THIRD AMENDMENT TO EQUITY COMMITMENT AGREEMENT
Exhibit L
Execution Version
THIRD AMENDMENT TO EQUITY COMMITMENT AGREEMENT
This Third Amendment (this “Amendment”), dated as of August 9, 2010, is made and
entered into by and among Visteon Corporation (as debtor-in-possession and a reorganized debtor, as
applicable, the “Company”), the Investors whose signatures are set forth below (the
“Amending Investors”), and the Persons whose signatures are set forth below as “Additional
Purchasers.” Capitalized terms used and not otherwise defined herein have the meanings set forth in
the Equity Commitment Agreement (as defined below).
WHEREAS, the Company and the Amending Investors are parties to that certain Equity Commitment
Agreement, dated as of May 6, 2010 (as amended by that certain First Amendment to the Equity
Commitment Agreement, dated as of June 13, 2010, and as amended further by that certain Second
Amendment to the Equity Commitment Agreement, dated as of June 20, 2010, the “Equity Commitment
Agreement”);
WHEREAS, the Company and the Amending Investors wish to amend the Equity Commitment Agreement,
and the Amending Investors include all of the Investors;
WHEREAS, the Additional Purchasers are the parties that comprise the Ad Hoc Equity Committee;
and
WHEREAS, the Additional Purchasers wish to become, and the Company and the Amending Investors
desire for the Additional Purchasers to become, Parties to the Equity Commitment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and
in the Equity Commitment Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
A. Amendments to the Equity Commitment Agreement. The Equity Commitment Agreement is
hereby amended as follows:
1. Preamble. The preamble to the Equity Commitment Agreement is hereby deleted in its
entirety and in lieu thereof is inserted the following:
“THIS EQUITY COMMITMENT AGREEMENT (this “Agreement”), dated as of May 6, 2010, is made
by and among Visteon Corporation (as a debtor in possession and a reorganized debtor, as
applicable, the “Company”), the Persons set forth on Schedule 1 hereto under the
heading “Investor” (each referred to herein individually as an “Investor” and collectively
as the “Investors”), and the Persons set forth on Schedule 7 hereto under the
heading “Additional Purchaser” (each referred to herein individually as an “Additional Purchaser”
and collectively as the “Additional Purchasers”). The Company, each Investor, and each
Additional Purchaser is referred to herein as a “Party” and collectively, the
“Parties”. Capitalized terms used herein have the meanings ascribed thereto in Article
I.”
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
2. Recitals. The fourth Recital to the Equity Commitment Agreement is hereby deleted
in its entirety and in lieu thereof is inserted the following:
“WHEREAS, the Company has requested that the Investors, severally and not jointly, and the
Additional Purchasers, severally and not jointly, participate in the Plan, and the Investors and
the Additional Purchasers, severally and not jointly, are willing to participate in the Plan, on
the terms and subject to the conditions contained in this Agreement and, solely with respect to the
Investors, the Plan Support Agreement.”
3. Section 1.1 — Definitions. Section 1.1 of the Equity Commitment Agreement is
hereby amended as follows:
(a) by adding the following definitions in appropriate alphabetical order:
(i) ““Additional Purchaser Default” means the failure by any Additional
Purchaser to purchase any Additional Purchaser Shares that such Additional Purchaser
is obligated to purchase under this Agreement.”
(ii) ““Available Additional Purchaser Shares” means Additional Purchaser Shares
that any Additional Purchaser fails to purchase as a result of an Additional
Purchaser Default by such Additional Purchaser.”
(iii) ““Sustained Objection” means the Bankruptcy Court’s sustaining of any
objection by any Person, or any objection raised by the Bankruptcy Court sua sponte,
to (i) the Additional Purchaser Commitment under the Third Amendment or (ii) the
distribution to holders of Interests (as defined in the Plan) in Class J (as defined
in the Plan) under Article III of the Plan.”
(iv) ““Third Amendment” means the Third Amendment to this Agreement, dated as
of August 9, 2010, by and among the Company, the Investors, and the Additional
Purchasers.”
(b) by adding the phrase “but for the avoidance of doubt, Additional Purchasers
are not Co-Investors” at the end of the definition of Co-Investor.
4. Section 1.2 — Additional Defined Terms. Section 1.2 of the Equity Commitment
Agreement is hereby amended as follows:
(a) by
adding the phrases “Additional Purchaser,” “Additional Purchaser
Commitment,” “Additional Purchaser Expenses,”
“Additional Purchaser Shares,” “Alternate
Confirmation Hearing,” “Appeal,” “Discovery,” and “Related Additional Purchaser,”
along with corresponding Section references, in appropriate alphabetical order; and
(b) by deleting the phrase “Breaching Investor” and inserting in lieu thereof
the phrase “Breaching Party”.
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
5. Section 3.1(a) — The Direct Purchase Commitment. Section 3.1(a) of the Equity
Commitment Agreement is hereby amended as follows:
(a) The phrase “ten million eight hundred thirty-four thousand eight hundred
(10,834,800)” in such Section is hereby deleted and in lieu thereof is inserted the
phrase “ten million six hundred ninety thousand three hundred forty-four
(10,690,344)”.
(b) The following language is hereby added at the end of such Section:
“On the terms and subject to the conditions set forth in this Agreement, each Additional
Purchaser agrees, severally and not jointly, to subscribe for and purchase, and the Company agrees
to sell and issue to such Additional Purchaser, on the Effective Date for the Purchase Price per
share, the number of shares of New Common Stock (the “Additional Purchaser Shares”) as set
forth in Schedule 7 opposite the name of such Additional Purchaser, rounded among the
Additional Purchasers solely to avoid fractional shares as the Company may determine in its sole
discretion (such obligation to purchase the Additional Purchaser Shares, the “Additional
Purchaser Commitment”) with the aggregate amount of Additional Purchaser Shares being one
hundred forty-four thousand four hundred fifty-six (144,456) shares. Additional Purchaser Shares
shall be issued and delivered to the Additional Purchasers on the same terms set forth in
Section 3.5 of this Agreement (assuming, solely for this purpose, that (i) each instance of
the word “Investor” and “Investors” (other than in the phrase “Requisite Investors”) is replaced
with the words “Additional Purchaser” and “Additional Purchasers”, respectively, and (ii) the
phrase “Related Purchasers or Ultimate Purchasers” contained in Section 3.5(c) is replaced
with the phrase “Related Additional Purchasers”), subject only to the condition that the sale and
purchase of the Investor Shares as contemplated by this Agreement shall occur simultaneously with
the sale and purchase of the Additional Purchaser Shares.”
6. Section 3.3 — Alternative Financing. Section 3.3 of the Equity Commitment
Agreement is hereby amended as follows:
(a) each instance of the phrase “Investor Default or a Signatory Default” shall
be deleted and in each instance in lieu thereof shall be inserted the phrase
“Investor Default, Additional Purchaser Default, or Signatory Default”;
(b) each instance of the phrase “Investor Default or Signatory Default” shall
be deleted and in each instance in lieu thereof shall be inserted the phrase
“Investor Default, Additional Purchaser Default, or Signatory Default”;
(c) each instance of the phrase “Available Investor Shares or Cash Recovery
Subscription Equity” shall be deleted and in each instance in lieu thereof shall be
inserted the phrase “Available Investor Shares, Available Additional Purchaser
Shares, or Cash Recovery Subscription Equity”;
(d) each instance of the phrase “all Available Investor Shares or all of the
Cash Recovery Subscription Equity” shall be deleted and in each instance in lieu
thereof shall be inserted the phrase “all Available Investor Shares, all Available
Additional Purchaser Shares, or all of the Cash Recovery Subscription Equity”;
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
(e) by adding the phrase “; provided, further, that notwithstanding the
foregoing, in the event of an Additional Purchaser Default, each Investor shall be
entitled to purchase the Available Additional Purchaser Shares resulting from such
Additional Purchaser Default in proportion to each Investor’s Allotted Portion, but
any Available Additional Purchaser Shares not so purchased shall be subject to the
provisions of this Section 3.3” immediately following the phrase “as the case may
be, are purchased, an “Alternative Financing”)” at the end of the first sentence of
Section 3.3(a); and
(f) Section 3.3(c) shall be deleted in its entirety and in lieu thereof shall
be inserted the following sentence: “Nothing in this Agreement shall be deemed to
require (i) an Investor to purchase more than its Allotted Portion of (A) the Direct
Subscription Shares and (B) the Unsubscribed Shares or (ii) an Additional Purchaser
to purchase more than the number of Additional Purchaser Shares set forth with
respect to such Additional Purchaser on Schedule 7.”
7. Section 3.6 — Transfer, Designation and Assignment Rights. Section 3.6 of the
Equity Commitment Agreement is hereby amended as follows:
(a) Section 3.6(b) shall be amended by adding the phrase “that apply to
Investors” immediately following the phrase “Section 7.16” in the first sentence
thereof; and
(b) the following subsection (e) shall be added at the end of such Section:
“(e) Each Additional Purchaser shall have the right to designate by written notice to the
Company no later than five (5) Business Days prior to the Effective Date that some or all of
its Additional Purchaser Shares be issued in the name of and delivered to, one or more of
its Affiliates (each, a “Related Additional Purchaser”) upon receipt by the Company
of payment therefor in accordance with the terms hereof, which notice of designation shall
(i) be addressed to the Company and signed by such Additional Purchaser and each Related
Additional Purchaser, (ii) specify the number of Additional Purchaser Shares to be delivered
to or issued in the name of such Related Additional Purchaser and (iii) contain a
confirmation by such Related Additional Purchaser of the accuracy of the representations set
forth in Sections 6.6 through 6.8 as applied to such Related Additional
Purchaser; provided, that no such designation pursuant to this Section 3.6(e)
shall relieve such Additional Purchaser from its obligations under this Agreement.
Additionally, each Additional Purchaser may assign all or any portion of its Additional
Purchaser Commitment to a Related Additional Purchaser who agrees in writing to be bound by
this Agreement by executing and delivering to the Company and each Investor and each other
Additional Purchaser a joinder agreement pursuant to which such Related Additional Purchaser
agrees to be bound by the provisions of this Agreement as if it were an Additional
Purchaser, in form and substance reasonably acceptable to the Company, including a revised
Schedule 7 to reflect such assignment; provided, that no such assignment
pursuant to this Section 3.6(e)
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
shall relieve such
Additional Purchaser from its obligations under this Agreement without giving effect to such
revised Schedule 7; provided, further, that such Additional
Purchaser shall provide written notice to the Company and each Investor and each other
Additional Purchaser in advance of such assignment and no later than five (5) Business Days
prior to the Effective Date. Each Additional Purchaser, severally and not jointly, agrees
that it will not, directly or indirectly, assign, at any time prior to the Effective Date or
earlier termination of this Agreement in accordance with its terms, its rights and
obligations under this Agreement or to Additional Purchaser Shares or any interest or
participation therein to any Person other than a Related Additional Purchaser pursuant to
this Section 3.6(e) or another Additional Purchaser who is bound by this Agreement.
If an Additional Purchaser assigns its rights and obligations under this Agreement or to any
Additional Purchaser Shares or any interest or participation therein, to another Additional
Purchaser who is bound by this Agreement pursuant to this Section 3.6(e), (i) such
assignment shall occur no later than five (5) Business Days prior to the Effective Date,
(ii) the assigning Additional Purchaser shall be relieved of its obligations hereunder with
respect to the Additional Purchaser Shares subject to such assignment, (iii) the assignee
Additional Purchaser who is a party to this Agreement shall assume such obligations, and
(iv) the Additional Purchasers involved in such assignment shall provide written notice to
the Company and each other Investor containing a revised Schedule 7 accurately
reflecting any changes required by the transactions contemplated by this Section
3.6(e). Nothing in this Agreement shall limit or restrict in any way any Additional
Purchaser’s ability to Transfer any of its Additional Purchaser Shares or any interest
therein after the Effective Date pursuant to an effective registration statement under the
Securities Act or an exemption from the registration requirements thereunder and pursuant to
applicable state securities Laws.”
8. Section 4.3 — Transaction Expenses. Section 4.3 of the Equity Commitment Agreement
is hereby amended as follows:
(a) by deleting the phrase “two hundred thousand dollars ($200,000)” contained
in Section 4.3(a)(iv) and inserting in lieu thereof the phrase “three hundred-fifty
thousand dollars ($350,000)”;
(b) by deleting the phrase “(collectively, “Transaction Expenses”)” contained
in Section 4.3(a) and inserting in lieu thereof the phrase “(collectively, and
together with the Additional Purchaser Expenses, the “Transaction Expenses”;
provided, however that the term Transaction Expenses shall not include any
Additional Purchaser Expenses for the purposes of clauses (i)-(v) below”; and
(c) by adding the following subsection (d) at the end of such Section:
“(d) On the Effective Date (or, if applicable, the effective date of the Claims
Conversion Sub-Plan), so long as each Additional Purchaser continues to support the
Plan and has not breached any of its obligations under Section 7.16, the
Company will reimburse the actual, documented out-of-pocket costs and expenses
(including the actual, documented fees, costs, and expenses of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
as counsel, ▇▇▇▇▇▇▇▇ Ingersoll & Rooney
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
P.C., as cocounsel, and Gleacher &
Company, as financial advisor) incurred on or prior to the date of the Third
Amendment by each of the Additional Purchasers in connection with the Additional
Purchasers’ prosecution of their interests during the Proceedings (collectively,
“Additional Purchaser Expenses”) (it being understood that (x) the Debtors
have reviewed the supporting materials for the Additional Purchaser Expenses and
have determined that the Additional Purchaser Expenses are reasonable and (y) that
the Investors will not oppose the payment of the Additional Purchaser Expenses in
accordance with the terms of this Agreement); provided, that the Company
shall not be required to reimburse any Additional Purchaser Expenses in excess of
four million two hundred-fifty thousand dollars ($4,250,000) in the aggregate for
all Additional Purchasers, including their respective advisors.”
9. Article V — Representations and Warranties of the Company. Article V of the Equity
Commitment Agreement is hereby amended as follows:
(a) the preamble to such Article is hereby amended by deleting the phrase “the
Company represents and warrants to, and agrees with, each of the Investors as set
forth below” and inserting in lieu thereof the phrase “the Company represents and
warrants to, and agrees with, each of the Investors (and, solely with respect to
Sections 5.1, 5.2, 5.3, 5.4, 5.5, and 5.8, each of the Additional Purchasers) as set
forth below”;
(b) Section 5.5 of the Equity Commitment Agreement is hereby amended by adding,
immediately after each instance of the word “the Shares”, the phrase “ and the
Additional Purchaser Shares” and by adding, immediately after each instance of the
word “Holders”, the phrase “and the Additional Purchasers”; and
(c) Section 5.8 of the Equity Commitment Agreement is hereby amended as
follows:
(i) by adding, immediately after the word “Investors”, the phrase “ and
Additional Purchasers”;
(ii) by adding, immediately after the word “including”, the phrase “, solely
with respect to the Investors,”; and
(iii) by adding, immediately after the word “Investor”, the phrase “ or
Additional Purchaser”.
10. Article VI — Representations and Warranties of the Investors. Article VI of the
Equity Commitment Agreement is hereby amended as follows:
(a) The heading of such Article is hereby amended by deleting in its entirety
the existing heading and inserting in lieu thereof the phrase “Representations and
Warranties of the Investors and Additional Purchasers”.
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
(b) The preamble of such Article is hereby amended as follows:
(i) by adding, immediately after the word “warrant”, the words “, and Section
6.11, as to which only the Additional Purchasers represent and warrant”;
(ii) by adding, immediately after the word “below” at the end of the preamble,
the words “ and each Additional Purchaser represents and warrants (except with
respect to Section 6.9, as to which only the Lead Investors represent and warrant)
as to itself only, and agrees with, the Company, severally and not jointly, as set
forth below”;
(c) each other Section of Article VI is hereby amended as follows:
(i) by adding the words “or Additional Purchaser, as the case may be,”
immediately following each instance of the word “Investor”;
(ii) by adding the words “or Additional Purchaser Shares, as the case may be,”
following the words “Investor Shares” except that the first parenthetical phrase
appearing in Section 6.5 shall be amended to read as follows: “(including the
purchase by such Investor or Additional Purchaser, as the case may be, of its
Allotted Portion of the Investor Shares or its Additional Purchaser Shares as set
forth on Schedule 7, as the case may be)”; and
(d) by adding the following Section 6.11 at the end of such Article:
“Section 6.11 Additional Purchaser’s Shares. As of the date of the Third Amendment,
such Additional Purchaser owns, free and clear of any restriction on the right to vote, the number
of shares of common stock of the Company (as a debtor-in-possession) set forth opposite the name of
such Additional Purchaser on Schedule 7.”
11. Section 7.3 — Securities Laws. Section 7.3 of the Equity Commitment Agreement is
hereby amended so that each instance of the phrase “Investor Shares” shall be deleted and in each
instance in lieu thereof shall be inserted the phrase “Investor Shares or Additional Purchaser
Shares, as the case may be”.
12. Section 7.7 — Funding Approval. Section 7.7 of the Equity Commitment Agreement is
hereby amended as follows:
(a) by adding the words “plus (iii) such Investor’s Allotted Portion of the
Additional Purchaser Commitment” immediately prior to the word “and” in clause (ii);
and
(b) by adding the following sentence at the end Section 7.7: “Each Additional
Purchaser shall deliver to the Company, on the date that is ten (10) Business Days
prior to the date scheduled for the Confirmation Hearing, a certificate from an
officer or a duly authorized agent of such Additional Purchaser certifying that such
Additional Purchaser’s credit committee (or such similar governing entity that is
responsible for approving such matters in accordance with such Additional
Purchaser’s normal operations) has approved, subject only to the
terms and conditions of this Agreement and the Plan that are applicable to such
Additional Purchaser, the funding by such Additional Purchaser of an amount equal to
such Additional Purchaser’s portion of the amount of the Additional Purchaser
Commitment as set forth on Schedule 7.”
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
13. Section 7.8 — Use of Proceeds. Section 7.8 of the Equity Commitment Agreement is
hereby amended so that each instance of the phrase “Investor Shares” shall be followed by “and
Additional Purchaser Shares”.
14. Section 7.12 — Takeover Statutes. Section 7.12 of the Equity Commitment
Agreement is hereby amended so that each instance of the phrase “Investors” shall be followed by
“or Additional Purchasers”.
15. Section 7.14 — Commercially Reasonable Efforts. Section 7.14 of the Equity
Commitment Agreement is hereby amended as follows:
(a) Section 7.14(a) shall be amended such that (i) the phrase “Company or any
Investor” shall be deleted and replaced with “Company, any Investor or any
Additional Purchaser” and (ii) the phrase “and each Investor shall use” shall be
deleted and replaced with “and each Investor and, subject to Section 7.16, each
Additional Purchaser, shall use”;
(b) Section 7.14(b) shall be amended such that (i) the phrase “Investors and
the Company” shall be deleted and replaced with “Investors, Additional Purchasers
and the Company”, (ii) the phrase “Investors or the Company” shall be deleted and
replaced with “Investors, Additional Purchasers or the Company” and (iii) the phrase
“Company and the Investors” shall be deleted and replaced with “Company, Additional
Purchasers and the Investors”; and
(c) Section 7.14(c) shall be amended such that the word “Investor” shall be
deleted and replaced with “Investor or Additional Purchaser” and the word
“Investor’s” shall be deleted and replaced with “Investor’s or Additional
Purchaser’s”.
16. Section 7.15 — Antitrust Approval. Sections 7.15(b) and 7.15(e) of the Equity
Commitment Agreement are hereby amended as follows: each instance of the word “Investor” (but, for
the avoidance of doubt, not as used in the phrase “Requisite Investors”) shall be followed by “or
Additional Purchaser”;
17. Section 7.16 — Plan Support. Section 7.16 of the Equity Commitment Agreement is
hereby amended by adding the following language after the second sentence of such Section:
“Each Additional Purchaser, including its respective Affiliates, shall (x) vote, or change
the vote for, as applicable, all Claims (held as of the Voting Record Date (as defined in
the Plan) and actually previously voted) and Interests (as defined in the Plan) it holds to
accept the Plan prior to the Voting Deadline (as defined in the Plan, as it may be extended
in accordance with the Plan, and the Debtors having agreed to extend such Voting Deadline to
permit the Additional
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
Purchasers
to fulfill their obligations under this Section
7.16) and (y) not object to confirmation of the Plan, otherwise commence or support any
proceeding opposing any of the terms of the Plan, or take any other action (directly or
indirectly) that in any way prevents, delays, or impedes the restructuring of the Company as
contemplated by the Plan (including in connection with the Claims Conversion Sub-Plan);
provided that each Additional Purchaser, including each of its Affiliates, shall
support (directly and indirectly) confirmation of the Plan and shall not take any action to
oppose the date of, or seek to reschedule, the Confirmation Hearing currently set by the
Bankruptcy Court on August 31, 2010, which Confirmation Hearing is premised on all Classes
of unsecured claims and Class J (each, as defined in the Plan) voting to accept the Plan;
provided, further, that the Additional Purchasers, including their
respective Affiliates, shall be permitted to object to confirmation of the Plan, and may
change their votes to rejecting votes (and the Debtors and Investors expressly agree not to
contest or oppose such change of votes), solely in the case of a Sustained Objection. In the
case of a Sustained Objection prior to or on August 31, 2010, no Additional Purchaser, nor
any of its Affiliates, shall take any action to oppose the date of, or seek to reschedule,
the alternate Confirmation Hearing (the “Alternate Confirmation Hearing”) currently
set by the Bankruptcy Court on September 28, 2010, which Alternate Confirmation Hearing is
premised on a Class of unsecured Claims or Class J (each, as defined in the Plan) voting to
reject the Plan; provided that, if a Sustained Objection occurs after August 31,
2010, the earliest date on which the Debtors shall seek to commence the Alternate
Confirmation Hearing shall be thirty (30) days following the occurrence of the Sustained
Objection, and each Additional Purchaser, and each of its Affiliates, shall actively
support, and take no action to oppose, such commencement of the Alternate Confirmation
Hearing as early as the thirtieth (30th) day following the occurrence of the Sustained
Objection. Further, as of the date of the Third Amendment, each Additional Purchaser,
including its respective Affiliates, will (a) withdraw, with prejudice, its appeal of the
Order Authorizing the Debtors to Enter Into: (A) a Plan Support Agreement; (B) an Equity
Commitment Agreement and to Pay Certain Fees in Connection Therewith; and (C) a Cash
Recovery Backstop Agreement, dated June 17, 2010 [Docket No. 3427], including any motions to
expedite the same (the “Appeal”); (b) withdraw with prejudice all discovery demands
with regard to the Plan (including, without limitation, all interrogatories, requests to
admit, requests for production of documents, notices of depositions, and all subpoenas and
motions with respect to the same (collectively, “Discovery”)), and seek no further
Discovery with respect to any party in the Proceedings, it being understood that,
notwithstanding the withdrawal with prejudice, each Additional Purchaser, including its
respective Affiliates, may reinitiate the Appeal and its Discovery following the occurrence
of a Sustained Objection, it being further understood that if any Additional Purchaser, or
any of its Affiliates, reinitiates the Appeal or objects to the Plan or changes its votes,
the Additional Purchasers, including their respective Affiliates, shall be deemed to have
relinquished their right to participate in the Additional Purchaser Commitment and their
right to reimbursement for Additional Purchaser Expenses; and (c) at the request of the
Company, and with the Company’s reimbursement of the reasonable, actual and documented fees
and expenses (including reasonable, actual and documented attorneys’ fees) of the Additional
Purchasers related thereto, provide affirmative support of the Plan at any confirmation
trial by filing a pleading and orally specifically stating the Additional Purchasers’
affirmative support of the Plan, which request shall not be made in the case of a Sustained
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
Objection. The Company
and the Investors further agree to withdraw with prejudice all Discovery served against any
Additional Purchasers or their advisors, it being understood that, notwithstanding the
withdrawal with prejudice, the Company and the Investors may reinitiate such Discovery in
the case of a Sustained Objection, it being understood that the Additional Purchasers can
object to such Discovery. To the extent that any Person formally or informally, or the
Bankruptcy Court sua sponte, objects to the Third Amendment or the Plan for any reason, no
Additional Purchaser, nor any of their respective Affiliates, shall be, or shall be deemed
to have been, released from its obligations pursuant to this Section 7.16 and the
Company shall use commercially reasonable efforts to affirmatively support opposition to any
such objection and the Investors shall not support any such objection; provided, to
the extent that any Person’s objection, or the Bankruptcy Court’s sua sponte objection, to
the Third Amendment is sustained only in connection with the payment of Additional Purchaser
Expenses pursuant to Section 4.3(d), the Debtors shall use their commercially
reasonable efforts to support, and the Investors shall not oppose, a section 503(b)(3)(D)
substantial contribution request filed by the Additional Purchasers for the payment of
Additional Purchaser Expenses pursuant to and subject to the conditions and limitations of
Section 4.3(d), which, for the avoidance of doubt, will not include the payment of
any fees or expenses in excess of the limitations on the amount of Additional Purchaser
Expenses payable thereunder. Additionally, each Additional Purchaser agrees to comply with
the terms of Sections 2.2 and 2.3 of the Plan Support Agreement as if such terms were
incorporated herein mutatis mutandis, as if such Additional Purchaser were a Consenting
Senior Noteholder thereunder and as if all references to “Relevant Claims” in Section 2.2 of
the Plan Support Agreement included “Relevant Interests” (as such term is defined in the
Plan Support Agreement). Other than as a result of a Sustained Objection, in the event of
any amendment, supplement, change, or modification of the Plan, on file with the Bankruptcy
Court as of August 6, 2010, that results in a material adverse change or modification to the
treatment of Class J Interests (as defined in the Plan) under the Plan that requires
re-solicitation under section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 or the
rights and privileges of the Additional Purchasers under this Agreement (which rights and
privileges are qualified by the terms of this Agreement), the Additional Purchasers shall
have no further obligations or responsibilities under this Agreement, including, without
limitation, Section 3.1 and Section 7.16, unless the Additional Purchasers
provide their prior written consent.”
18. Section 8.5 — Regulatory Reallocation. Section 8.5 of the Equity Commitment
Agreement shall be deleted and replaced in its entirety as follows:
“If (a) an Investor (an “Over-Allotted Investor”) or an Additional Purchaser is
required to obtain any consent, waiver or approval of a Governmental Entity (pursuant to
Antitrust Laws or otherwise) for the Approval Conditions to be satisfied and such
Over-Allotted Investor or Additional Purchaser has not obtained such consent, waiver or
approval prior to the entry of the Confirmation Order and (b) Requisite Investors determine
(after Good Faith Consultation to the extent the Over-Allotted Investor is a Co-Investor)
that a reduction or elimination of such Over-Allotted Investor’s Allotted Portion or
Additional Purchaser’s Additional Purchaser Shares would either obviate the need for such
Over-Allotted Investor or Additional Purchaser to obtain such consent, waiver or approval or
result in such consent, waiver or approval being
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
obtained (a “Regulatory Cure”) and
the Requisite Investors give
notice of such determination to such Over-Allotted Investor or Additional Purchaser and the
Company at least five (5) Business Days prior to the Effective Date, the Lead Investors
(other than the Over-Allotted Investor) shall have the right, but shall not be obligated,
to, prior to the date that is five (5) Business Days before the Effective Date, (x) reduce
the Over-Allotted Investor’s Allotted Portion or Additional Purchaser’s Additional Purchaser
Shares only to the extent necessary (in such Lead Investors’ good-faith judgment) to achieve
a Regulatory Cure (the amount by which the Over-Allotted Investor’s Allotted Portion or, as
the case may be, Additional Purchaser’s Additional Purchaser Shares, is reduced, the
“Removed Allotted Portion”) and (y) to make arrangements for one or more of the Lead
Investors (other than any Over-Allotted Investors) to assume all of the Removed Allotted
Portion on the terms and subject to the conditions set forth in this Agreement and in such
amounts as may be agreed upon by such Lead Investors (but in no event less than the total
Removed Allotted Portion, such that the Aggregate Commitment of the Investors and the
Additional Purchaser Commitment is not reduced) (such arrangement, a “Regulatory
Reallocation”). Notwithstanding anything to the contrary contained in this Agreement, a
reduction and reallocation of an Over-Allotted Investor’s Allotted Portion of the Equity
Commitment (and revision of Schedule 1 to reflect such reduction and reallocation)
or, as the case may be, an Additional Purchaser’s Additional Purchaser Shares (and revision
of Schedule 7 to reflect such reduction and reallocation) pursuant to a Regulatory
Reallocation in accordance with this Section 8.5 shall not require the consent of such
Over-Allotted Investor or Additional Purchaser.”
19. Section 9.1 — Indemnification Obligations. Section 9.1(b) of the Equity
Commitment Agreement shall be amended by changing the caption to read “Indemnification by the
Investors and the Additional Purchasers” and shall be further amended as follows:
(a) the phrase “or Additional Purchaser, as the case may be” shall be inserted
following the first occurrence of the word “Investor” and each instance of the
phrase “Breaching Investor” shall be replaced with the phrase “Breaching Party”;
(b) the phrase “and Additional Purchasers” shall be inserted following the
first occurrence of the word “Investors”; and
(c) the parenthetical phrase “(not including, for the avoidance of doubt, any
claim by any other Investor, any Related Purchaser, any Ultimate Purchaser or any of
their respective Affiliates)” shall be deleted and replaced with “(not including,
for the avoidance of doubt, any claim by any other Investor, any Related Purchaser,
any Ultimate Purchaser, any Additional Purchaser or any of their respective
Affiliates)”.
20. Section 9.4 — Contribution. Section 9.4 of the Equity Commitment Agreement shall
be amended as follows:
(a) by inserting, immediately following the word “that” in the last sentence of
such Section, the phrase “, with respect to any claims for contribution hereunder
solely among the Investors and the Company,”; and
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
(b) by deleting the phrase “(a) the total value received or proposed to be
received by the Company pursuant to the sale of Investor Shares and Shares in the
Rights Offering” and replacing it with “(a) the total value received or proposed to
be received by the Company pursuant to the sale of Investor Shares, Additional
Purchaser Shares and Shares in the Rights Offering”.
21. Section 10.1 — Termination Rights. Section 10.1 of the Equity Commitment
Agreement is hereby amended as follows:
(a) Section 10.1(b) is amended by inserting the words “and each Additional
Purchaser” following the first occurrence of the word “Investor”;
(b) Section 10.1(d) is amended by inserting the words “and each Additional
Purchaser” following the first occurrence of the word “Investor”.
22. Section 11.1 — Notices. Section 11.1 of the Equity Commitment Agreement is hereby
amended by adding the following language at the end of such Section:
“(e) If to any Additional Purchaser, to the address set forth opposite such Additional
Purchaser’s name on Schedule 7
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇”
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇”
23. Section 11.2 -Assignments; Third Party Beneficiaries. Section 11.2 of the Equity
Commitment Agreement is hereby amended by adding the words “or an Additional Purchaser” immediately
following the words “other than an assignment by an Investor” therein.
24. Section 11.7 — Waivers and Amendments; Rights Cumulative. Section
11.7 of the Equity Commitment Agreement is hereby amended by as follows:
(a) the phrase “and delivery by such reallocating Investors of written notice
to the Company and each other Investor containing a revised Schedule 1
accurately reflecting any changes required by such reallocation” shall be added
immediately following the word “reallocation” in the third sentence of Section 11.7;
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
(b) the following sentences shall be added to the end of Section 11.7:
“Notwithstanding anything to the contrary contained herein, the
definitions of “Additional Purchasers”, “Additional Purchaser
Shares” and “Additional Purchaser Commitment”, Section 3.1(a)
(only the last two sentences), Section 3.3(c)(ii),
Section 3.6(e), Section 4.3(d), Section 7.16
(except for the first two sentences), Section 9.1(b)
(solely as it relates to the rights or obligations of any
Additional Purchaser and only to the extent that such amendment
would be material and discriminatorily adverse to the Additional
Purchasers as a group relative to the Lead Investors as a group),
Section 11.7 (only the sentences inserted into such Section
pursuant to the Third Amendment), Section 11.9(b) (only
subclause (i)(B)), Section 11.9(c)(v), Section 11.12
(only the sentence inserted into such Section pursuant to the
Third Amendment), and Schedule 7 may not be amended or
modified without the prior written consent of each Additional
Purchaser affected by any such amendment or modification, except as
specifically permitted by Section 8.5 to effect a Regulatory
Reallocation. Additionally, no amendment that is material and
discriminatorily adverse to the Additional Purchasers as a group
relative to the Lead Investors as a group (except as specifically
permitted by Section 8.5 to effect a Regulatory
Reallocation) shall be effective without the prior written consent
of any Additional Purchaser affected by such amendment.”
25. Section 11.9 — Specific Performance; Limitations on Remedies. Section 11.9 of the
Equity Commitment Agreement is hereby amended as follows:
(a) Section 11.9(a) is hereby deleted in its entirety and replaced with the
following:
“(a) The Company and each Investor and each Additional
Purchaser acknowledge and agree that, in the event any provision of
this Agreement is not performed by the Company in accordance with
its specific terms or is otherwise breached by the Company
(including any provision requiring the payment of all or a portion
of the Stock Right Premium, the Arrangement Premium, the Alternative
Transaction Damages and/or Transaction Expenses), (i) the Investors
and/or the Additional Purchasers, as the case may be, may not have
an adequate remedy at law in the form of money damages and (ii) in
addition to any other rights and remedies existing in its favor, the
Investors and/or the Additional Purchasers, as the case may be,
shall have the right to bring an action to enforce specifically the
terms and provisions of this Agreement and to obtain an injunction,
injunctions or any form of equitable relief to prevent breaches of
this Agreement.”;
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
(b) Section 11.9(b) is hereby deleted in its entirety and replaced with
the following:
“(b) The Company hereby (i) waives, on behalf of itself and its
Affiliates, any and all common law, statutory or other remedies the
Company or any of its Affiliates may have against any Investor or
any Additional Purchaser in respect of any claims or causes of
actions arising out of or relating to the Rights Offering, this
Agreement and any of the transactions contemplated thereby and
hereby, except for (A) the remedy expressly set forth in Section
11.9(c)(ii) and (B) solely with respect to the Additional
Purchasers, any right to specifically enforce any obligations of an
Additional Purchaser under Section 7.16, which remedies
described in (A) and (B) above the Company agrees shall be its sole
and exclusive remedies for any such claims or causes of action and
(ii) agrees that, to the extent it or any of its Affiliates incur
Losses arising from or in connection with a breach by any Investor
or Additional Purchasers of its representations, warranties,
covenants and agreements contained in this Agreement, in no event
shall the Company or its Affiliates seek to recover any money
damages from (or seek any other remedy based on any legal,
contractual or equitable theory against) such Investor or Additional
Purchaser or any of their respective Affiliates except as otherwise
expressly provided in Section 11.9(c)(ii). Notwithstanding
anything to the contrary contained in this Agreement, the Company
acknowledges and agrees that (i) the liability of the Investors and
the Additional Purchasers under this Agreement shall be several and
not joint and (ii) under no circumstance shall the Investors or the
Additional Purchasers and their respective Affiliates be liable for
any punitive, special, indirect or consequential damages.”;
(c) The introductory phrase of Section 11.9(c) is amended by deleting the
phrase “ and the Investors” and inserting in lieu thereof the phrase “, the
Investors, and the Additional Purchasers”;
(d) Section 11.9(c)(iii) is amended by deleting such Section and replacing it
with the following: “the sole and exclusive remedy available to any Investor or
Additional Purchaser against any other Investor or Additional Purchaser or any of
their respective Affiliates under this Agreement or in connection with the
transactions contemplated hereby shall be pursuant to Article IX”;
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
(e) The following shall be added as a new Section 11.9(c)(v) to the Equity
Commitment Agreement:
“(v) in the event any provision of this Agreement is not
performed by any Additional Purchaser in accordance with its
specific terms or is otherwise breached by an Additional
Purchaser, no Party or any of its Affiliates shall have any
right to enforce specifically with respect to such Additional
Purchaser the terms and provisions of this Agreement (other
than the terms and provisions of Section 7.16) and
shall not be entitled to an injunction, injunctions or any
form of equitable relief to prevent breaches by any
Additional Purchaser of this Agreement (other than to prevent
breaches by an Additional Purchaser of Section
7.16).”; and
(f) Section 11.9(d) shall be amended by (i) deleting the phrase “the Company
acknowledges and agrees that no Person other than the Investors and their permitted
assignees shall have any obligation under this Agreement” and replacing it with “the
Company acknowledges and agrees that no Person other than the Investors and their
permitted assignees and the Additional Purchasers and their permitted assignees
shall have any obligation under this Agreement” and (ii) adding the phrase “or
Additional Purchasers” after each other instance of the word “Investors” in such
Section 11.9(d).
26. Section 11.11 — No Reliance. Section 11.11 of the Equity Commitment Agreement is
hereby amended by deleting such section and replacing it with the following:
“No Reliance. No Investor and no Additional Purchaser or any of their
respective Related Parties shall have any duties or obligations to the other
Investors or Additional Purchasers in respect of this Agreement, the Plan or the
transactions contemplated hereby or thereby, except those expressly set forth
herein. Without limiting the generality of the foregoing, (a) no Investor or
Additional Purchaser or any of their respective Related Parties shall be subject to
any fiduciary or other implied duties to the other Investors or Additional
Purchasers, (b) no Investor or Additional Purchaser or any of their respective
Related Parties shall have any duty to take any discretionary action or exercise any
discretionary powers on behalf of any other Investor or Additional Purchaser, (c)
(i) no Investor or Additional Purchaser any of their respective Related Parties
shall have any duty to the other Investors or Additional Purchasers to obtain,
through the exercise of diligence or otherwise, to investigate, confirm, or disclose
to the other Investors or Additional Purchasers any information relating to the
Company or any of its Subsidiaries or Joint Ventures that may have been communicated
to or obtained by such Investor or Additional Purchaser or any of their Affiliates
in any capacity and (ii) no Investor or Additional Purchaser may rely, and each
confirms that it has not relied, on any due diligence investigation that any other
Investor, Additional Purchaser or any Person acting on behalf of such other Investor
or Additional Purchaser may have conducted with respect to the Company or any of its
Affiliates or any of their respective securities and (d) each Investor and
Additional Purchaser acknowledges that no other Investor or Additional Purchaser is
acting as a placement agent, initial purchaser, underwriter, broker or finder with
respect to its Investor Shares, Allotted Portion of its Equity Commitment,
Additional Purchaser Shares or Additional Purchaser Commitment.”
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
27. Section 11.12 — Publicity. Section 11.12 of the Equity Commitment Agreement is hereby
amended by adding the following at the end thereof: “At all times prior to the Effective Date or
the earlier termination of this Agreement in accordance with its terms, (i) no Additional Purchaser
shall issue any press release or otherwise make any public announcements with respect to the
transactions contemplated by this Agreement without the prior written consent of the Company and
the Requisite Investors; provided, however, that any Additional Purchaser may make any
disclosure or filing, with regard to its obligations hereunder, required by Law to be made by such
Additional Purchaser after good faith consultation with the Company and the Requisite Investors and
(ii) the Company and Requisite Investors shall consult in good faith with the Additional Purchasers
prior to issuing any press release or otherwise making any public announcements with respect to
this Amendment.”
28. Schedule 1 to the Equity Commitment Agreement. Schedule 1 attached to the Equity
Commitment Agreement shall be replaced by the revised Schedule 1, attached as Exhibit I to this
Amendment.
29. Schedule 7 to the Equity Commitment Agreement. Schedule 7, attached as
Exhibit II to this Amendment, shall be added as Schedule 7 to the Equity Commitment
Agreement.
B. Acknowledgements.
1. For the avoidance of doubt, the changes contemplated by this Amendment (collectively, the
“Contemplated Changes”) (a) do not constitute a Change of Recommendation or an Alternate
Transaction and (b) shall be effective as of the date hereof; provided that the failure of the
Bankruptcy Court to approve any such Contemplated Changes (to the extent any objection to the
Contemplated Changes is brought) shall not affect the validity and enforceability of the
Contemplated Changes to Section 7.16 of the Equity Commitment Agreement except as otherwise
specifically provided therein.
2. Each Amending Investor hereby acknowledges, for the avoidance of doubt, that (a) the
Contemplated Changes do not constitute a material adverse change or modification to the treatment
of the Claims of holders of Visteon Notes (as defined in the Plan Support Agreement) under the
Amended Plan (as defined in the Plan Support Agreement) in the form attached to the Plan Support
Agreement as of the date of such agreement, and further agrees and acknowledges that such Amending
Investor shall not take any action to terminate the Plan Support Agreement with respect to such
Amending Investor under Section 7.1(d) thereof or otherwise in connection with or as a result of
the Contemplated Changes and (b) the granting to the Additional Purchasers of the right to purchase
the Additional Purchaser Shares and the reduction in the number of Direct Subscription Shares the
Amending Investors are entitled and obligated to purchase shall not constitute a Transfer to
an Ultimate Purchaser and is not subject to the Section 3.6(c) of the Equity Commitment Agreement.
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
3. Nothing in this Amendment shall be deemed to prohibit any Additional Purchaser from
transferring any existing common stock of the Company held by such Additional Purchaser prior to
the Effective Date, subject to the provisions of Section 7.16 of the Equity Commitment Agreement
(including the incorporation of Sections 2.2 and 2.3 of the Plan Support Agreement therein pursuant
hereto) and subject to applicable securities laws.
4. The Parties to this Amendment hereby agree that each of the Additional Purchasers and
Related Additional Purchasers shall be entitled to become a party to the Registration Rights
Agreement, and upon executing a joinder thereto shall become entitled to the rights and privileges
thereunder as a “Holder” (as defined in the Registration Rights Agreement), concurrently with the
execution of such Registration Rights Agreement by and among the Company and the Investors, their
Related Purchasers and Ultimate Purchasers.
C. Miscellaneous. This Amendment and the Equity Commitment Agreement, together,
contain the complete agreement among the parties hereto and thereto and supersede any prior
understandings, agreements, letters of intent, or representations by or among such parties, written
or oral, that may have related to the subject matter hereof in any way. Except as specifically
amended hereby, the Equity Commitment Agreement, as amended hereby, shall remain in full force and
effect. The terms and provisions of Sections 11.1 through 11.8 and 11.10 of the
Equity Commitment Agreement (including any amendments to such Sections herein) are
incorporated herein by reference as if set forth herein in their entirety and shall apply mutatis
mutandis to this Amendment.
* * * * *
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
IN WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of
the date first written above.
| VISTEON CORPORATION
|
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President & Chief Financial officer | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| CQS CONVERTIBLE AND QUANTITATIVE STRATEGIES MASTER
FUND LIMITED
|
||||
| By: | ||||
| Name: | ||||
| Title: | Authorized Signatory | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| CQS DIRECTIONAL OPPORTUNITIES MASTER FUND LIMITED
|
||||
| By: | ||||
| Name: | ||||
| Title: | Authorized Signatory | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| DEUTSCHE BANK SECURITIES INC. (Solely with Respect to the Distressed Products Group) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| ▇▇▇▇▇▇▇ INTERNATIONAL, L.P.
|
||||
| By: | ▇▇▇▇▇▇▇ International Capital Advisors Inc., as | |||
| Attorney-in-Fact | ||||
| By: | ||||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO., solely with respect to the High Yield Distressed Investing Group |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| KIVU INVESTMENT FUND LIMITED
|
||||
| By: | ||||
| Name: | ||||
| Title: | Authorized Signatory | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| MONARCH MASTER FUNDING LTD
|
||||
| By: | MONARCH ALTERNATIVE CAPITAL LP, its investment advisor | |||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Managing Principal | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| OAK HILL ADVISORS, L.P., on behalf of
certain private funds and separate accounts
that it manages
|
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| SOLUS ALTERNATIVE ASSET MANAGEMENT LP, as investment
advisor to its private funds
|
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | COO/CFO | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| THE LIVERPOOL LIMITED PARTNERSHIP
|
||||
| By: | Liverpool Associates, Ltd., as General Partner | |||
| By: | ||||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
[Second Amendment to the Equity Commitment Agreement — Lead Investor Signature Page]
| ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P.
|
||||
| By: | Alden Global Distressed Opportunities Fund GP, LLC, its general partner | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ▇▇▇▇▇ ARBITRAGE, L.P.
|
||||
| By: | ||||
| Name: | Tal Gurion | |||
| Title: | Managing Director of Investment Manager | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ▇▇▇▇▇ ARBITRAGE OFFSHORE
|
||||
| By: | ||||
| Name: | Tal Gurion | |||
| Title: | Managing Director of Investment Manager | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ARMORY MASTER FUND LTD.
|
||||
| By: | Armory Advisors LLC, its Investment Manager | |||
| By: | ||||
| Name: | ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Manager | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CAPITAL VENTURES INTERNATIONAL
|
||||
| By: | Susquehanna Advisors Group, Inc., its authorized agent | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CASPIAN CAPITAL PARTNERS, L.P.
|
||||
| By: | Mariner Investment Group, as Investment Advisor | |||
| By: | ||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Principal | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CASPIAN SELECT CREDIT MASTER FUND, LTD.
|
||||
| By: | Mariner Investment Group, as Investment Advisor | |||
| By: | ||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Principal | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CITADEL SECURITIES LLC
|
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CSS, LLC
|
||||
| By: | ||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Partner | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CUMBERLAND PARTNERS By: CUMBERLAND GP LLC, its General Partner |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CUMBERLAND BENCHMARKED PARTNERS, L.P. By: CUMBERLAND BENCHMARKED GP LLC, its General Partner |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| LONGVIEW PARTNERS B, L.P. By: LONGVIEW B GP LLC, its General Partner |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ▇▇▇▇▇▇ INTERNATIONAL S.A. By: CUMBERLAND ASSOCIATES LLC, as Investment Adviser |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CYRUS EUROPE MASTER FUND LTD. By: Cyrus Capital Partners, L.P. as Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD. By: Cyrus Capital Partners, LP as Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CRESCENT 1 L.P. By: Cyrus Capital Partners, L.P. as Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CRS FUND LTD. By: Cyrus Capital Partners, L.P. as Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| CYRUS OPPORTUNITIES MASTER FUND II, LTD. By: Cyrus Capital Partners, L.P. as Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| HALBIS DISTRESSED OPPORTUNITIES MASTER FUND, LTD. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| MARINER LDC By: Mariner Investment Group, as Investment Advisor |
||||
| By: | ||||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Principal | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
MARINER LDC By: Riva Ridge Capital Management LP, as Investment Manager By: Riva Ridge GP LLC, GP to the Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| MERCED PARTNERS LIMITED PARTNERSHIP By: Global Capital Management, Inc., General Partner |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇ ▇. Rock | |||
| Title: | Authorized Representative | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
MERCED PARTNERS II, L.P. By: Lydiard Partners, L.P., General Partner By: Tanglewood Capital Management, Inc., General Partner |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇ ▇. Rock | |||
| Title: | Authorized Representative | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| NEWFINANCE ALDEN SPV By: Alden Global Capital, its Trading Advisor |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| QVT FUND LP By: QVT Associates GP LLC, its general partner |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| QUINTESSENCE FUND L.P. By: QVT Associates GP LLC, its general partner |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
RIVA RIDGE MASTER FUND, LTD. By: Riva Ridge Capital Management LP, as Investment Manager By: Riva Ridge GP LLC, GP to the Investment Manager |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| SENECA CAPITAL, L.P. |
||||
| By: | ||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | CFO | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| SILVER POINT CAPITAL, L.P. on behalf of its affiliates and related funds |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| SPECTRUM INVESTMENT PARTNERS, L.P. By: Spectrum Group Management LLC, its general partner |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Managing Member | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| SIPI MASTER LTD. |
||||
| By: | Spectrum Investment Management LLC, | |||
| its investment manager | ||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Managing Member | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ▇▇▇▇▇ CRITERION MASTER FUND LTD. |
||||
| By: | ▇▇▇▇▇ Criterion Management LLC | |||
| Its: | Investment Manager | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ▇▇▇▇▇ MASTER FUND LTD. |
||||
| By: | ▇▇▇▇▇ Offshore Management LLC | |||
| Its: | Investment Manager | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
THE SEAPORT GROUP LLC PROFIT SHARING PLAN |
||||
| By: | Armory Advisors LLC, its Investment Advisor | |||
| By: | ||||
| Name: | ▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Manager | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
UBS SECURITIES LLC (solely with respect to the Distressed Debt Trading Group) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
VENOR CAPITAL MASTER FUND LTD. |
||||
| By: | ||||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
WHITEBOX HEDGED HIGH YIELD PARTNERS, L.P. |
||||
| By: | Whitebox Hedged High Yield Advisors, LLC, its | |||
| General Partner | ||||
| By: | Whitebox Advisors, LLC, its Managing Member | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
WHITEBOX COMBINED PARTNERS, L.P. |
||||
| By: | Whitebox Combined Advisors, LLC, its | |||
| General Partner | ||||
| By: | Whitebox Advisors, LLC, its Managing Member | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
| ▇.▇. ▇▇▇▇▇▇▇▇ & CO. | ||||
| BY: | ▇.▇. ▇▇▇▇▇▇▇▇ & Co. GP, L.L.C., its general partner | |||
| BY: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Managing Member | ||||
| DAVIDSON KEMPNER INTERNATIONAL, LTD. | ||||
| BY: | Davidson
Kempner International Advisors, L.L.C., its Investment Manager |
|||
| BY: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Managing Member | ||||
| DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES FUND LP | ||||
| BY: | DK GROUP LLC, its General Partner | |||
| BY: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Managing Member | ||||
| DAVIDSON KEMPNER PARTNERS | ||||
| BY: | MHD Management Co., its general partner | |||
| BY: | MHD Management Co. GP, L.L.C., its general partner | |||
| BY: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Managing Member | ||||
| DAVIDSON KEMPNER INSTITUTIONAL PARTNERS, L.P. | ||||
| BY: | Davidson Kempner Advisors, Inc., its General Partner | |||
| BY: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Principal | ||||
| DAVIDSON KEMPNER DISTRESSED OPPORTUNITIES INTERNATIONAL LTD. | ||||
| BY: | DK Management Partners LP, its Investment Manager | |||
| BY: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Partner | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
BRIGADE LEVERAGED CAPITAL STRUCTURES FUND LTD. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
PLAINFIELD OC MASTER FUND LIMITED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
PLAINFIELD LIQUID STRATEGIES MASTER FUND LIMITED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
PLAINFIELD SPECIAL SITUATIONS MASTER FUND II LIMITED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
EXHIBIT I
SCHEDULE I TO THE EQUITY COMMITMENT AGREEMENT (omitted)
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]
EXHIBIT II
SCHEDULE 7 TO THE EQUITY COMMITMENT AGREEMENT (omitted)
[Second Amendment to the Equity Commitment Agreement — Co-Investor Signature Page]