which has jurisdiction by virtue of Council Regulation
EC No 44/2001 of 22 December 2000 on jurisdiction and the
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recognition and enforcement of judgments in civil and commercial matters, the
Convention on Jurisdiction and the Enforcement of Judgments signed on 27
September 1968 (as from time to time amended and extended) or the Convention on
Jurisdiction and Enforcement of Judgments signed on 16 September 1988 (as in
each case from time to time amended and extended).
4.3 Each of the Master Purchaser, the Noteholders, the Lenders, the Collateral
Monitoring Agent, the MP Cash Manager, the Master Purchaser Transaction Account
Bank, the Funding Agent and the Security Trustee may in its absolute discretion,
take proceedings against any other party in the Courts of any other country
which may have jurisdiction including the Courts of the State of New York to
whose jurisdiction each of the Parent, the Sellers, the Servicers, the
Subordinated VLN Facility Provider and the Master Purchaser irrevocably submits.
4.4 Each of the Parent, the Subordinated VLN Facility Provider, the Servicers
and the Master Purchaser irrevocably waives any objections to the jurisdiction
of any Court referred to in this Clause 4.
4.5 Each of the Parent, the Subordinated VLN Facility Provider, the Sellers, the
Servicers and the Master Purchaser irrevocably agrees that a judgment or order
of any Court referred to in this clause in connection with this Agreement is
conclusive and binding on it and may be enforced against it in the courts of any
other jurisdiction.
AGENTS FOR SERVICE OF PROCESS:
4.6 Without prejudice to any other mode of service:
(a) unless expressly otherwise agreed in any of the Transaction Documents each
of the Parent, each Seller (other than Visteon UK Limited), each Servicer
(other than Visteon UK Limited) and the Subordinated VLN Facility Provider
appoints the following as their respective agent for service of process
relating to any proceedings before the courts of England pursuant to Clause
4 and agrees to maintain the process agent in England notified to the
Funding Agent:
Visteon UK Limited
Endeavour Drive
Basildon
Essex SS14 3WF
Attention: Steven Gawne / John Donofrio / Andrew Steven Gill / Glenda Minor
(b) unless expressly otherwise agreed in any of the Transaction Documents each
of the Master Purchaser and the Corporate Administrator appoints the
following as their respective agent for service of process relating to any
proceedings before the courts of England pursuant to Clause 4 and agrees to
maintain the process agent in England notified to the Funding Agent:
Wilmington Trust SP Services (London) Limited
Tower 42 (Level 11)
International Financial Centre
25 Old Broad Street
London EC2N 1HQ
Page 48
Attention: Ruth Samson
(c) each party agrees that any failure by a process agent to notify any party
of the process shall not invalidate the proceedings concerned; and
(d) each party consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its address for
service of process for the time being applying under this Deed.
5. FURTHER ASSURANCES
Each of the parties (other than the Security Trustee) agrees to perform (or
procure the performance of) all further acts and things, and execute and deliver
(or procure the execution and delivery of) such further documents, deeds,
agreements, consents, notices or authorisations as may be required by law or as
may be necessary in the reasonable opinion of the Master Purchaser or the
Funding Agent or the Security Trustee to implement and/or give effect to each
Transaction Document and the transactions contemplated thereby.
6. NOTICES
6.1 Any notice to be given by one party to any other party under, or in
connection with, any Transaction Document shall be in writing and signed by or
on behalf of the party giving it. Any such notice shall be served by sending it
by fax to the number set out in Clause 6.2, or delivering it by hand, or sending
it by pre-paid recorded delivery or registered post, to the address set out in
Clause 6.2 and in each case marked for the attention of the relevant party (or
as otherwise notified from time to time in accordance with the provisions of
this Clause 6.1). Any notice so served by hand, fax or post shall be deemed to
have been duly given:
(a) in the case of delivery by hand, when delivered;
(b) in the case of fax, at the time of transmission;
(c) in the case of pre-paid recorded delivery or registered post, at 10.00 a.m.
(London time) on the second Business Day following the date of posting,
provided that in each case where delivery by hand or fax occurs after 5.00 p.m.
(London time) on a Business Day or on a day which is not a Business Day, service
shall be deemed to occur at 9.00 a.m. on the next following Business Day.
References to time in this Clause are to local time in the country of the
addressee.
All notices shall be copied to the Master Purchaser, the Servicer, the Seller,
the Funding Agent.
6.2 The addresses and fax numbers of the parties for the purpose of Clause 6.1
are as follows:
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THE PARENT
VISTEON CORPORATION Address: One Village Center Drive
Van Buren Township,
MI 48111
USA
Fax: +1 734-736-5563
For the attention of: Treasurer
With a copy to: Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, IL 60601
Fax: +1 312-861-2200
For the attention of: Linda K. Myers PC
THE SUBORDINATED VLN FACILITY
PROVIDER
VISTEON NETHERLANDS FINANCE B.V. Address: Visteon Strasse 4-10
50170 Kerpen
Germany
Fax: +49 2273 5952 533
For the attention of: Bruno Weber
THE SELLERS AND THE SERVICERS
VISTEON UK LIMITED Address: Endeavour Drive
Basildon
Essex SS14 3WF
United Kingdom
Fax: + 44 1268 700001
For the attention of: Steven Gawne/
John Donofrio/
Andrew Steven Gill/
Glenda Minor
VISTEON DEUTSCHLAND GMBH Address: Visteon Strasse 4-10
50170 Kerpen
Germany
Fax: + 49 2273 5951 269
Page 50
For the attention of: Roland Greff/
Dr Mathias Huttenrauch/
Tom Schultz
VISTEON SYSTEMES INTERIEURS S.A.S. Address: Tour Europlaza
20, avenue Andre Prothin
La Defense 4
92927 La Defense Cedex
France
Fax: + 33 1 5813 6550
For the attention of: Joel Coque
VISTEON ARDENNES INDUSTRIES S.A.S. Address: Z.I. De Montjoly
BP 228
08102 Charleville - Mezieres Cedex
France
Fax: + 33 3 2457 2252
For the attention of: Christian Jean
VISTEON SISTEMAS INTERIORES ESPANA S.L. Address: VICA/dentro de Nissan Motor 16
Zona Franca, Sector - B, C/3, n
08040 Barcelona
Spain
Fax: + 34 93478 3534
For the attention of: Joel Coque/
Bruno Brun/
Bruno Pierre Marie Courtet/
Elena Ubeda Hernandez
CADIZ ELECTRONICA S.A. Address: Carretera Comarcal El Puerto
Sanlucar 602,
Km8
Apartado de Correos 200
11500 El Puerto de Santa Maria
Spain
Fax: + 34 956 483 351
Page 51
For the attention of: Jose Paulo de Sousa Ribeiro/
Daniel Linan Macias/
Sunil Bilolikar/
Elena Ubeda Hernandez
VISTEON PORTUGUESA LIMITED Address: Estrada Nacional No. 252-Km12
Parque Industrial das Carrascas
2951-503 Palmela
Portugal
Fax: + 315 212 339 269
For the attention of: Sunil Bilolikar/
Glenda Minor/
John Donofrio
THE MASTER PURCHASER
VISTEON FINANCIAL CENTRE P.L.C. Address: c/o Wilmington Trust SP Services
(Dublin) Limited, First Floor, 7
Exchange Place, International
Financial Services Centre, Dublin
1, Ireland
Fax: + 353 1 612 5550
For the attention of: Alan Geraghty
WITH A COPY TO:
CITIBANK, N.A. (as MP
Cash Manager)
Address: 14th Floor, Citigroup Centre,
Canada Square, Canary Wharf,
London E14 5LB
Fax: +44 (0)20 7192 3116
For the attention of: Tony Warner, SF Team
THE CORPORATE ADMINISTRATOR
Page 52
WILMINGTON TRUST SP SERVICES (DUBLIN) Address: First Floor, 7 Exchange Place,
LIMITED International Financial Services
Centre, Dublin 1, Ireland
Fax: + 353 1 612 5550
For the attention of: Alan Geraghty
THE LENDERS AND NOTEHOLDERS
CITIBANK, N.A. Address: Citibank, N.A., London
UK Loans Processing Unit
2nd Floor
4 Harbour Exchange
Isle of Dogs
London E14 9GE
United Kingdom
Fax: +44 (0)20 7500 5806
For the attention of: UK Loans Processing Unit
UBS AG Address: 1 Finsbury Avenue
London EC2M 2PP
England
Fax: +44 20 7568 3978/5607
For the attention of: Banking Products Services
BNP PARIBAS Address: La Defense Esplanade
1 Place de l'Iris - La Defense 2,
F-92400 COURBEVOIE
Fax: +33 1 40 14 08 69
For the attention of: BNP Paribas
APAC Commercial International
BNP PARIBAS, DUBLIN BRANCH Address: 5 Georges Dock
I.F.C.S.,
Dublin 1
Ireland
Fax: +353 1 612 5022
For the attention of: Brenda Tyrrell
Page 53
JP MORGAN CHASE BANK, N.A. Address: 4th Floor Prestige Knowledge Park
Near Marathalli Junction
Outer Ring Road
Kadabeesanahalli
Vathur Hobli
Bangalore 560087
Fax: +44 (0) 207 492 3297 or +44 (0)
207 492 3298
For the attention of: Veena B Gowda
J.P. Morgan Chase European Loan
Operations
BANK OF AMERICA, N.A. Address: 20975 Swenson Drive,
Suite 200
Waukesha, WI 53186
USA
Fax: +1 262-798-4882
For the attention of: Robert J. Lund
Sr. Vice President
CREDIT SUISSE Address: One Madison Avenue
New York
NY 100100
USA
Fax: +1 212-538-3380
For the attention of: Ed Markowski/Hazel Leslie
DEUTSCHE BANK AG LONDON Address: Winchester House
1 Great Winchester Street
London EC2N 2DB
Fax: +44 20 7545 8510
For the attention of: Stephan Specht/Toby Boon
THE BANK OF NEW YORK Address: One Wall Street
CMA 22nd Floor
New York
N.Y. 10286
Fax: +1 212 635 7978
For the attention of: Terry Blackburn
Page 54
WACHOVIA CAPITAL FINANCE CORPORATION Address: 150 South Wacker Drive
(CENTRAL) Suite 2200
Chicago
IL 60606
USA
Fax: +1 312 332 6768
For the attention of: Mark Dunne
THE CIT GROUP / BUSINESS CREDIT, INC.. Address: 11 West 42nd Street,
13th Floor
New York, NY 10036
USA
Fax: +1 212 461-7762
For the attention of: Steven M. Schuit
THE FUNDING AGENT
CITIBANK INTERNATIONAL PLC Address: 5TH Floor, Citigroup Centre,
Canada Square, Canary Wharf,
London E14 5LB
Fax: +44 20 8636 3824
For the attention of: Loans Agency
THE MP CASH MANAGER
CITIBANK, N.A. Address: 14th Floor, Citigroup Centre,
Canada Square, Canary Wharf,
London E14 5LB
Fax: +44 20 7192 3116
For the attention of: Tony Warner, SF Team
THE COLLATERAL MONITORING AGENT
CITICORP USA, INC. Address: 2 Penn's Way, New Castle, DE
19720, U.S.A.
Fax: +1 212 894 0849
For the attention of: Janet Marvel
Page 55
THE SECURITY TRUSTEE
THE LAW DEBENTURE TRUST CORPORATION Address: Fifth Floor, 100 Wood Street,
P.L.C. London EC2V 7EX
Fax: +44 20 7606 0643
For the attention of: The Manager, Commercial Trusts
(ref: 66933)
THE MASTER PURCHASER TRANSACTION
ACCOUNT BANK
CITIBANK, N.A. Address: 14th Floor, Citigroup Centre,
Canada Square, Canary Wharf,
London E14 5LB
Fax: +44 20 7192 3116
For the attention of: Tony Warner, SF Team
A party may notify any of the other parties to any of the Transaction Documents
of a change to its name, relevant addressee, address or fax number for the
purposes of this Clause 6.2, provided that such notice shall only be effective
on:
(a) the date specified in the notice as the date on which the change is to take
place; or
(b) if no date is specified or the date specified is less than five Business
Days after the date on which notice is given, the date following five
Business Days after notice of any change has been given.
7. YIELD PROTECTION INDEMNITIES
INCREASED COSTS
7.1 (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or Noteholder; or
(ii) impose on any Lender or Noteholder or the London interbank market
any other condition affecting the Variable Funding Agreement or
any Notes or any commitment or participation by that Lender or
Noteholder thereunder;
and the result of any of the foregoing shall be to increase the cost to
such Lender or Noteholder of making of any funding available pursuant to
the Variable Funding Agreement or any Note or in holding any Note (or of
maintaining its obligation to provide any funding pursuant to the Variable
Funding Agreement or any Note or to reduce the amount of any sum received
or receivable by such
Page 56
Lender or Noteholder under any Transaction Document (whether of principal,
interest or otherwise), then the Parent and the Sellers will pay to such
Lender or Noteholder, as the case may be, such additional amount or amounts
as will compensate such Lender or Noteholder as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or Noteholder determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lender's or Noteholder's capital or on the capital of such
Lender's or Noteholder's holding company, if any, as a consequence of the
Variable Funding Agreement or the Notes held by it, to a level below that
which such Lender or Noteholder or such Lender's or Noteholder's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or Noteholder's policies and the policies of
such Lender's or Noteholder's holding company with respect to capital
adequacy), then from time to time the Parent and the Sellers will pay to
such Lender or Noteholder, as the case may be, such additional amount or
amounts as will compensate such Lender or Noteholder or such Lender's or
Noteholder's holding company for any such reduction suffered.
BREAKAGE COSTS
7.2 In the event of the payment of any principal of any Note other than on a
Settlement Date (including as a result of a Master Purchaser Event of Default)
or in the event of a failure to borrow after a Funding Request has been
delivered, then in any such event, the Parent and the Sellers shall compensate
each Lender and Noteholder for the loss, cost and expense attributable to such
event. Such loss cost or expense to any Lender or Noteholder shall be deemed to
include an amount determined by such Lender or Noteholder to be the excess, if
any, of (i) the amount of interest which would have accrued on the principal
amount of such Note had such event not occurred, at the Reference Rate that
would have been applicable to such Note, for the period from the date of such
event to the next following Settlement Date, above (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate
which such Lender or Noteholder would bid were it to bid, at the commencement of
such period, for deposits in the same Agreed Currency as the relevant Note of a
comparable amount and period from other banks in the London interbank market (or
in the case of EUR the European interbank market).
DEMAND AND PAYMENT
7.3 Any demand made by a Noteholder or Lender under Clause 7.1 or, as the case
may be, Clause 7.2 shall be accompanied by a statement signed by a duly
authorised signatory of such Noteholder or Lender, as the case may be giving (to
the extent that such information is within its possession and knowledge and that
disclosure of such information would not involve the breach of any duty of
confidentiality owed by the Noteholder or the Lender, as the case may be, to any
other person) reasonable particulars of:
(a) in the case of a demand under Clause 7.2, the calculation of the claim for
reimbursement; and
(b) in the case of a demand made under Clause 7.1, the Relevant Change and how
the relevant amount has been calculated,
Page 57
together with any supporting documentation. The Parent and the Sellers shall
promptly upon written demand pay such Lender or Noteholder, as the case may be,
the amount shown as due on any such demand within 10 days after receipt thereof.
Each amount certified by the Noteholder or, Lender, as the case may be, as being
due under this Clause 7 shall, in the absence of manifest error, be conclusive
evidence of the amount so claimed.
7.4 Failure or delay on the part of any Lender or Noteholder to demand any
compensation pursuant to this Clause 7 shall not constitute a waiver of such
Lender's or Noteholder's right to demand such compensation; provided that the
Parent and the Sellers shall not be required to compensate a Lender or a
Noteholder pursuant to Clause 7.1 for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or Noteholder, as the case
may be, notifies the Parent of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or Noteholder's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180 day period
referred to above shall be extended to include the period of retroactive effect
thereof.
8. DEFAULT INTEREST
8.1 If any sum due and payable by any Seller, any Servicer, the Parent or any
Subordinated VLN Facility Provider is not paid on the due date therefor in
accordance with the provisions of the relevant Transaction Documents or if any
sum due and payable by any Seller, any Servicer, the Parent or any Subordinated
VLN Facility Provider under any judgment or decree of any court in connection
herewith is not paid on the date of such judgment or decree, the period
beginning on such due date or, as the case may be, the date of such judgment or
decree and ending on the date upon which the obligation of such Seller, such
Servicer, the Parent or such Subordinated VLN Facility Provider to pay such sum
(the balance thereof for the time being unpaid being herein referred to as an
unpaid sum) is discharged shall be divided into successive periods, each of
which (other than the first) shall start on the last day of the preceding such
period and the duration of each of which shall be selected by the person to whom
such sum is payable.
8.2 During each such period relating thereto as is mentioned in Clause 8.1 an
unpaid sum shall bear interest at the rate per annum which is the sum of two per
cent. and (i) with respect to amounts payable in EUR, EURIBOR, (ii) with respect
to amounts payable in USD, USD LIBOR, and (iii) with respect to amounts payable
in GBP, GBP LIBOR.
8.3 Any interest which shall have accrued under Clause 8.2 in respect of an
unpaid sum shall be due and payable and shall be paid by such Seller, such
Servicer, the Parent or such Subordinated VLN Facility Provider (as the case may
be) at the end of the period by reference to which it is calculated or on such
other dates as the Person to whom such sum is owed may specify by written notice
to such Seller, such Servicer, the Parent or such Subordinated VLN Facility
Provider (as the case may be).
Page 58
9. SELLER AND SERVICER INDEMNITIES AND UNDERTAKING BY THE MASTER PURCHASER
INDEMNITIES BY THE SELLERS
9.1 Without limiting any other rights that the Master Purchaser, the
Noteholders, the Lenders, the Security Trustee, the Collateral Monitoring Agent,
the MP Cash Manager, the Master Purchaser Transaction Account Bank or the
Funding Agent or any of their respective Affiliates or members or any of their
respective officers, directors, employees or advisors (each, an INDEMNIFIED
PARTY) may have hereunder or under the other Transaction Documents, or under
applicable law, each Seller (each, an INDEMNIFYING PARTY) hereby severally
agrees to indemnify each Indemnified Party from and against any and all costs,
expenses, claims, losses, damages and liabilities (including reasonable lawyers'
fees and disbursements provided such reimbursement obligations shall be limited
to the fees and disbursements of one counsel for the Security Trustee (and, to
the extent necessary as determined by the Security Trustee, one or more local
counsel), one counsel to act for both the Master Purchaser Transaction Account
Bank and the MP Cash Manager, one counsel for the Collateral Monitoring Agent
and of one counsel for the Funding Agent, the Lenders and the Noteholders and,
to the extent necessary as determined by the Collateral Monitoring Agent, one or
more local counsel) (all of the foregoing being collectively referred to as
INDEMNIFIED AMOUNTS) arising out of or resulting from the Master Receivables
Purchase and Servicing Agreement or any other Transaction Document or the use of
proceeds of purchases or reinvestments or the ownership of Receivables
originated by that Indemnifying Party or of the Notes or in respect of any
Receivable originated by that Indemnifying Party or any Contract to which such
Indemnifying Party is a party, excluding, however, (a) Indemnified Amounts to
the extent that such Indemnified Amounts have resulted from gross negligence,
bad faith or wilful default on the part of such Indemnified Party, (b) recourse
for Receivables which are not collected, not paid or uncollectible on account of
the insolvency, bankruptcy or financial inability to pay of the applicable
Obligor or (c) Indemnified Amounts in respect of any income taxes or any other
tax or fee measured by income incurred by such Indemnified Party arising out of
or as a result of the Master Receivables Purchase and Servicing Agreement or any
other Transaction Document or the ownership of Receivables or Notes or in
respect of any Receivable or any Contract, (d) Indemnified Amounts resulting
from a breach by the Indemnified Party in respect of its obligations under any
of the Transaction Documents, or (e) Indemnified Amounts arising from a dispute
between Lenders and not involving the Funding Agent (in its capacity as such) or
the Parent PROVIDED THAT to the extent that any Indemnified Amounts are not
attributable to a particular Indemnifying Party, each Indemnifying Party shall
only be liable to the extent of that Seller's Seller Proportion of the relevant
Indemnified Amount. Indemnified Amounts shall be payable on demand to each
Indemnified Party without any set-off, deduction, counterclaim or withholding
from any and all amounts necessary to indemnify such Indemnified Party. Without
limiting or being limited by the foregoing and without extending the scope of
the foregoing in particular in relation to the several liability only of each
Seller, each Seller shall pay on demand to each Indemnified Party without any
set off, deduction, counterclaim or withholding any and all amounts necessary to
indemnify such Indemnified Party from and against any and all Indemnified
Amounts relating to or resulting from any of the following:
(a) the characterisation in any Master Servicer Report or other written
statement made by or on behalf of that Indemnifying Party of any Receivable
as an Eligible
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Receivable or as included in the Net Receivables Pool Balance which, as of
the date of such Master Servicer Report or other statement, is not an
Eligible Receivable or should not be included in the Net Receivables Pool
Balance;
(b) any representation or warranty or statement made or deemed made by that
Indemnifying Party (or any of its officers) under or in connection with any
Transaction Document which shall have been incorrect in any material
respect when made;
(c) the failure by that Indemnifying Party to comply with any applicable law,
rule or regulation with respect to any Purchased Receivable or the related
Contracts, or the failure of any Purchased Receivable or the related
Contract to conform to any such applicable law, rule or regulation; or the
failure by that Indemnifying Party to pay, remit or account for any taxes
related to or included in a Receivable, when due;
(d) the failure by that Indemnifying Party to vest (i) in the Master Purchaser
effective title in the Purchased Receivables or, with respect to English
Restricted Receivables, a valid and enforceable beneficial interest in a
trust over such Receivables, and the Related Security and the Collections
free and clear of any Encumbrances or (ii) in the Security Trustee a first
priority perfected security interest as provided in the Master Purchase
Deed of Charge;
(e) the failure by that Indemnifying Party, when so required in accordance with
the Transaction Documents, to have properly notified any Obligor of the
transfer, sale or assignment of, or creation of a trust over, any
Receivable pursuant to the Transaction Documents to the extent such notice
is required to perfect the same under any applicable law and for the
purposes of this Clause (e), PERFECT means to render opposable, publish and
allow the setting up of the purchaser's interest in, and right to collect
payment under, the assets which are the subject of such transfer, sale and
assignment, and to make opposable, publish and allow the setting up of such
transfer, sale and assignment as against Obligors and other third parties,
including any liquidator, administrator, trustee in bankruptcy or other
insolvency official under any applicable law;
(f) any dispute, claim, counterclaim, set off or defence (other than discharge
in insolvency of the Obligor) of the Obligor to the payment of any
Receivable in, or purporting to be a Purchased Receivable sold by that
Indemnifying Party (including, without limitation, a defence based on such
Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim whether of the Obligor or any third party
resulting from the sale of automotive products related to such Receivable
or the furnishing or failure to furnish such merchandise or services or
relating to collection activities with respect to such Receivable (if such
collection activities were performed by a Seller or any of its Affiliates
acting as Servicer);
(g) any failure of that Indemnifying Party to perform its duties or obligations
under the Contracts;
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(h) any product liability, property damage, personal injury, consequential loss
or other claim arising out of or in connection with the automotive products
which are the subject of any Contract to which that Indemnifying Party is a
party;
(i) the commingling of Collections of Purchased Receivables sold by that
Indemnifying Party at any time with other funds;
(j) any investigation, litigation or proceeding related to the Master
Receivables Purchase and Servicing Agreement or any other Transaction
Document or the use of proceeds of purchases or reinvestments or the
ownership of Receivables or Notes or in respect of any Receivable or
Related Security or Contract (including, without limitation, in connection
with the preparation of a defence or appearing as a third party witness in
connection therewith and regardless of whether such investigation,
litigation or proceeding is brought by a Seller, an Indemnified Party or
any other Person or an Indemnified Party is otherwise a party thereto);
(k) any failure of that Indemnifying Party to comply with its covenants
contained in this Deed or any other Transaction Document; and
(l) any claim arising out of any failure by that Indemnifying Party to obtain a
consent from the relevant Obligor to the transfer, sale or assignment of
any Receivable pursuant to the Transaction Documents;
INDEMNITIES BY THE SERVICERS
9.2 Without limiting any other rights that the Master Purchaser, the
Noteholders, the Lenders, the Security Trustee, the Collateral Monitoring Agent,
the MP Cash Manager, the Master Purchaser Transaction Account Bank or the
Funding Agent or any of their respective Affiliates or members or any of their
respective officers, directors, employees or advisors (each, a SPECIAL
INDEMNIFIED PARTY) may have hereunder or under applicable law, and in
consideration of its appointment as Servicer under the Master Receivables
Purchase and Servicing Agreement, each Servicer hereby severally agrees to
indemnify each Special Indemnified Party from and against any and all claims,
losses and liabilities (including reasonable lawyers' fees provided such
reimbursement obligations shall be limited to the fees and disbursements of one
counsel for the Security Trustee (and, to the extent necessary as determined by
the Security Trustee, one or more local counsel), one counsel to act for both
the Master Purchaser Transaction Account Bank and the MP Cash Manager, one
counsel for the Collateral Monitoring Agent and one counsel for the Funding
Agent, the Lenders and the Noteholders and, to the extent necessary as
determined by the Collateral Monitoring Agent, of one or more local counsel))
(all of the foregoing being collectively referred to as SPECIAL INDEMNIFIED
AMOUNTS) arising out of or resulting from any of the following (excluding,
however, (a) Special Indemnified Amounts to the extent have resulted from gross
negligence, bad faith or wilful default on the part of such Special Indemnified
Party, (b) recourse for Receivables which are not collected, not paid or
uncollectible on account of the insolvency, bankruptcy or financial inability to
pay of the applicable Obligor, (c) any income taxes or any other tax or fee
measured by income incurred by such Special Indemnified Party arising out of or
as a result of this Deed or any other Transaction Document or the ownership of
Receivables or Notes or in respect of any Receivable or any Contract, (d)
resulting from a breach by the Indemnified Party in respect of its obligations
under, or (e) arising from a dispute
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between Lenders and not involving the Funding Agent (in its capacity as such) or
the Parent):
(a) any representation made or deemed made by that Servicer pursuant to the
Master Receivables Purchase and Servicing Agreement or any other
Transaction Document which shall have been incorrect in any respect when
made or any other representation or warranty or statement made or deemed
made by that Servicer under or in connection with the Master Receivables
Purchase and Servicing Agreement or any other Transaction Document which
shall have been incorrect in any material respect when made;
(b) the failure by that Servicer to comply with any applicable law, rule or
regulation with respect to any Purchased Receivable or Contract;
(c) any failure of that Servicer to perform its duties or obligations in
accordance with the provisions of the Master Receivables Purchase and
Servicing Agreement or any other Transaction Document;
(d) the commingling of Collections of Purchased Receivables at any time by that
Servicer with other funds;
(e) any breach of an obligation of that Servicer reducing or impairing the
rights of the Master Purchaser, the Noteholders, Lenders, the Security
Trustee, Collateral Monitoring Agent, the MP Cash Manager or the Funding
Agent with respect to any Pool Receivable or the value of any Receivable;
(f) any Servicer Fees or other costs and expenses payable to any replacement
servicer, to the extent in excess of the Servicer Fees payable to that
Servicer under the Master Receivables Purchase and Servicing Agreement; or
(g) payment of any claim brought by any Person other than a Special Indemnified
Party arising from any activity by that Servicer or its Affiliates in
servicing, administering or collecting any Receivable.
Special Indemnified Amounts shall be payable on demand to each Special
Indemnified Party without any set off, deduction, counterclaim or withholding
from any and all amounts necessary to indemnify such Special Indemnified Party.
PAYMENT OF AMOUNTS BY MASTER PURCHASER
9.3 If and to the extent that any Seller, any Servicer or the Parent do not pay
when due any amount payable by them to any Affected Person under any Transaction
Document (each such unpaid amount being an UNPAID AMOUNT), the Master Purchaser
hereby undertakes as a separate and primary obligation that it will pay to the
relevant Affected Person an amount equal to the relevant Unpaid Amount on the
immediately succeeding Settlement Date, subject to and in accordance with the
applicable Master Purchaser Priority of Payments. Each Seller, each Servicer and
the Parent hereby severally agrees to reimburse the Master Purchaser for any
Unpaid Amounts paid by the Master Purchaser to an Affected Person pursuant to
this Clause 9.3 in respect of a failure to pay by that Seller, Servicer or
Parent and to indemnify the Master Purchaser against any cost, loss, liability,
damage or expense suffered or incurred by the Master Purchaser
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in consequence of such failure by such Seller, Servicer or Parent to pay such
Unpaid Amount when due.
9.4 The Master Purchaser shall be entitled to set-off any amount payable by it
to the Seller, the Servicer or the Parent against any amount payable to the
Master Purchaser by Seller, the Servicer or the Parent under Clause 9.3.
9.5 The indemnities and agreements set out in this Clause 9 shall survive the
termination or expiry of this Deed or the resignation or replacement of any
Indemnified Party or Special Indemnified Party.
10. COLLATERAL MONITORING AGENT
APPOINTMENT OF THE COLLATERAL MONITORING AGENT
10.1 (a) Each of the Lenders and the Noteholders and the Master Purchaser
appoints the Collateral Monitoring Agent to act as its agent under and in
connection with the Transaction Documents.
(b) Each of the Lenders and the Noteholders and the Mater Purchaser authorise
the Collateral Monitoring Agent to exercise the rights, powers, authorities
and discretions specifically given to the Collateral Monitoring Agent under
or in connection with the Transaction Documents together with any other
incidental rights, powers, authorities and discretions.
DUTIES OF THE COLLATERAL MONITORING AGENT
10.2 (a) The Collateral Monitoring Agent shall promptly forward to a Lender or a
Noteholder or the Master Purchaser the original or a copy of any document
which is delivered to the Collateral Monitoring Agent by any other party
pursuant to the Transaction Documents.
(b) Except where a Transaction Document specifically provides otherwise, the
Collateral Monitoring Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to any Lender or
Noteholder or to the Master Purchaser.
NO FIDUCIARY DUTIES
10.3 (a)Nothing in this Agreement constitutes the Collateral Monitoring Agent as
a trustee or fiduciary of any other person.
(b) The Collateral Monitoring Agent shall not be bound to account to any Lender
or Noteholder or to the Master Purchaser for any sum or the profit element
of any sum received by it for its own account.
BUSINESS WITH THE GROUP
10.4 The Collateral Monitoring Agent may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member of the
Visteon Group.
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RIGHTS AND DISCRETIONS
10.5 (a) The Collateral Monitoring Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably
be assumed to be within his knowledge or within his power to
verify.
(b) The Collateral Monitoring Agent may assume (unless it has received notice
to the contrary in its capacity as agent for the Master Purchaser, the
Lenders and the Noteholders) that:
(i) no Master Purchaser Event of Default, Cash Control Event,
Termination Event or Servicer Default has occurred;
(ii) any right, power, authority or discretion vested in any Party has
not been exercised;
(c) The Collateral Monitoring Agent may engage, pay for and rely on the advice
or services of any lawyers, accountants, surveyors or other experts.
(d) The Collateral Monitoring Agent may act in relation to the Transaction
Documents through its personnel and agents.
(e) The Collateral Monitoring Agent may disclose to any other Party any
information it reasonably believes it has received as Collateral Monitoring
Agent under this Agreement.
(f) Notwithstanding any other provision of any Transaction Document to the
contrary, the Collateral Monitoring Agent shall not be obliged to do or
omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a fiduciary
duty or duty of confidentiality.
MAJORITY LENDERS' INSTRUCTIONS
10.6 (a) Unless a contrary indication appears in a Transaction Document, the
Collateral Monitoring Agent shall (i) exercise any right, power, authority
or discretion vested in it as Collateral Monitoring Agent in accordance
with any instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any right,
power, authority or discretion vested in it as Collateral Monitoring Agent)
and (ii) not be liable for any act (or omission) if it acts (or refrains
from taking any action) in accordance with an instruction of the Majority
Lenders.
(b) Unless a contrary indication appears in a Transaction Document, any
instructions given by the Majority Lenders will be binding on all the other
Lenders and Noteholders.
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(c) The Collateral Monitoring Agent may refrain from acting in accordance with
the instructions of the Majority Lenders (or, if appropriate, the Lenders
or Noteholders) until it has received such security as it may require for
any cost, loss or liability (together with any associated VAT) which it may
incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders or Noteholders) the Collateral Monitoring Agent
may act (or refrain from taking action) as it considers to be in the best
interest of the Lenders and the Noteholders.
(e) The Collateral Monitoring Agent is not authorised to act on behalf of a
Lender or a Noteholder (without first obtaining that Lender's or
Noteholder's consent) in any legal or arbitration proceedings relating to
any Transaction Document. This paragraph (e) shall not apply to any legal
or arbitration proceeding relating to the perfection, preservation or
protection of rights under the Security Documents or enforcement of the
Security Documents or the Encumbrances created thereby.
RESPONSIBILITY FOR DOCUMENTATION
10.7 The Collateral Monitoring Agent is not, nor shall be, responsible:
(a) for the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by the Collateral Monitoring Agent, the Master
Purchaser, any Seller, any Servicer, any Subordinated VLN Facility Provider
or any other person given in or in connection with any Transaction Document
or the transactions contemplated in the Transaction Documents; or
(b) for the legality, validity, effectiveness, adequacy or enforceability of
any Transaction Document or any Encumbrances created thereby or any other
agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Transaction Document.
EXCLUSION OF LIABILITY
10.8 (a) Without limiting paragraph (b) below, the Collateral Monitoring Agent
will not be liable for any action taken by it under or in connection with
any Transaction Document unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party (other than the Collateral Monitoring Agent) may take any
proceedings against any officer, employee or agent of the Collateral
Monitoring Agent in respect of any claim it might have against the
Collateral Monitoring Agent or in respect of any act or omission of any
kind by that officer, employee or agent in relation to any Transaction
Document and any officer, employee or agent of the Collateral Monitoring
Agent may rely on and have the right to enforce this Clause pursuant to the
Contracts (Rights of Third Parties) Act 1999.
(c) Nothing in this Agreement shall oblige the Collateral Monitoring Agent to
carry out any "know your customer" or other checks in relation to any
person on behalf of any Lender or Noteholder and each Lender and Noteholder
confirms to the Collateral Monitoring Agent that it is solely responsible
for any such checks it is
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required to carry out and that it may not rely on any statement in relation
to such checks made by the Collateral Monitoring Agent.
INDEMNITY TO THE COLLATERAL MONITORING AGENT
10.9 Each Lender and Noteholder shall indemnify the Collateral Monitoring Agent,
within three Business Days of demand, against that Lender and Noteholder's
Commitment Proportion of any cost, loss or liability incurred by the Collateral
Monitoring Agent (otherwise than by reason of the Collateral Monitoring Agent's
gross negligence or wilful misconduct) in acting as Collateral Monitoring Agent
under the Transaction Documents (unless the Collateral Monitoring Agent has been
reimbursed by the Master Purchaser, a Seller, a Servicer or the Parent pursuant
to a Transaction Document).
RESIGNATION OF THE COLLATERAL MONITORING AGENT
10.10 (a) The Collateral Monitoring Agent may resign and appoint one of its
Affiliates as successor by giving notice to the Lenders, the Noteholders,
the Security Trustee and the Master Purchaser.
(b) Alternatively the Collateral Monitoring Agent may resign by giving notice
to the Lenders, the Noteholders, the Security Trustee and the Master
Purchaser, in which case the Majority Lenders (after consultation with the
Master Purchaser) may appoint a successor Collateral Monitoring Agent.
(c) If the Majority Lenders have not appointed a successor Collateral
Monitoring Agent in accordance with paragraph (b) above within 30 days
after notice of resignation was given, the Collateral Monitoring Agent
(after consultation with the Issuer) may appoint a successor Collateral
Monitoring Agent.
(d) The retiring Collateral Monitoring Agent shall, at its own cost, make
available to the successor Collateral Monitoring Agent such documents and
records and provide such assistance as the successor Collateral Monitoring
Agent may reasonably request for the purposes of performing its functions
as Collateral Monitoring Agent under the Transaction Documents.
(e) The Collateral Monitoring Agent's resignation notice shall only take effect
upon the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Collateral Monitoring
Agent shall be discharged from any further obligation in respect of the
Transaction Documents but shall remain entitled to the benefit of this
Clause 10. Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if such
successor had been an original Party.
(g) After consultation with the Issuer, the Majority Lenders may, by notice to
the Collateral Monitoring Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Collateral Monitoring Agent shall
resign in accordance with paragraph (b) above.
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CONFIDENTIALITY
10.11 (a) In acting as Collateral Monitoring Agent for the Lenders and the
Noteholders, the Collateral Monitoring Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity
from any other of its divisions or departments.
(b) If information is received by another division or department of the
Collateral Monitoring Agent, it may be treated as confidential to that
division or department and the Collateral Monitoring Agent shall not be
deemed to have notice of it.
(c) Notwithstanding any other provision of any Transaction Document to the
contrary, the Collateral Monitoring Agent shall not be obliged to disclose
to any other person (i) any confidential information or (ii) any other
information if the disclosure would or might in its reasonable opinion
constitute a breach of any law or a breach of a fiduciary duty.
CREDIT APPRAISAL BY THE LENDERS AND NOTEHOLDERS
10.12 Each Lender and Noteholder confirms to the Collateral Monitoring Agent
that it has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Transaction Document including but not limited to:
(a) the financial condition, status and nature of each member of the Visteon
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of any
Transaction Document and any Encumbrances created thereby and any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document;
(c) whether that Lender or Noteholder has recourse, and the nature and extent
of that recourse, against any party or any of its respective assets under
or in connection with any Transaction Document or the transactions
contemplated by the Transaction Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Transaction Document;
(d) the adequacy, accuracy and/or completeness of any information provided by
any person under or in connection with any Transaction Document, the
transactions contemplated by the Transaction Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction Document; and
(e) the right or title of any person in or to, or the value or sufficiency of
any part of the Master Purchaser Secured Property, the priority of any of
the security interest granted pursuant to the Master Purchaser Security
Documents or any Account Control Agreement or the existence of any
Encumbrances affecting the Master Purchaser Secured Property or any of the
Deposit Accounts.
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11. FEES, COSTS, EXPENSES AND TAXATION
FEES
11.1 The Sellers shall on the Funding Date pay to the Joint Lead Arrangers, in
USD an arrangement, structuring and commitment fee in the amount specified in
the Citigroup Fee Letter together with all other costs and expenses (including
legal costs and expenses) referred to in the Commitment Letter (the FUNDING DATE
FEES AND EXPENSES). The Sellers, the Lenders, and the Master Purchaser each
agree that:
(a) the Lenders shall deduct from any Initial Subscription Price payable by it
on the Funding Date in accordance with the Variable Funding Agreement, and
retain, an amount equal to the Funding Date Fees and Expenses; and
(b) the Master Purchaser shall deduct from the Purchase Price payable by it on
the Funding Date in accordance with the Master Receivables Purchase and
Servicing Agreement an amount equal to the Funding Date Fees and Expenses,
and the net payments made in accordance with paragraphs (a) and (b) above shall
constitute satisfaction in full on the Funding Date of (i) the Lenders
obligation to pay Initial Subscription Price on the Funding Date, (ii) the
Master Purchaser's obligation to pay Initial Purchase Price on the Funding Date
and (iii) the Sellers' obligation to pay to the Joint Lead Arrangers the amount
of the Funding Date Fees and Expenses so deducted.
11.2 All invoices submitted to the Sellers under Clauses 11.1 or 11.5 shall be
in reasonable detail, provided that invoices with respect to any audits
performed pursuant to any of the Transaction Documents shall be in a form that
is consistent with market practice (and the Funding Agent will give the Sellers
prior notice of any quotes it receives as to the costs and expenses of such
audits).
11.3 If the Sellers do not pay any of the fees referred to in Clauses 11.1 or
11.5, the Master Purchaser hereby undertakes that it shall pay any such fees to
the Funding Agent, Noteholder or the applicable Lender (as the case may be) to
the extent that they have not been paid by the Sellers.
11.4 The Parent will pay to the Collateral Monitoring Agent for its own account
the Annual Collateral Monitoring Fee (as set out in the Citigroup Fee Letter).
Such fee shall be payable annually in advance on the Closing Date and thereafter
annually in advance on each anniversary of the Closing Date for so long as any
obligation of the Master Purchaser to any Finance Party shall remain outstanding
or any Lender or any Noteholder shall have any commitment under the Variable
Funding Agreement or any Note. In the event that the Parent fails to pay to the
Collateral Monitoring Agent any such fee when due, the Master Purchaser shall
upon demand from the Collateral Monitoring Agent pay the Annual Collateral
Monitoring Fee (as set out in the Citigroup Fee Letter) to the Collateral
Monitoring Agent to the extent not paid by the Parent.
COSTS AND EXPENSES
11.5 Without prejudice to the provisions of the other Transaction Documents, the
Sellers shall on demand pay by way of indemnity on a full after Tax basis all,
claims, liabilities, losses, damages suffered by and all costs, fees and
expenses (including legal expenses) incurred by (provided in the case of
paragraphs (a), (c) and (d) below such
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costs, fees and expenses are reasonably incurred) the Master Purchaser, each
Lender, each Noteholder, the Security Trustee, the Collateral Monitoring Agent,
the MP Cash Manager, the Master Purchaser Transaction Account Bank and the
Funding Agent in connection with:
(a) any variation, consent or approval, or any steps taken with a view to any
variation, consent or approval, in each case relating to or in connection
with any of the Transaction Documents or any related document which was
requested by or required by any Seller, any Servicer, the Parent or any
Subordinated VLN Facility Provider;
(b) the preservation or enforcement of, or any action taken to preserve or
enforce, any of their rights under any of the Transaction Documents or any
related documents;
(c) the exercise by the Master Purchaser, each Lender, the Security Trustee,
each Noteholder, the Collateral Monitoring Agent, or the Funding Agent of
its rights to monitor compliance by the Seller, the Servicer, the Parent or
any Subordinated VLN Facility Provider with its obligations under the
Transaction Documents; and
(d) any audit by any such party and/or any relevant auditors in relation to
transaction cash flows, the performance of the Purchased Receivables,
Collections and procedures relating to Collections,
and (for the avoidance of doubt) the Sellers shall pay to the Master Purchaser,
each Lender, the Security Trustee, each Noteholder, the Collateral Monitoring
Agent, the MP Cash Manager, the Master Purchaser Transaction Account Bank and
the Funding Agent, as appropriate, such amount as shall represent any value
added tax, sales tax, purchase tax or other similar taxes or duties associated
with such costs, fees and expenses (if any) howsoever charged to, or suffered
by, the Master Purchaser, each Lender, the Security Trustee, each Noteholder,
the Collateral Monitoring Agent, the MP Cash Manager, the Master Purchaser
Transaction Account Bank and the Funding Agent (other than any Tax on the net
income of the Master Purchaser, each Lender, the Security Trustee, each
Noteholder, the Collateral Monitoring Agent, the MP Cash Manager, the Master
Purchaser Transaction Account Bank or the Funding Agent).
DUTIES AND TAXES
11.6 Without prejudice to the provisions of the other Transaction Documents, the
Sellers shall pay any stamp, documentary, transfer, excise, registration, filing
and other similar duties, levies, fees or Taxes to which:
(a) any of the Transaction Documents or any related documents; or
(b) any purchase of Receivables under the Master Receivables Purchase and
Servicing Agreement; or
(c) any transaction contemplated under the Transaction Documents and the
related documents including the assignment, release, resale or
re-assignment of any Receivable; or
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(d) the enforcement of the rights of the Master Purchaser, each Lender, the
Security Trustee, each Noteholder, the Collateral Monitoring Agent, and the
Funding Agent,
may be subject or give rise and the Sellers shall fully indemnify the Master
Purchaser, each Lender, the Security Trustee, each Noteholder and the Funding
Agent, on an after Tax basis, from and against any losses or liabilities which
any of them may properly incur or otherwise suffer as a result of any delay in
paying or omission to pay such duties, levies, fees or taxes (other than any Tax
on the net income of the Master Purchaser, each Lender, the Security Trustee,
each Noteholder and the Funding Agent).
VALUE ADDED AND SALES TAX
11.7 (a) Any amounts stated in any Transaction Document to be payable, or
payable in connection with any Transaction Document, by the Seller, the
Servicer, the Parent or the Subordinated VLN Facility Provider are
exclusive of value added tax, sales tax, purchase tax or other similar
taxes or duties and accordingly, to the extent that any such taxes arise in
respect of such payments, the Seller, the Servicer, the Parent or the
Subordinated VLN Facility Provider (as the case may be) shall, in addition,
pay any amount properly charged in respect of any such taxes or duties.
(b) Any amounts stated in any Transaction Document to be payable by the Master
Purchaser, any Lender, the Security Trustee, the Collateral Monitoring
Agent, the MP Cash Manager, the Master Purchaser Transaction Account Bank,
the Funding Agent and any Noteholder are unless otherwise expressly
provided in any Transaction Document inclusive of value added tax, sales
tax, purchase tax or other similar taxes or duties.
GROSSING-UP
11.8 (a) All payments made by each Seller, each Servicer, the Parent or each
Subordinated VLN Facility Provider to the Master Purchaser, each Lender,
the Security Trustee, each Noteholder and the Funding Agent under or in
connection with any Transaction Document shall be made in full without any
deduction or withholding in respect of Taxes (or otherwise) unless the
deduction or withholding is required by law in which event the Seller, the
Servicer, the Parent or the Subordinated VLN Facility Provider shall:
(i) ensure that the deduction or withholding does not exceed the
minimum amount legally required; and
(ii) forthwith pay to the Master Purchaser, the relevant Lender, the
Security Trustee, the relevant Noteholder and/or, as the case may
be, the Funding Agent such additional amount (other than any Tax
on the net profit of the Master Purchaser, the relevant Lender,
the Security Trustee, the relevant Noteholder or the Funding
Agent) so that the net amount received by the Master Purchaser,
the relevant Lender, the Security Trustee, the relevant
Noteholder or the Funding Agent as the case may be, will equal
the full amount which would have been received by it had no such
deduction or withholding been made.
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(b) The Seller hereby undertakes to indemnify the Master Purchaser, each
Lender, the Security Trustee and each Noteholder, in respect of any
withholding or deduction on account of Tax on the payment of any amount due
in respect of any Purchased Receivable or otherwise due under any
Transaction Document such that the Master Purchaser, each Lender, the
Security Trustee and each Noteholder, as the case may be, receives the same
amount that it would have received had there been no such withholding or
deduction.
(c) All payments made to the Seller, the Servicer, the Parent or the
Subordinated VLN Facility Provider by the Master Purchaser, any Lender, any
Noteholder or, as the case may be, the Security Trustee or the Funding
Agent under or in connection with any Transaction Document shall be made in
full without any deduction or withholding in respect of Taxes (or
otherwise) unless the deduction or withholding is required by law in which
event the Master Purchaser, the relevant Lender, Noteholder or the Security
Trustee or the Funding Agent, as the case may be, shall ensure that the
deduction or withholding does not exceed the minimum amount legally
required. For the avoidance of doubt, save as otherwise expressly provided
in any Transaction Document none of the Master Purchaser, any Lender, any
Noteholder or the Security Trustee or the Funding Agent shall be obliged to
gross up any such payment following any such deduction or withholding.
TAX CREDITS
11.9 If any of the Seller, the Servicer, the Parent or the Subordinated VLN
Facility Provider pays any additional amount (an ADDITIONAL PAYMENT) under
Clause 11.8 and the Master Purchaser, a Lender, the Security Trustee, a
Noteholder or the Funding Agent, as the case may be, effectively obtains a
refund of Tax or credit against Tax on its overall net income by reason of that
Additional Payment (a TAX CREDIT) and the Master Purchaser, the relevant Lender,
the relevant Noteholder, the Security Trustee or the Funding Agent, as the case
may be, is able to identify such Tax Credit as being attributable to such
Additional Payment, then the Master Purchaser, the relevant Lender, the relevant
Noteholder, the Security Trustee or the Funding Agent, as the case may be, shall
reimburse the Seller, the Servicer, the Parent or the Subordinated VLN Facility
Provider (as the case may be) such amount as the Master Purchaser, the relevant
Lender, the relevant Noteholder, the Security Trustee or the Funding Agent, as
the case may be, shall determine to be the proportion of such Tax Credit as will
leave it, after that reimbursement, in no better or worse position than it would
have been in if that Additional Payment had not been required. The Master
Purchaser, the relevant Lender, the relevant Noteholder or the Funding Agent, as
the case may be, shall use reasonable efforts to claim any Tax Credit and, if it
does so claim, shall have absolute discretion as to the extent, order and manner
in which it does so but shall in no circumstances be liable to the Seller, the
Servicer, the Parent or the Subordinated VLN Facility Provider for not doing so.
AFTER TAX AMOUNT
11.10 In the event that any taxing authority seeks to charge to Tax any sum paid
to the Master Purchaser, a Lender, a Noteholder, the Security Trustee or the
Funding Agent as a result of the indemnities contained herein then the amount so
payable shall be grossed up by such amount as will ensure that after payment of
the Tax so charged (and taking
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account of the Tax effect of any loss giving rise to the right to such an
indemnity) there shall be left a sum equal to the amount that would otherwise be
payable under such indemnity or obligation.
12. WAIVERS; REMEDIES CUMULATIVE
12.1 No failure or delay by any party hereto in exercising any right, power or
privilege under any Transaction Document to which it is a party or available at
law shall impair such right, power or remedy or operate as a waiver thereof. The
single or partial exercise of any right, power or remedy under this Deed or any
Transaction Document to which it is a party or at law shall not preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy under this Deed or any Transaction Document to which it is a party or at
law.
12.2 The rights of any party to any Transaction Document shall not be capable of
being waived otherwise than by an express waiver in writing or by a waiver in
such other form as may be agreed by the parties to the relevant Transaction
Document for the purposes of minimising or avoiding liability to stamp tax.
12.3 The rights, powers and remedies provided in this Deed and any Transaction
Document to which it is a party are cumulative and may be exercised as often as
they are considered appropriate and are in addition to any rights and remedies
provided by law.
13. MODIFICATION AND WAIVER
13.1 Subject to Clauses 13.2, 13.3 and 13.5 no amendment, modification or
variation of any or all of the Transaction Documents shall be effective unless
it is in writing and signed by or on behalf of each of the parties to the
relevant Transaction Document to be so modified or varied or initialled for
identification on behalf of such parties or in such other form as may be agreed
by the parties to the relevant Transaction Document for the purposes of
minimising or avoiding any liability to stamp tax.
13.2 The Funding Agent, the Collateral Monitoring Agent and the Security Trustee
are each hereby authorised and instructed by each of the Lenders and the
Noteholders to consent and agree to any amendment, modification or variation of
any or all of the Transaction Documents or to any waiver of any provision of a
Transaction Document:
(a) if such amendment, modification, variation or waiver is of a minor or
technical nature where the Funding Agent, the Collateral Monitoring Agent
or the Security Trustee (as applicable) is satisfied that such amendment,
modification, variation or waiver would not be materially prejudicial to
the interests of the Lenders and the Noteholders;
(b) if such amendment, modification, variation or waiver relates to a Lender
Reserved Matter, where such amendment, modification, variation or waiver
has been consented to in writing by each Lender affected by such Lender
Reserved Matter (with each of the Lender Reserved Matters listed at items
(d), (e), (f), (g) and (h) of the definition thereof being deemed to affect
all Lenders);
(c) if such amendment, modification, variation or waiver does not relate to a
Lender Reserved Matter but relates to any matters involving a variation or
amendment to the calculation or definition of the Net Receivables Pool
Balance or the Adjusted
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Advance Rate Percentage, where such amendment, modification, variation or
waiver has been consented to in writing by Lenders, the sum of whose
Commitment Proportions is equal to or greater than 66 2/3 per cent.; and
(d) if such amendment, modification, variation or waiver is not of the type
referred to in paragraphs (a), (b) or (c) above, where such amendment,
modification, variation or waiver has been consent to in writing by the
Majority Lenders.
13.3 Each of the Lenders and the Noteholders hereby agree that they shall upon
request by any Seller, by the Parent, by the Master Purchaser or by the Funding
Agent execute and deliver such documents as are necessary or desirable to give
effect to any amendment, modification, variation or waiver which has been
consented and agreed to by the Collateral Monitoring Agent in accordance with
the provisions of Clause13.2.
13.4 If, in connection with any proposed modification, amendment, variation,
waiver or consent requiring the consent of "each Lender" or "each Lender
affected thereby," the consent of the Majority Lenders is obtained, but the
consent of other necessary Lenders is not obtained (any such Lender whose
consent is necessary but not obtained being referred to herein as a
NON-CONSENTING LENDER), then the Parent may elect to replace any such
Non-Consenting Lender as a Lender and a Noteholder pursuant to the Transaction
Documents, provided that, concurrently with such replacement, (i) another bank
or other entity which is reasonably satisfactory to the Parent and the Funding
Agent shall agree, as of such date, to purchase in full for cash at their
Principal Amount Outstanding together with any accrued by unpaid interest
thereon or fees or amounts payable to the Non-Consenting Lender in respect
thereof, the Notes held by the Non-Consenting Lender and to become a Lender and
Noteholder for all purposes under the Transaction Documents and to assume all
obligations of the Non-Consenting Lender to be terminated as of such date and to
comply with the requirements for transfer of the relevant Notes contained in the
Variable Funding Agreement and the Conditions, and (ii) the Parent and each
Seller shall pay to such Non-Consenting Lender in same day funds on the day of
such replacement an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Clause 7 had the Notes
of such Non-Consenting Lender been prepaid on such date rather than sold to the
replacement Lender.
13.5 The Collateral Monitoring Agent and the Security Trustee may upon request
by the Parent agree, without either recourse to, or the consent of, the Lenders
or the Noteholders (or in the case of the Security Trustee any other Master
Purchaser Secured Creditor), to such amendments, modifications and/or variations
to the Transaction Documents as are necessary or desirable to include (subject
always to their compliance with the Eligibility Criteria) as Eligible
Receivables, Receivables owed by Obligors resident in Sweden or in a state of
the United States of America or which are governed by the laws of Sweden or the
laws of a state of the United States of America, as the case may be, provided
that:
(a) in respect of a Receivable owed by an Obligor resident in Sweden or which
is governed by Swedish law:
(i) notice of the assignment to the Master Purchaser or FCC Visteon
(as applicable) in a form satisfactory to the Collateral
Monitoring Agent has been given to the relevant Obligor;
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(ii) a legal opinion in form and substance and from counsel
satisfactory to the Collateral Monitoring Agent (and, in respect
of matters directly affecting the Security Trustee, the Security
Trustee) has been received, addressed to each of the Security
Trustee, the Funding Agent and the Lenders, confirming that as a
matter of Swedish law, and subject only to customary assumptions
and qualifications, the assignment of such Receivable pursuant to
the Master Receivables Purchaser and Servicing Agreement or (if
applicable) the FCC Master French Receivables Transfer and
Servicing Agreement is valid and enforceable and would be
recognised and enforced by the courts of Sweden and confirming
such other matters as the Collateral Monitoring Agent may
reasonably require; and
(iii) such amendments to the Transaction Documents are made as the
Collateral Monitoring Agent determines are necessary or desirable
to ensure that the Master Purchaser or FCC Visteon (as
applicable) has good title to or legal ownership of such
Receivable as a matter of the laws of all applicable
jurisdictions; and
(b) in respect of a Receivable owed by an Obligor resident in a state of the
United Sates of America or which is governed by the law of a state of the
United States of America:
(i) a legal opinion in form and substance and from counsel
satisfactory to the Collateral Monitoring Agent (and, in respect
of matters directly affecting the Security Trustee, the Security
Trustee) has been received, addressed to each of the Security
Trustee, the Funding Agent and the Lenders confirming that as a
matter of the law of the applicable state of the United States of
America, and subject only to customary assumptions and
qualifications, the assignment of such Receivable pursuant to the
Master Receivables Purchase and Servicing Agreement or (if
applicable) the FCC Master French Receivables Transfer and
Servicing Agreement is valid and enforceable and would be
recognised and enforced by the courts of the relevant state of
the United States of America and confirming such other matters as
the Collateral Monitoring Agent may reasonably require;
(ii) such amendment to the Transaction Documents are made as the
Collateral Monitoring Agent determines are necessary or desirable
to ensure that the Master Purchaser or FCC Visteon (as
applicable) has good title to or legal ownership of such
Receivable as a matter of the laws of all applicable
jurisdictions; and
(iii) applicable UCC Financing Statements have been filed in the
District of Columbia in respect of the Seller of such Receivable
and in respect of the Master Purchaser.
13.6 Neither the Collateral Monitoring Agent nor the Security Trustee shall be
liable to any Lender or Noteholder or the Master Purchaser or FCC Visteon (as
applicable) or any Master Purchaser Secured Creditor or to any other person for
any consent given, or any act (or omission) in accordance with the provisions of
Clause 13.5.
13.7 The Master Purchaser undertakes to the Parent that it shall not agree to
any amendment, variation or modification to the terms of the Corporate
Administration
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Agreement or the Cash Management Agreement without the prior written consent of
the Parent.
14. ENTIRE AGREEMENT
Each and every Transaction Document sets out the entire agreement and
understanding between the parties in respect of the subject matter of the
agreements contained therein and supersedes any previous agreement between the
parties relating to the subject matter therein. It is agreed that:
(a) no party has entered into any Transaction Document in reliance upon any
representation, warranty or undertaking of any other party which is not
expressly set out or referred to in any such Transaction Document;
(b) except for breach of an express representation or warranty under any
Transaction Document no party shall have any claim or remedy under any of
the Transaction Documents in respect of misrepresentation (whether
negligent or otherwise, and whether made prior to or at the time of
execution of the Transaction Documents) or untrue statement made by any
other party;
(c) this Clause shall not exclude any liability for fraudulent
misrepresentation.
15. NO LIABILITY
15.1 No recourse under any obligation, covenant, or agreement of any party
(acting in any capacity whatsoever) contained in any Transaction Document shall
be had against any shareholder, officer or director of the Master Purchaser, any
Lender, any Noteholder, the Security Trustee, the Collateral Monitoring Agent,
the MP Cash Manager, the Master Purchaser Transaction Account Bank or the
Funding Agent as such, by the enforcement of any assessment or by any
proceeding, by virtue of any statute or otherwise, it being expressly agreed and
understood that each Transaction Document is a corporate obligation of the
relevant party and no personal liability shall attach to or be incurred by the
shareholders, officers, agents, employees or directors of any party as such, or
any of them, under or by reason of any of the obligations, covenants or
agreements contained in any Transaction Document, or implied therefore, and that
any and all personal liability for breaches by such party of any such
obligations, covenants or agreements, either at law or by statute or
constitution, of every such shareholder, officer, agent, employee or director is
hereby expressly waived by the other parties as a condition of and consideration
for the execution of this Deed.
15.2 Each Party hereto agrees and acknowledges that they shall not assert, and
each Party hereby waives, any claim against any Finance Party for special,
indirect, consequential or punitive damages arising out of, in connection with,
or as a result of any Transaction Document or the transaction contemplated
thereby.
16. NO PETITION
16.1 Each party hereto, other than the Issuer and the Security Trustee, hereby
undertakes to the Issuer and the Security Trustee that it shall not, nor shall
any party on its behalf, at any time institute against, or join any person in
instituting against the Master Purchaser or any or all of the revenues and
assets of such party any bankruptcy, winding up, re-organisation, arrangement,
insolvency or liquidation proceeding or other
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proceeding under any similar law nor petition for the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator, sequestrator or
similar officer of it nor participate in any ex parte proceedings.
17. LIMITED RECOURSE
17.1 Notwithstanding any other provision of this Deed and the other Transaction
Documents, each Party agrees and acknowledges with the Issuer that, save as
otherwise provided for in any Transaction Document:
(a) it will only have recourse in respect of any amount, claim or obligation
due or owing to it by the Issuer (the CLAIMS) only to the extent of
available funds pursuant to the Master Purchaser Priority of Payments as
applicable and subject to the provisos in such Clauses, which shall be
applied by the Security Trustee, subject to and in accordance with the
terms thereof and after all other prior ranking claims in respect thereof
have been satisfied and discharged in full;
(b) following the application of funds following enforcement of the security
interests created under the Master Purchaser Deed of Charge, subject to and
in accordance with the Master Purchaser Post-Enforcement Priority of
Payments, the Issuer will have no assets available for payment of its
obligations under the Master Purchaser Deed of Charge and the other
Transaction Documents other than as provided for pursuant to the Master
Purchaser Deed of Charge, and that any Claims will accordingly be
extinguished to the extent of any shortfall; and
(c) the obligations of the Master Purchaser under the Master Purchaser Deed of
Charge and the other Transaction Documents will not be obligations or
responsibilities of, or guaranteed by, any other person or entity.
18. CONDITIONS PRECEDENT
18.1 The Transaction Documents shall not come into effect until the Collateral
Monitoring Agent is satisfied that the conditions precedent specified in Part A
of Schedule 3 has been satisfied and/or delivered (as applicable) to the
Collateral Monitoring Agent each in a manner or in a form and substance as is
satisfactory to the Collateral Monitoring Agent.
18.2 Each of the Master Purchaser Secured Creditors hereby consents to the entry
into after the Closing Date of the FCC Units Subscription Agreement together
with each of the other FCC Documents to which it is expressed to be a party
provided that (i) the terms of such documents provide that the obligations of
the Master Purchaser under such FCC Documents shall not come into effect until
the Collateral Monitoring Agent is satisfied that each of the conditions
precedent specified in Part C of Schedule 3 have been satisfied or delivered (as
applicable) and (ii) the Lenders have been provided with copies of the FCC
Documents that are to entered into on or prior to the French Programme
Commencement Date substantially in final form by no later than the date falling
5 Business Days prior to the date upon which such FCC Documents are to be signed
or executed.
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19. MISCELLANEOUS PROVISIONS
EVIDENCE OF INDEBTEDNESS
19.1 In any proceeding, action or claim relating to any Transaction Document a
statement as to any amount due which is certified as being correct by an officer
of a Lender shall, unless otherwise provided in the Transaction Document or this
Deed, or in the case of manifest error, be prima facie evidence that such amount
is in fact due and payable.
SEVERABILITY
19.2 Any provision of any Transaction Document or this Deed which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, each of the parties hereto hereby waives any provision of law
but only to the extent permitted by law which renders any provision of any
Transaction Document prohibited or unenforceable in any respect.
ASSIGNABILITY
19.3 Save as specifically provided in any Transaction Document, none of the
Sellers, the Servicers, the Parent or the Subordinated VLN Facility Provider
shall be entitled to assign any of its rights or transfer any of its obligations
under any of the Transaction Documents without the prior written consent of the
Collateral Monitoring Agent, the Parent and of each Lender (and any attempted
assignment or transfer by any such party shall be null and void).
19.4 Prior to the occurrence of a Termination Event, any Lender may (without the
prior written consent of any party) assign its rights and/or transfer its
obligations under the Transaction Documents if such assignment is made in
accordance with any express provisions of such Transaction Document and is to:
(a) any Affiliate of that Lender; or
(b) any other Lender or any Affiliate of another Lender; or
(c) any other bank or financial institution approved in writing by the Parent
(such approval not to be unreasonably withheld or delayed).
19.5 Following the occurrence of a Termination Event which has not been waived,
any Lender may (without the prior written consent of any party) assign its
rights and/or transfer its obligations under the Transaction Documents to any
person provided that any such arrangement or transfer shall not increase the
Master Purchaser's cost of funding and provided that such assignment and/or
transfer is made in accordance with any express provisions of such Transaction
Document.
19.6 Each assignor or transferor shall notify the Funding Agent and the Parent
of any assignment or transfer under Clause 19.4 and/or Clause19.5. Each assignor
or transferor may, in connection with any such assignment or transfer, disclose
to the assignee or
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transferee or potential assignee or transferee any information relating to the
Sellers, the Servicers, the Parent or the Subordinated VLN Facility Provider,
including the Receivables, furnished to such assignor or transferor by or on
behalf of the Sellers, the Servicers, the Parent or the Subordinated VLN
Facility Provider, provided that, prior to any such disclosure, the assignee or
transferee or potential assignee or transferee agrees to observe the
confidentiality of such information which is confidential in accordance with
Clause 23.
NO SET-OFF
19.7 Except as otherwise provided in the Transaction Documents and subject to
Clause 19.8, all payments required to be made under the Transaction Documents
shall be calculated without reference to any set-off or counterclaim and shall
be made free and clear of and without any deduction for or on account of any
set-off or counterclaim, save as provided by mandatory provisions of law.
19.8 The Master Purchaser, each Lender, the Funding Agent and the Security
Trustee may (in addition to any other rights it may have) at any time after a
Termination Event or Potential Termination Event has occurred and is subsisting,
set-off, appropriate and apply any deposits and any other indebtedness held or
owing by such Person (acting in its capacity as such) to, or for the account of,
a Seller, a Servicer, the Parent or the Subordinated VLN Facility Provider
against any amount owing by any Seller, any Servicer, the Parent or any
Subordinated VLN Facility Provider, as the case may be, to such Person.
RELEASE FROM GERMAN LAW RESTRICTIONS
19.9 Any party to this Agreement organised under German law hereby releases any
other party to any Transaction Document to which it grants any power of attorney
or other authorisation under any Transaction Document from any restriction of
double representation or self-dealing under any applicable law (in particular
under section 181 of the German Civil Code (Burgerliches Gesetzbuch)).
20. INCREASE OF VARIABLE FUNDING FACILITY LIMIT
20.1 At any time during the Securitisation Availability Period, the Parent may,
by written notice (a FACILITY INCREASE NOTICE) to the Funding Agent (who shall
promptly deliver a copy to each of the Lenders) and the Collateral Monitoring
Agent request an increase to the Variable Funding Facility Limit (the amount of
any such increase being an INCREMENTAL FACILITY AMOUNT) provided that both (A)
at the time of such request and (B) upon the date upon which such increase is to
come into effect:
(a) no Master Purchaser Event of Default, Termination Event or Potential
Termination Event shall have occurred and not been waived;
(b) the increase would not result in the Variable Funding Facility Limit being
in excess of USD350,000,000.
Such Facility Increase Notice shall set out the requested Incremental Facility
Amount and shall offer each Lender the opportunity to increase their respective
Maximum Commitment Amount so as to provide a commitment in respect of a portion
of the Incremental Facility Amount by giving written notice of their acceptance
of such offered
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increased Maximum Commitment Amount to the Collateral Monitoring Agent, the
Funding Agent and the Parent within a time period (the OFFER PERIOD) to be
specified in the Facility Increase Notice provided that no Lender will have any
obligation to so agree to an increase in their Maximum Commitment Amount. In the
event that at the end of the Offer Period, Lenders shall have agreed to increase
their respective Maximum Commitment Amounts by an aggregate amount less than the
Incremental Facility Amount requested by the Parent, the Parent may request that
the Variable Funding Facility Limit be increased by such lesser amount and/or
shall have the right to arrange for one or more banks or financial institutions
approved by the Collateral Monitoring Agent and the Funding Agent (such consent
not to be unreasonably withheld or delayed) who are persons to whom Notes may be
transferred in accordance with Condition 2) (any such bank or other financial
institution being an ADDITIONAL LENDER) to agree to extend a commitment to
provide funding pursuant to the Variable Funding Agreement with a Maximum
Commitment Amount applicable to such Additional Lender being a portion of the
amount by which the Incremented Facility Amount exceeds the aggregate amount by
which Lenders have agreed to increase their respective Maximum Commitment
Amounts in accordance with this Clause 20.1.
20.2 The increase in any Lender's Maximum Commitment Amount agreed to pursuant
to Clause 20.1 and the corresponding increase in the Variable Funding Facility
Limit shall be conditional, and take effect, upon the execution by each of the
Lenders who have agreed to increase their Maximum Commitment Amounts, the
Collateral Monitoring Agent, the Security Trustee, the Funding Agent, the Parent
and the Master Purchaser of an additional commitment agreement in a form
satisfactory to the Collateral Monitoring Agent and the Security Trustee and the
agreed commitment of any Additional Lender and the corresponding increase in the
Variable Funding Facility Limit shall be conditional, and take effect, upon the
execution by that Additional Lender of deeds of adherence to each of this Deed
(in or substantially in the form set out in Schedule 6) and the Master Purchaser
Deed of Charge (in or substantially in the form set out in Schedule 2 to the
Master Purchaser Deed of Charge) and the execution by such Lender of a
Noteholder Accession Letter in or substantially in the form set out in Schedule
5 to the Variable Funding Agreement.
20.3 Immediately following any increase in the Variable Funding Facility Limit,
each Lender and Noteholder's respective Commitment Proportion shall be
recalculated as the fraction (expressed as a percentage) calculated by dividing
(A) that Lender or Noteholder's Maximum Commitment Amount (taking into account
any increase in such amount agreed to in accordance with this Clause 20) by (B)
the Variable Funding Facility Limit (taking into account any increase in such
amount agreed to in accordance with this Clause 20).
20.4 Upon any Additional Lender becoming party to the Variable Funding Agreement
in accordance with this Clause 20, the Master Purchaser agrees that it shall on
the Settlement Date following the date upon which the Additional Lender becomes
party to each of the Variable Funding Agreement, the Master Purchaser Deed of
Charge and the Framework Deed it shall issue to such Additional Lender a Note in
each Agreed Currency each with a par value equal to the Further Subscription
Price stated to be payable by that Additional Lender in the Further Funding
Request relating to such Settlement Date calculated by reference to that
Additional Lender's Commitment Proportion of the total funding to be made
available in that Agreed Currency and the Commitment Proportion of all other
Lenders (as recalculated pursuant to Clause 20.3) provided that the Further
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Subscription Price so payable by any Additional Lender shall not be less than
USD1,000 in respect of the USD Note issued to that Additional Lender, EUR1,000
in respect of the EUR Note issued to that Additional Lender and GBP1,000 in
respect of the GBP Note issued to that Additional Lender. The Notes issued
pursuant to this Clause 20.4 shall rank pari passu with and have the same terms
as all other Notes issued by the Issuer pursuant to the Variable Funding
Agreement.
20.5 In order to induce any Additional Lenders to provide a commitment to fund
or to induce any Lenders to increase their respective Maximum Commitment Amount
in accordance with this Clause 20, the Parent may give notice to the Funding
Agent, the Collateral Monitoring Agent, the Master Purchaser (copied to the
Lenders) of its intention to increase the interest rate applicable to the Notes
which notice shall specify the rate of interest that shall accrue in respect of
Notes in each Agreed Currency and with effect from the relevant effective date
set out in any such notice, the Reference Rate for all Notes shall be such
increased for Notes of the relevant agreed Currency rate as set out in such
notice.
20.6 All costs, fees (including legal fees) and expenses of any party in
connection with any increase in the Variable Funding Facility Limit made in
accordance with this Clause 20 (including without limitation in connection with
the preparation of any additional commitment agreement) shall be for the account
of the Parent.
20.7 For the avoidance of doubt, nothing in this Clause 20 shall result in any
Lender having an obligation to make a payment in respect of Initial Subscription
Price or Further Subscription Price in circumstances where the conditions set
out in Clause 4.2 of the Variable Funding Agreement are not satisfied on the
date on which the payment of the Initial Subscription Price or the Further
Subscription Price is to be made.
20.8 Each of the Master Purchaser, the Collateral Monitoring Agent, the Funding
Agent, the Parent and the Security Trustee agree that they shall execute and
deliver such documents as are necessary to give effect to any increase in the
Variable Funding Facility Limit, any increase in any Lender's Maximum Commitment
Amount and/or the adherence of any Additional Lender to the Variable Funding
Agreement, the Master Purchaser Deed of Charge and/or the Framework Deed in each
case in accordance with this Clause 20. Each of the Lenders (in respect of the
Collateral Monitoring Agent and the Funding Agent) and each of the Master
Purchaser Secured Creditors (in respect of the Security Trustee and the Master
Purchaser) consent to and authorise the Collateral Monitoring Agent, the Funding
Agent, the Security Trustee and the Master Purchaser to enter into such
documentation without recourse to such Lender or Master Purchaser Secured
Creditor (as the case may be) and none of the Master Purchaser, the Collateral
Monitoring Agent, the Funding Agent nor the Security Trustee shall be liable to
any Lender, Noteholder or Master Purchaser Secured Creditor or to any other
person for any consent given or any act (or omission) in accordance with this
Clause 20.
21. CASH FLOW MANAGEMENT
Each of the Sellers, the Subordinated VLN Facility Provider, the Master
Purchaser and the Security Trustee hereby agree that on any day during the
Securitisation Availability Period:
(a) a Seller may apply sums then due to it in a particular Agreed Currency (the
APPLICABLE CURRENCY) from the Master Purchaser in respect of Purchase Price
Page 80
against amounts to be paid by it in the Applicable Currency on such day
(whether by advance of a loan, repayment of amounts owed by the Seller to
the Subordinated VLN Facility Provider or otherwise);
(b) if a Seller, on any day, elects to exercise its right under Clause 1(a) by
giving (or by the Master Servicer giving on its behalf) notice thereof in
advance to the Master Purchaser, the Security Trustee, the MP Cash Manager
and the Subordinated VLN Facility Provider, the Subordinated VLN Facility
Provider shall apply the amounts referred to in (a) above to be paid to it
by that Seller on such day against any Further Subordinated Advance to be
made by it in the Applicable Currency on such day to the Master Purchaser
pursuant to Clause 5 of the Subordinated VLN Facility Agreement; and
(c) upon exercise of the right of a Seller under paragraph (a) above, the
obligation of the Master Purchaser to pay any amount of Purchase Price due
to that Seller on such day in the Applicable Currency pursuant to the
Master Receivables Purchase and Servicing Agreement shall be deemed to be
satisfied to the extent of an amount equal to the amount payable on that
day by the Seller to the Subordinated VLN Facility Provider without any
requirement for cash movements from the Subordinated VLN Facility Provider
to the Master Purchaser, from the Master Purchaser to the relevant Seller
and from the relevant Seller to the Subordinated VLN Facility Provider.
22. COUNTERPARTS
Each of the Transaction Documents, including this Deed, can to the extent
permitted by the governing law of such Transaction Document be executed in any
number of counterparts and by the parties to it on separate counterparts, each
of which shall be an original but all of which together shall constitute one and
the same instrument.
23. CONFIDENTIALITY
None of the parties shall, and they shall procure that none of their agents or
representatives shall, during the continuance of any of the Transaction
Documents or after the termination of any of them, disclose to any person, firm
or company whatsoever any information relating to the business, finances or
other matters of a confidential nature of any other party to this Deed of which
it may in the course of its duties under this Deed or any Transaction Document
or otherwise have become possessed and all the parties shall use all reasonable
endeavours to prevent any such disclosure, provided however that the provisions
of this Clause 23 shall not apply:
(a) to the disclosure of any information which is expressly permitted or
required by the Transaction Documents to any person who is a party to any
of the Transaction Documents or is required in relation to the transactions
envisaged by the Transaction Documents;
(b) to the disclosure of any information already known to the recipient
otherwise than as a result of entering into or negotiating any of the
Transaction Documents provided that the recipient has not, to the knowledge
of the party disclosing information, acquired such information in breach of
any contractual obligation of confidentiality;
Page 81
(c) to the disclosure of any information which is or becomes public knowledge
otherwise than as a result of the conduct of the recipient;
(d) to the extent that the recipient is required to disclose the same pursuant
to any law or order of any court or pursuant to any direction, request or
requirement (whether or not having the force of law) of any central bank or
any governmental or other regulatory authority (including any official bank
examiners or regulators) or stock exchanges;
(e) to the extent that the recipient needs to disclose the same for the
protection or enforcement of any of its rights under any of the Transaction
Documents;
(f) to the disclosure of any information to any provider of liquidity, credit
enhancement, hedging or other facilities (subject to them being informed of
the confidential nature of such information and being subject to
confidentiality restrictions consistent with this Clause 23);
(g) to the disclosure of any information to professional advisers or auditors
who receive the same under a duty of confidentiality;
(h) to the disclosure of any information with the written consent of the
parties hereto in form and substance satisfactory to the Funding Agent;
(i) to the disclosure of any information reasonably disclosed to a prospective
Lender, or any prospective permitted assignee or transferee of a party's
rights or obligations under any Transaction Document (provided it is
disclosed on the basis that the recipient will hold it confidential and
will not use it in the course of its business); and
(j) to the disclosure of information to any and all Persons by the Seller, the
Parent and the Servicer relating to the U.S. tax treatment and U.S. tax
structure of the transactions contemplated by the Transaction Documents.
24. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
In relation to each Transaction Document governed by English law, a person who
is not a party to such Transaction Document shall, unless otherwise expressly
provided in a Transaction Document, have no right under the Contracts (Rights of
Third Parties) Act 1999 to enforce any of the terms thereof.
25. SECURITY TRUSTEE PARTY TO TRANSACTION DOCUMENTS
BETTER PRESERVATION AND ENFORCEMENT OF RIGHTS
25.1 Except where any Transaction Document provides otherwise, the Security
Trustee has agreed to become a party to each Transaction Document to which it is
a party for the better preservation and enforcement of its rights under such
Transaction Document and shall not assume any liabilities or obligations under
any Transaction Document unless such obligation or liability is expressly
assumed by the Security Trustee in such Transaction Document.
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SECURITY TRUSTEE HAS NO RESPONSIBILITY
25.2 The Security Trustee shall not have any responsibility for any of the
obligations of the other Transaction Parties and the other Transaction Parties
acknowledge that the Security Trustee has no such responsibility and that the
Security Trustee is entitled to the protections contained in and on the terms
set out in the Master Purchaser Deed of Charge.
REASONABLENESS
25.3 Any reference in any Transaction Document involving compliance by the
Security Trustee in the discharge of its powers, duties and discretions
contained in such Transaction Document with a test of reasonableness (including
without limitation any reference in any Transaction Document to costs, expenses
or fees being "reasonably incurred") shall be deemed to include a reference to a
requirement that such reasonableness shall be determined by reference solely to
the interests of such of the Master Purchaser Secured Creditors as are
determined by the Trustee in its discretion having regard to any relevant
conflict and priorities provisions in the Master Purchaser Deed of Charge;
MASTER PURCHASER DEED OF CHARGE GOVERNS SECURITY TRUSTEE
25.4 Each of the parties hereto agree that the exercise or performance or
non-exercise or non-performance of any of the trusts, powers, authorities,
duties, discretions or obligations of, or the giving of any consents by the
Security Trustee and the Security Trustee's liability in relation to the same
shall in the case of each Transaction Document to which it is a party be subject
to the detailed provisions of the Master Purchaser Deed of Charge and in the
event of any conflict, the provisions of the Master Purchaser Deed of Charge
shall prevail.
26. CHANGE OF SECURITY TRUSTEE
If there is an appointment of a successor Security Trustee in accordance with
the terms of the Master Purchaser Deed of Charge each of the Transaction Parties
shall execute such documents and take such action as the successor Security
Trustee and the outgoing Security Trustee may reasonably require for the
purposes of vesting in the successor Security Trustee, the benefit of the
Transaction Documents and the rights, powers and obligations of the Security
Trustee under the Transaction Documents, and releasing the outgoing Security
Trustee from its future obligations under the Transaction Documents.
27. TRUSTEE ACT
In relation to each Transaction Document governed by English law and creating or
purporting to create a trust or fiduciary relationship, the parties hereto agree
that to the fullest extent permitted by law, none of the provisions of the
Trustee Act 2000 shall apply to the trust or fiduciary relationship created by
such Transaction Document or to the role of the trustee or fiduciary in relation
to such trust or fiduciary relationship. The disapplication of the Trustee Act
2000 as provided by this Clause 27 shall constitute an exclusion of the
provisions of the Trustee Act 2000 for the purposes of that act.
Page 83
28. GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with, the laws of
England.
Page 84
[page intentionally left blank]
Page 85
IN WITNESS of which this Deed has been executed and delivered as a deed by the
parties to it on the date above mentioned.
THE PARENT
EXECUTED and DELIVERED as a ) BRIAN P. CASEY
DEED by VISTEON CORPORATION )
a company incorporated under the laws of )
the State of Delaware )
by BRIAN P. CASEY )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
Witness: JOHN GALLAGHER
Name: JOHN GALLAGHER
Address: 1850 N. MILDRED ST., DEARBORN, MI 48128
THE SUBORDINATED VLN FACILITY PROVIDER
EXECUTED and DELIVERED as a ) BRIAN P. CASEY
DEED by VISTEON NETHERLANDS )
FINANCE B.V. a company incorporated )
in The Netherlands by BRIAN P. CASEY )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
Witness: JOHN GALLAGHER
Name: JOHN GALLAGHER
Address: 1850 N. MILDRED ST., DEARBORN, MI 48128
Page 86
THE SELLERS AND THE SERVICERS
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by VISTEON DEUTSCHLAND GMBH )
a company incorporated in Germany )
by SAMRAD NAZER )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by VISTEON SYSTEMES )
INTERIEURS S.A.S. )
a company incorporated in France )
by SAMRAD NAZER )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by SAMRAD NAZER )
as duly authorised attorney )
for and on behalf of )
VISTEON UK LIMITED )
in the presence of: )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
Page 87
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by VISTEON ARDENNES )
INDUSTRIES S.A.S. )
a company incorporated in France )
by SAMRAD NAZER )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by VISTEON SISTEMAS )
INTERIORES ESPANA S.L. )
a company incorporated in Spain )
by SAMRAD NAZER )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
Page 88
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by CADIZ ELECTRONICA S.A. )
a company incorporated in Spain )
by SAMRAD NAZER )
being a person who in accordance with )
the laws of that territory, is acting under )
the authority of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
EXECUTED and DELIVERED as a ) SAMRAD NAZER
DEED by SAMRAD NAZER )
as duly authorised attorney )
for and on behalf of )
VISTEON PORTUGUESA LIMITED )
in the presence of: )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
Page 89
THE LENDERS AND NOTEHOLDERS
EXECUTED and DELIVERED as a DEED ) ROBIN WARD
by CITIBANK, N.A., a national banking )
association organised under the banking )
laws of the United States of America, acting by )
ROBIN WARD )
being a person who, in accordance with the laws )
of that territory, is acting under the authority )
of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
EXECUTED and DELIVERED as a DEED by UBS AG, ) MATTHEW JOLLY
LONDON BRANCH, a company incorporated under the )
laws of Switzerland, acting by MATTHEW JOLLY ) EXECUTIVE DIRECTOR
and ANDREW SANTACROCE )
being persons who, in accordance with the laws ) ANDREW SANTACROCE
of that territory, are acting under the )
authority of the company ) DIRECTOR
Page 90
EXECUTED and DELIVERED as a DEED by BNP PARIBAS, )
a company incorporated under the laws of France, ) FABIENNE DAULNE
acting by FABIENNE DAULNE AND HUBERT CHARVET )
being a person who, in accordance with the laws ) HUBERT CHARVET
of that territory, is acting under the authority )
of the company )
EXECUTED and DELIVERED as a DEED by BNP PARIBAS, )
DUBLIN BRANCH a company incorporated under the ) DEIRDRE GEOGHEGAN
laws of France, acting by DEIRDRE GEOGHEGAN AND )
PAUL OWENS ) HEAD OF OFFSHORE GROUP
being a person who, in accordance )
with the laws of that territory, is acting under ) PAUL OWENS
the authority of the company )
EXECUTED and DELIVERED as a DEED by )
JPMORGAN CHASE BANK, N.A., acting by ) ROBERT P. KELLAS
ROBERT P. KELLAS )
being a person who, in accordance with the laws ) VICE PRESIDENT
of the territory of its incorporation, is acting )
under the authority of the company )
Page 91
EXECUTED and DELIVERED as a DEED )
by BANK OF AMERICA, N.A., a company incorporated ) ROBERT J. LUND
under the laws of the United States of America, )
acting by )
ROBERT J. LUND )
being a person who, in accordance with the laws )
of that territory, is acting under the authority )
of the company )
EXECUTED and DELIVERED as a DEED )
by CREDIT SUISSE, acting by ) MARK E. GLEASON
MARK E. GLEASON AND RIANKA MOHAN )
being a person who, in accordance with the laws ) DIRECTOR
of the territory of its incorporation, is acting )
under the authority of the company ) RIANKA MOHAN
ASSOCIATE
EXECUTED and DELIVERED as a DEED )
by DEUTSCHE BANK AG LONDON a ) JAMIE PRATT
company incorporated under the laws of )
Germany, acting by JAMIE PRATT )
and CHUNG CHUI WAN )
being persons who, in accordance with the ) CHUNG CHUI WAN
of that territory, are acting under the )
laws authority of the company )
Page 92
EXECUTED and DELIVERED as a DEED )
by THE BANK OF NEW YORK, a ) DAVID CSATARI
company incorporated under the laws of New )
York, acting by ) VICE PRESIDENT
DAVID CSATARI )
being a person who, in accordance with the laws )
of that territory, is acting under the )
authority of the company )
EXECUTED and DELIVERED as a DEED )
by WACHOVIA CAPITAL FINANCE ) LAURA DIXON
CORPORATION (CENTRAL), acting by )
LAURA DIXON ) VICE PRESIDENT
being a person who, in accordance with the laws )
of the territory of its incorporation, is acting )
under the authority of the company )
EXECUTED and DELIVERED as a DEED )
by THE CIT GROUP/BUSINESS ) MANUEL BORGES
CREDIT, INC., acting by )
MANUEL BORGES ) VICE PRESIDENT
being a person who, in accordance with the laws )
of the territory of its incorporation, is acting )
under the authority of the company )
Page 93
THE MASTER PURCHASER AND THE ISSUER
SIGNED, SEALED and DELIVERED as a ) MARK FILER
DEED by VISTEON FINANCIAL )
CENTRE P.L.C. a company incorporated in )
Ireland, acting by )
MARK FILER )
being a person who, in accordance with the laws )
of that territory, is acting under the authority )
of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
THE FUNDING AGENT
EXECUTED and DELIVERED as a DEED ) MARIE VICTORIA
by ) TACARDON
MARIE VICTORIA TACARDON )
as duly authorised attorney for and on behalf )
of CITIBANK INTERNATIONAL PLC )
in the presence of )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
Page 94
THE COLLATERAL MONITORING AGENT
EXECUTED and DELIVERED as a DEED by CITICORP ) MARIE VICTORIA TACARDON
USA, INC., a company incorporated under the laws )
of the State of Delaware, acting by )
MARIE VICTORIA TACARDON )
being a person who, in accordance with the laws )
of that territory, is acting under the authority )
of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
THE SECURITY TRUSTEE
EXECUTED and DELIVERED as a DEED under the ) DEED
COMMON SEAL of THE LAW DEBENTURE TRUST )
CORPORATION P.L.C. in the presence of: )
Director: JULIAN MASON JEBB
Authorised Signatory: BILL ROWLAND
Page 95
THE MASTER PURCHASER TRANSACTION ACCOUNT BANK AND THE MP CASH MANAGER
EXECUTED and DELIVERED as a DEED ) ROBIN WARD
by CITIBANK, N.A. a national banking )
association organised under the banking laws )
of the United States of America, acting by )
ROBIN WARD )
being a person who, in accordance with the laws )
of that territory, is acting under the authority )
of the company )
Witness: ANNEKATRIN HARNISCH
Name: ANNEKATRIN HARNISCH
Address: 65 FLEET ST., LONDON EC4Y 1HS
THE CORPORATE ADMINISTRATOR
SIGNED, SEALED and DELIVERED as a ) ALAN GERAGHTY
DEED by WILMINGTON TRUST SP )
SERVICES (DUBLIN) LIMITED, a )
company incorporated in Ireland, acting by )
ALAN GERAGHTY )
being a person who, in accordance with the )
laws of that territory, is acting under the )
authority of the company )
Witness: NIGEL WOODS
Name: NIGEL WOODS
Address:
C/O WILMINGTON TRUST SP SERVICES (DUBLIN)
LIMITED
FIRST FLOOR
7 EXCHANGE PLACE
IFSC
DUBLIN 1
IRELAND
Page 96
SCHEDULE 1
TERMINATION EVENTS
The occurrence of any of the following events shall constitute a Termination
Event:
(a) NON PAYMENT: any Seller or the Parent or the Subordinated VLN Facility
Provider fails to make any payment due by it under the Transaction
Documents when due and such failure remains unremedied for 2 Business Days;
(b) MISREPRESENTATION: any representation or warranty other than a Receivables
Warranty made or deemed to be made by a Seller, the Parent or the
Subordinated VLN Facility Provider under or in connection with this Deed or
any other Transaction Document to which it is a party or any certification
made by any officer, director or other authorised signatory of a Seller,
the Parent or the Subordinated VLN Facility Provider under or in connection
with any Transaction Document or any information or report delivered by a
Seller, the Parent or the Subordinated VLN Facility Provider pursuant to
this Deed or any other Transaction Document shall prove to have been
incorrect or untrue in any material respect when made or deemed made or
delivered and such breach (if capable of remedy ) has not been remedied
within 5 Business Days of the breach;
(c) BREACH OF OBLIGATIONS: any Seller, the Parent or the Subordinated VLN
Facility Provider shall fail to perform or observe any other term, covenant
or agreement contained in this Deed or any other Transaction Document on
its part to be performed or observed and any such failure (if capable of
remedy) remains unremedied for 30 days;
(d) CROSS-DEFAULT: any default or other event shall occur or condition shall
exist under any agreement or instrument relating to any Debt of a Seller,
the Subordinated VLN Facility Provider or the Parent, and, as a result of
such event or condition, results in a default of such Debt; or any such
Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to repay, redeem, purchase or defease
such Debt shall be required to be made, in each case prior to the stated
maturity thereof in each case, subject in the case of a Seller or the
Subordinated VLN Facility Provider to a threshold amount of USD 10,000,000
and in the case of the Parent subject to a threshold amount of USD
50,000,000 (or in each case its equivalent in any other currency);
(e) VALID SECURITY: either:
(i) the Master Purchaser Secured Creditors shall, for any reason cease to
have a valid and perfected first priority Encumbrance in all of the
property, assets and rights of any kind of the Master Purchaser; or
Page 97
(ii) any Account Control Agreement does not, or ceases to create, a valid
and perfected first priority Encumbrance in favour of the Master
Purchaser or the Security Trustee (as applicable) in respect of the
Deposit Accounts or such other assets to which such Account Control
Agreement relates subject in each case to the grace periods of 60 days
permitted by Clauses 18(o) and 18(p) of the Master Receivables
Purchase and Servicing Agreement in relation to the implementation of
the Account Control Agreements; or
(iii) for any reason the Security Trustee certifies that in its opinion
(having taken appropriate legal advice) the Master Purchaser Secured
Property or the Master Purchaser Security Documents are in danger of
being taken under any process of law or the Master Purchaser Secured
Property is or may be in jeopardy in any respect considered by the
Security Trustee to be material;
(f) INVALIDITY: any provision of any of the Transaction Documents is, or
becomes, for any reason, invalid or unenforceable and the Master Purchaser,
the Funding Agent, the Lenders, the Noteholders and/or the Security Trustee
would be materially prejudiced by such provision becoming invalid or
unenforceable;
(g) CHANGE OF CONTROL: a Change of Control occurs;
(h) JUDGMENT: one or more judgments for the payment of money (except to the
extent covered by insurance as to which the insurer has acknowledged such
coverage in writing) exceeding the aggregate amount of (in the case of the
Parent) USD 50,000,000 or (in the case of a Seller or the Subordinated VLN
Facility Provider) USD 10,000,000 (or in each case its equivalent in any
other currency) shall be rendered against the Parent, a Seller, or the
Subordinated VLN Facility Provider and the same shall remain undischarged
for a period of 60 consecutive days during which execution shall not be
effectively stayed, or any action shall be taken by a judgment creditor to
attach or levy upon any assets of any Seller, the Parent or any
Subordinated VLN Facility Provider to enforce any such judgment;
(i) MATERIAL ADVERSE CHANGE: the occurrence of any event or series of events
(whether related or not), or any action by the Parent, a Seller, or the
Subordinated VLN Facility Provider which in the reasonable opinion of the
Collateral Monitoring Agent will have a Material Adverse Effect;
(j) SERVICER DEFAULT: any Servicer Default occurs;
(k) MASTER PURCHASER EVENT OF DEFAULT: any Master Purchaser Event of Default
occurs and has not been waived;
(l) CHANGE IN LAW: any enactment or supplement or amendment to, or change in,
the laws of any Eligible Country, or any official communication of
previously not existing or not publicly available official interpretation,
or any change in the official interpretation, implementation or application
of such laws, in each
Page 98
case that becomes effective on or after the Closing Date, as a result of
which any event occurs which will have a Material Adverse Effect on the
enforceability, collectability or origination of the Receivables in
aggregate or on the ability of any party to perform its obligations under
the Transaction Documents;
(m) LEGAL PROCESS, ATTACHMENT: all or any part of the property, business,
undertakings, assets or revenues of either of any Seller, any Servicer, the
Parent, or the Subordinated VLN Facility Provider having an aggregate value
in excess of (in the case of the Parent) USD50,000,000 (in the case of a
Seller or a Servicer or the Subordinated VLN Facility Provider) USD
10,000,000 (or in each case its equivalent in any other currency) has been
attached as a result of any distress or execution being levied or any
encumbrance taking possession or similar attachment and such attachment has
not been lifted within sixty (60) days, unless in any such case the
Collateral Monitoring Agent certifies that in its reasonable opinion such
event will not materially prejudice the ability of the Parent, such Seller,
such Servicer, or the Subordinated VLN Facility Provider to observe or
perform its obligations under the Transaction Documents or the
enforceability, collectability or origination of the Receivables;
(n) INSOLVENCY: the Parent, any Seller, or the Subordinated VLN Facility
Provider is or becomes or is declared to be Insolvent or subject to any
Insolvency Proceedings;
(o) ENCUMBRANCE: any Seller, the Parent, any Servicer or the Subordinated VLN
Facility Provider creates or grants any Encumbrance or permits any
Encumbrance to arise over or in relation to:
(i) any Receivable;
(ii) any right, title or interest of the Master Purchaser in relation to a
Receivable;
(iii) any proceeds of or sums received or payable in respect of a
Receivable; or
(iv) the interest of the Master Purchaser in any amount from time to time
standing to the credit of the Deposit Accounts,
other than the Seller Permitted Encumbrances;
(p) DISPUTE: any Seller disputes, in any manner, the validity or efficacy of
any sale and purchase of a Receivable under the Master Receivables Purchase
and Servicing Agreement and as a result, in the reasonable opinion of the
Collateral Monitoring Agent, there is, or could be, a Material Adverse
Effect on the ability of that Seller and/or any Servicer to perform their
respective obligations under the Transaction Documents or the
enforceability, collectability or origination of the Receivables is or
could be materially prejudiced;
Page 99
(q) ILLEGALITY: it becomes impossible or unlawful for any Seller, any Servicer,
the Parent, or the Subordinated VLN Facility Provider to continue its
business and/or discharge its obligations as contemplated by the
Transaction Documents and as a result, in the reasonable opinion of the
Collateral Monitoring Agent, there is, or is likely to be, a Material
Adverse Effect on the ability of such Seller, such Servicer, the Parent, or
the Subordinated VLN Facility Provider to perform their respective
obligations under the Transaction Documents or the enforceability,
collectability or origination of the Receivables is or is likely to be
materially prejudiced;
(r) LITIGATION: proceedings have been commenced against the Parent, any Seller,
any Servicer or the Subordinated VLN Facility Provider or any member of the
Visteon Group in any court, arbitral tribunal or public or administrative
body or otherwise in each case which, if adversely determined, could
reasonably be expected to result in the Parent, any Seller, any Servicer or
Subordinated VLN Facility Provider or other member of the Visteon Group
being required to pay at least (in the case of the Parent) USD50,000,000 or
(in the case of any Seller or any Servicer or the Subordinated VLN Facility
Provider) USD10,000,000 (or in each case its equivalent in any other
currency), but excluding, in each case, (i) any proceeding which is of a
vexatious or frivolous nature and is being disputed in good faith by the
Parent, any Seller, any Servicer or Subordinated VLN Facility Provider or
the relevant member of the Visteon Group as the case may be and (ii)
proceedings (x) which have been dismissed or (y) in respect of which final
judgment not subject to appeal has been rendered or final settlement made
and in respect of which the Parent, any Seller, any Servicer or the
Subordinated VLN Facility Provider or the relevant member of the Visteon
Group, as the case may be, has paid the amount required to be paid by it
pursuant to such judgment or settlement in full; and
(s) FCC TERMINATION EVENT: the occurrence of a termination event (cas de
resiliation) under the FCC Regulations, the FCC Master French Receivables
Transfer and Servicing Agreement, or other FCC Document.
Page 100
SCHEDULE 2
SERVICER DEFAULTS
The occurrence of any of the following events shall constitute a Servicer
Default:
(a) Any Servicer:
(i) shall fail to make when due any payment or deposit to be made by it
under the Master Receivables Purchase and Servicing Agreement and such
failure remains unremedied for 2 Business Days; or
(ii) shall fail to observe any term, covenant or agreement contained in the
first sentence of Clause 17.1 of the Master Receivables Purchase and
Servicing Agreement and such failure remains unremedied for 2 Business
Days; or
(iii) shall fail to deliver any Master Servicer Report when required and
such failure shall remain unremedied for two (2) Business Days (or in
the event that the failure to deliver any Master Servicer Report is
due solely to computer or other technical failure in generating such
report, 3 Business Days or such longer period as the Collateral
Monitoring Agent may agree in writing, such agreement not to be
unreasonably withheld or delayed); or
(iv) shall otherwise fail to perform or observe any other term, covenant or
agreement under the Master Receivables Purchase and Servicing
Agreement and such failure, if capable of remedy in the opinion of the
Collateral Monitoring Agent, shall remain unremedied for 5 Business
Days.
(b) Any representation or warranty made or deemed made by any Servicer under or
in connection with the Master Receivables Purchase and Servicing Agreement
or any other Transaction Document or any information or report delivered by
the Servicer pursuant to the Master Receivables Purchase and Servicing
Agreement or any other Transaction Document shall prove to have been
incorrect or untrue in any material respect when made or deemed made or
delivered and such breach (if capable of remedy) has not been remedied
within 5 Business Days.
(c) Any Servicer becomes Insolvent or becomes subject to any Insolvency
Proceedings.
(d) An event shall occur or condition shall exist under any agreement or
instrument relating to any Debt of any Servicer which is outstanding in a
principal amount of at least USD 10,000,000 (or equivalent value in any
other currency) in the aggregate and, as a result of such event or
condition, the maturity of such Debt is accelerated; or any such Debt shall
be declared to be due and payable, or required to be prepaid (other than by
a regularly scheduled
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required prepayment), redeemed, purchased or defeased, or an offer to
repay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof.
(e) There shall have occurred any event which causes an Account Control
Agreement to cease to be in full force and effect or any Account Control
Agreement ceases to be a valid, first priority, perfected Encumbrance save
if resulting from any release made in accordance with the provisions of any
Transaction Document.
(f) There shall have occurred any event which may materially adversely affect
the ability of the Servicer to collect Purchased Receivables or otherwise
perform its obligations under the Master Receivables Purchase and Servicing
Agreement and the other Transaction Documents or any provision of any
Transaction Document applicable to the Servicer shall cease to be effective
and valid and binding on the Servicer.
(g) One or more judgments for the payment of money in an aggregate amount in
excess of USD 10,000,000 (or equivalent value in any other currency)
(except to the extent covered by insurance as to which the insurer has
acknowledged such coverage in writing) shall be rendered against any
Servicer or any of its Subsidiaries or any combination thereof, and the
same shall remain undischarged for a period of 60 consecutive days during
which execution shall not be effectively stayed, or any action shall be
taken legally and validly by a judgment creditor to attach or levy upon any
assets of that Servicer or any of its Subsidiaries to enforce any such
judgment.
A Servicer Default shall not occur until any applicable grace period or cure
period has expired. If a replacement servicer is in place within the applicable
cure period, then the related potential Servicer Default shall be deemed to have
been cured.
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SCHEDULE 3
CONDITIONS PRECEDENT
PART A
INITIAL CONDITIONS PRECEDENT
(a) Completion and execution of documentation mutually satisfactory to the
Parent and the Collateral Monitoring Agent including the Parent
Undertaking.
(b) Completion of due diligence and audit in respect of the Parent and the
Sellers satisfactory to the Collateral Monitoring Agent.
(c) All fees and expenses (including reasonable fees and expenses of counsel)
required to be paid to the Joint Lead Arrangers, the Security Trustee, the
Collateral Monitoring Agent, the Collateral Monitoring Agent and the
Lenders on or before the Closing Date shall have been paid.
(d) The absence of a material adverse change, or any event or occurrence which
could reasonably be expected to result in a material adverse change, in (i)
the business, financial condition, property, or operations, of the Parent
and its subsidiaries, taken as a whole, since 31 December 2005, (ii) the
ability of the Parent or any of its Subsidiaries to perform their
respective obligations under the Transaction Documents or (iii) the ability
of the Funding Agent, the Collateral Monitoring Agent, the Security Trustee
or the Lenders to enforce any of the Transaction Documents (subject to any
limitations on enforcement described in the legal opinions described in
paragraphs (k) to (w) (inclusive) below).
(e) No circumstance, change or condition (including the continuation of any
existing condition) shall exist in the loan syndication, financial or
capital market conditions generally that, in the Joint Lead Arrangers'
judgment, would materially impair syndication of the Variable Funding
Facility.
(f) The accuracy and completeness of all representations set forth in the
Transaction Documents.
(g) Compliance with the terms of the Commitment Letters and the Fee Letters,
including, without limitation, the payment in full of all fees, expenses
and other amounts payable under the Commitment Letters and the Fee Letters
on or prior to the Funding Date.
THE PARENT, THE SUBORDINATED VLN FACILITY PROVIDER THE SELLERS
(h) With respect to the Parent, the Subordinated VLN Facility Provider and each
Seller the provision of:
(i) Copies of the latest versions of its constitutional documents
certified by a director to be a true and up to date copy of the
original.
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(i) As applicable, up to date Commercial Register excerpts dated no earlier
than 6 calendar months prior to the date hereof.
(i) Certified copies of the resolutions of its board of directors, in form
and substance satisfactory to the Collateral Monitoring Agent,
authorising the execution, delivery and performance of the Transaction
Documents to be entered into by the Parent, the Subordinated VLN
Facility Provider or such Seller, certified as of the Funding Date,
which certificate shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(ii) A certified copy of any power of attorney of the Parent, the
Subordinated VLN Facility Provider and each Seller granted by it to
the attorneys, officers or other employees of the Seller authorised to
sign the Transaction Documents on its behalf.
(iii) A Solvency Certificate in respect of the Parent and each Seller
(other than the French Sellers) in the applicable form set out in
Schedule 4 to the Master Receivables Purchase and Servicing Agreement.
(iv) A copy of the annual report for the Parent for the year 2005
(including audited accounts).
THE MASTER PURCHASER
(j) With respect of the Master Purchaser the provision of:
(i) Copies of the latest version of the memorandum and articles of
association of the Master Purchaser together with its certificate of
incorporation, its certificate of entitlement to commence trading and
any certificate of change of name certified by the company secretary
or a director of the Master Purchaser to be a true and up to date copy
of the original.
(ii) Copies of the resolutions of the board of directors of the Master
Purchaser authorising the execution, delivery and performance of the
Transaction Documents to be entered into by the Master Purchaser,
certified by the company secretary or a director of the Master
Purchaser as of the Funding Date, which certificate shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(iii) A certificate as to the incumbency and signature of the officers or
other employees authorised to sign the Transaction Documents on behalf
of the Master Purchaser and any certificate or other document to be
delivered pursuant thereto, certified by the company secretary or a
director of the Master Purchaser together with evidence of the
incumbency of such company secretary or director.
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LEGAL OPINIONS
(k) A legal opinion of Freshfields Bruckhaus Deringer addressed to the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of English law as to the enforceability of the
Transaction Documents governed by English law and other relevant matters.
(l) A legal opinion of Freshfields Bruckhaus Deringer addressed to the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of German law as to the enforceability of the
Transaction Documents governed by German law and other relevant matters.
(m) A legal opinion of Freshfields Bruckhaus Deringer addressed to the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated prior to the
Funding Date as to matters of Spanish law as to the enforceability of the
Transaction Documents governed by Spanish law and other relevant matters.
(n) A legal opinion of Antonio Frutuoso de Melo e Associados, Sociedade de
Advagodos RL addressed to the Issuer, the Security Trustee, the Lenders and
the Funding Agent dated the Closing Date as to matters of Portuguese law as
to the enforceability of the Transaction Documents governed by Portuguese
law and other relevant matters.
(o) A legal opinion of Freshfields Bruckhaus Deringer addressed to the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of Belgian law as to the effectiveness of the
assignments in respect of Belgian debtor receivables and other relevant
matters.
(p) A legal opinion of Freshfields Bruckhaus Deringer addressed to the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of Dutch law as to the effectiveness of the assignments
in respect of Dutch debtor receivables and other relevant matters.
(q) A legal opinion of McCann Fitzgerald addressed to the Issuer, the Security
Trustee, the Lenders and the Funding Agent dated the Closing Date as to
matters of Irish law in respect of the due incorporation and corporate
capacity of the Master Purchaser, due execution and authorisation of the
Transaction Documents to which it is a party and other relevant matters.
(r) A legal opinion of Kirkland & Ellis International LLP addressed to the
Parent, the Issuer, the Security Trustee, the Lenders and the Funding Agent
dated the Closing Date as to matters of English law in respect of the
corporate existence and authority of the English Seller, due execution of
the Transaction Documents to which it is a party, and other relevant
matters.
(s) A legal opinion of Kirkland & Ellis International LLP addressed to the
Parent, the Issuer, the Security Trustee, the Lenders and the Funding Agent
dated the Closing Date as to matters of German law in respect of the
corporate existence and authority of the German Seller, due execution of
the Transaction Documents to which it is a party, and other relevant
matters.
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(t) A legal opinion of Uria & Menedez addressed to the Parent, the Issuer, the
Security Trustee, the Lenders and the Funding Agent dated the Closing Date
as to matters of Spanish law in respect of the corporate existence and
authority of the Spanish Sellers, due execution of the Transaction
Documents to which it is a party, and other relevant matters.
(u) A legal opinion of Kirkland & Ellis addressed to the Parent, the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of the law of the State of Delaware and applicable
Federal law of the United States of America in respect of the corporate
existence and corporate power of the Parent, due execution of the
Transaction Documents to which it is a party, and other relevant matters.
(v) A legal opinion of Nauta Dutilh N.V. addressed to the Parent, the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of Dutch law in respect of the corporate existence and
authority of the Subordinated VLN Facility Provider, due execution of the
Framework Deed, the Subordinated VLN Facility Agreement and the Master
Purchaser Deed of Charge and other relevant matters.
(w) A legal opinion of White & Case, Paris addressed to the Parent, the Issuer,
the Security Trustee, the Lenders and the Funding Agent dated the Closing
Date as to matters of French law in respect of the corporate existence and
authority of the French Sellers, due execution of the Framework Deed, the
Subordinated VLN Facility Agreement and the Master Purchaser Deed of Charge
and other relevant matters.
GENERAL
(x) Due execution and delivery of each of the Transaction Documents (other than
the FCC Documents) by the respective parties thereto, and all documentation
to be delivered therewith or pursuant thereto on or prior to the Funding
Date.
PART B
CONDITIONS PRECEDENT TO ALL PURCHASES
Each purchase (including the initial purchase) shall be subject to the further
Conditions Precedent that on the date of such purchase the following statements
shall be true:
(a) the representations and warranties contained in Schedule 1 to the Master
Receivables Purchase and Servicing Agreement are correct on and as of the
date of such purchase as though made on and as of such date except for a
representation or warranty that relates only to an earlier date in which
case such representation or warranty shall be correct as at such earlier
date;
(b) no event has occurred and is continuing, or would result from such purchase
or reinvestment, that constitutes a Termination Event or a Potential
Termination Event,
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and that the Collateral Monitoring Agent, the Funding Agent and the Master
Purchaser shall have received such other approvals, opinions or documents as any
of them may reasonably request;
PART C
CONDITIONS PRECEDENT TO PURCHASES OF FRENCH RECEIVABLES
(a) FCC Visteon has been established, all FCC Documents required to be entered
into on or prior to the French Programme Commencement Date have been
executed and delivered (in a form approved by the Collateral Monitoring
Agent) and all conditions precedent to purchase of Receivables by the FCC
Visteon (as set out in the FCC Documents) have been satisfied.
(b) A legal opinion of Freshfields Bruckhaus Deringer addressed to the Issuer,
the Security Trustee and the Funding Agent dated the French Receivables
Commencement Date as to matters of French law as to the enforceability of
the Transaction Documents governed by French law and other relevant
matters.
(c) A legal opinion of White & Case, Paris addressed to the Parent, the Issuer,
the Security Trustee and the Funding Agent dated the French Receivables
Commencement Date as to matters of French law in respect of the corporate
existence and authority of the French Sellers, due execution of the
Transaction Documents to which it is a party, and other relevant matters.
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SCHEDULE 4
FORM OF FRAMEWORK DEED ACCESSION DEED
THIS DEED OF ACCESSION is made on [_____] [_____]
BETWEEN:
(1) VISTEON FINANCIAL CENTRE P.L.C., incorporated in Ireland and its permitted
successors and assigns (the MASTER PURCHASER);
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C., having its registered office at
Fifth Floor, 100 Wood Street, London EC2V 7EX (the SECURITY TRUSTEE); and
(3) [NAME OF ACCEDING PARTY] a company incorporated in [_____] (registered
number [_____]) whose [registered office][principal place of business] is
at [_____] (the Acceding Noteholder).
IT IS HEREBY AGREED as follows:
1. We refer to the Master Definitions and Framework Deed (the MASTER DEFINITIONS
AND FRAMEWORK DEED) dated 14 August 2006 between, inter alios, the Master
Purchaser, Visteon Corporation, The Law Debenture Trust Corporation p.l.c. and
Citibank N.A. London Branch.
Terms defined in, or incorporated by reference into, the Master Definitions and
Framework Deed shall have the same meanings herein as therein.
2. The Acceding Noteholder hereby confirms that it is in receipt of the
following documents:
(a) a copy of the Master Definitions and Framework Deed;
(b) a copy of the Master Purchaser Deed of Charge; and
(c) a copy of current versions of all other Transaction Documents as we have
requested.
3. The Acceding Noteholder hereby confirms for the purposes of Clause 6 of the
Master Definitions and Framework Deed then its notice details are as follows:
________________________________________________________________________________
[insert name, address, telephone, facsimile and attention].
4. In consideration of its accession to the Master Definitions and Framework
Deed pursuant to this deed, the Acceding Noteholder hereby undertakes, for the
benefit of the Master Purchaser, the Security Trustee and each of the other
parties to the Master Definitions and Framework Deed, that it will perform and
comply with all the duties and obligations expressed to be assumed by a
Noteholders under the Master
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Definitions and Framework Deed and will have the benefit of all the provisions
of the Master Definitions and Framework Deed as if it were named in it as a
Noteholder.
IN WITNESS WHEREOF the parties to this Deed have executed this Deed on the date
specified above with affect from that date.
SIGNED, SEALED and DELIVERED as a )
DEED by )
as duly authorised attorney )
for and on behalf of )
VISTEON FINANCIAL CENTRE P.L.C. )
in the presence of: )
Witness:
------------------------
Name:
---------------------------
Address:
------------------------
EXECUTED and DELIVERED as a DEED )
under the COMMON SEAL of THE LAW )
DEBENTURE TRUST CORPORATION )
P.L.C. in the presence of: )
Director:
-----------------------
Authorised
Signatory:
----------------------
EXECUTED and DELIVERED as a )
DEED by )
as duly authorised attorney )
for and on behalf of )
[___________] in the presence of: )
Witness:
------------------------
Name:
---------------------------
Address:
------------------------
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SCHEDULE 5
CONCENTRATION LIMITS
For any Obligor, at any time, the Concentration Limit applicable to that Obligor
shall be the limit set out in the grid below (being a percentage of Net
Receivables Pool Balance) based on the Debt Rating of that Obligor, provided
that affiliated Obligors shall be treated as if they were one Obligor. If the
relevant Obligor is Ford Motor Company or a subsidiary thereof, the column
titled "Ford Limit" shall be applied; for all other Obligors, the column titled
"Non-Ford Limit" shall be applied.
LEVEL UNSECURED RATING FORD LIMIT NON-FORD LIMIT
----- ---------------------------------------- ---------- --------------
Level 1 BBB- and Baa3 (not on negative watch) or 40% 40%
better
Level 2 BBB- and Baa3 and on negative watch by 30% 30%
either Moody's or Standard and Poor's)
Level 3 BB+ to BB- and Ba1 to Ba3 25% 25%
Level 4 B+ and B1 25% 20%
Level 5 B and B2 20% 15%
Level 6 B- and B3 or lower, or is unrated by 10% 10%
Moody's and Standard and Poor's
If Debt Ratings from S&P and Moody's differ by one notch then the lower of the
two ratings shall determine the grid level. If the Debt Ratings differ by two or
more notches, then the rating level that is one notch above the lower of the two
ratings shall apply.
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SCHEDULE 6
THE LENDERS AND NOTEHOLDERS
NAME ADDRESS
---- --------------------------
Citibank, N.A. Citigroup Centre,
Canada Square,
Canary Wharf,
London E14 5LB,
England
UBS AG, London Branch 1 Finsbury Avenue,
London EC2M 2PP,
England
JPMorgan Chase Bank, N.A. 125 London Wall,
London EC2Y 5AJ,
England
Bank of America, N.A. One South Wacker Drive,
Suite 3400,
Chicago, IL 60606,
USA
BNP Paribas 3, Place de La Defense,
F-92974 Paris,
La Defense Cedex,
France
BNP Paribas, Dublin Branch 5 Georges Dock,
I.F.C.S.,
Dublin 1,
Ireland
Credit Suisse Eleven Madison Avenue,
New York, NY10010,
USA
Deutsche Bank AG London Winchester House,
1 Great Winchester Street,
London EC2N 2DB,
England
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The Bank of New York One Wall Street,
New York, NY10286,
USA
Wachovia Capital Finance One South Wacker Drive,
Corporation (Central) Suite 2200,
Chicago, IL 60606,
USA
The CIT Group/Business Credit, Inc. 11 West 42nd Street
New York, NY 10036
USA
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SCHEDULE 7
THE SELLERS AND THE SERVICERS
JURISDICTION OF
SELLER INCORPORATION REGISTERED OFFICE
------ --------------- ----------------------------------
Visteon UK Limited England Endeavour Drive, Basildon,
Essex SS14 3WF,
England
Visteon Deutschland Germany Visteon Strasse 4-10, 50170
GmbH Kerpen, Germany
Visteon Systemes France Tour Europlaza
Interieurs S.A.S. 20, avenue Andre Prothin,
La Defense 4, 92927
La Defense Cedex
France
Visteon Ardennes France Z.I. De Montjoly
Industries S.A.S. BP 228
08102 Charleville - Mezieres Cedex
France
Visteon Sistemas Spain VICA/dentro de Nissan Motor 16
Interiores Espana S.L. Zona Franca, Sector - B, C/3, n
08040 Barcelona
Spain
Cadiz Electronica S.A. Spain Carretera Comarcal El Puerto
Sanlucar 602, Km8
Apartado de Correos 200
11500 El Puerto de Santa Maria
Spain
Visteon Portuguesa Bermuda Clarendon House
Limited 2 Church Street
Hamilton HM 11
Bermuda
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