EXHIBIT 10.1
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CONTRIBUTION AGREEMENT
among
LARRY J. WINGET AND THE LARRY J. WINGET LIVING TRUST,
THE OTHER TRANSFERORS NAMED HEREIN,
and
VENTURE HOLDINGS COMPANY LLC
AND ITS DOMESTIC SUBSIDIARIES
Dated as of September 22, 2003
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TABLE OF CONTENTS
Article I DEFINITIONS............................................................................................2
Section 1.1 Definitions.......................................................................................2
Article II CONTRIBUTION OF ASSETS...............................................................................10
Section 2.1 Contribution of Equity Interests and Transferred Assets..........................................10
Article III ASSUMPTION OF LIABILITIES...........................................................................10
Section 3.1 Assumed Liabilities..............................................................................10
Article IV CONSIDERATION AND PAYMENT............................................................................11
Section 4.1 Consideration....................................................................................11
Article V RECEIVABLES...........................................................................................11
Section 5.1 Related Party Receivables and Payables...........................................................11
Article VI REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRANSFERORS........................................11
Section 6.1 Representations and Warranties of the Transferors................................................11
Section 6.2 Covenants of the Transferors.....................................................................24
Article VII REPRESENTATIONS, WARRANTIES AND COVENANTS OF VENTURE HOLDINGS.......................................29
Section 7.1 Representations and Warranties of Venture Holdings...............................................29
Section 7.2 Venture Holdings Covenants.......................................................................30
ARTICLE VII-A MUTUAL COVENANTS OF THE PARTIES...................................................................30
Section 7.1A Mutual Covenants................................................................................30
Article VIII LEASE ESCROW.......................................................................................32
Section 8.1 Leases...........................................................................................32
Article IX CONDITIONS TO CLOSING................................................................................33
Section 9.1 Joint Conditions to the Obligations of the Transferors and Venture Holdings......................33
Section 9.2 Conditions to Obligations of the Transferors.....................................................34
Section 9.3 Conditions to Obligations of Venture Holdings....................................................35
Article X TERMINATION...........................................................................................37
Section 10.1 Termination.....................................................................................37
Section 10.2 Effect of Termination...........................................................................38
Article XI INDEMNIFICATION......................................................................................38
Section 11.1 Indemnification from the Transferors............................................................38
Section 11.2 Limitations on Transferors' Indemnification Obligations.........................................39
Section 11.3 Indemnification from Venture Holdings...........................................................40
Section 11.4 Mitigation......................................................................................40
Section 11.5 Calculation of Losses...........................................................................40
Section 11.6 Procedures Relating to Indemnification for Third Party Claims...................................40
Section 11.7 Other Claims....................................................................................41
Section 11.8 Knowledge.......................................................................................42
Article XII MISCELLANEOUS PROVISIONS............................................................................42
Section 12.1 Amendment.......................................................................................42
Section 12.2 Survival of Representations, Warranties and Agreements..........................................42
Section 12.3 Access to Records After Closing Date; Disposal of Records.......................................42
Section 12.4 Governing Law...................................................................................42
Section 12.5 Notices.........................................................................................42
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Section 12.6 Severability of Provisions.....................................................................44
Section 12.7 Assignment.....................................................................................44
Section 12.8 Further Assurances.............................................................................44
Section 12.9 No Waiver; Cumulative Remedies.................................................................45
Section 12.10 Specific Performance...........................................................................45
Section 12.11 Counterparts...................................................................................45
Section 12.12 Binding Effect; Third-Party Beneficiaries......................................................45
Section 12.13 Merger and Integration.........................................................................45
Section 12.14 Consent to Jurisdiction........................................................................46
Section 12.15 Headings.......................................................................................46
Section 12.16 Tax Matters....................................................................................46
Section 12.17 Release........................................................................................47
Section 12.18 Schedules and Exhibits.........................................................................48
Section 12.19 Plan to Control................................................................................48
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EXHIBIT LIST
Exhibit A -- Winget Entities
Exhibit B -- Transferring Winget Entities
Exhibit C -- [Intentionally Omitted]
Exhibit D -- Retained Property (including Retained Entities)
Exhibit E -- Transferred Winget Entities
Exhibit F -- Transferred Assets
Exhibit G -- [Intentionally Omitted]
Exhibit H -- Harper Lease
Exhibit I -- Masonic Lease
Exhibit J -- Equipment Usage Agreement
Exhibit K -- Escrow Agreement
Exhibit L -- Form of Confirmation Order
Exhibit M -- Employment Agreement
Exhibit N -- Form of Operating Agreement
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SCHEDULES
Schedule 1.1 -- Permitted Liens
Schedule 4.1 -- Allocation of Winget Interests
Disclosure Schedule
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CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT, dated as of September 22, 2003 (the
"Agreement"), is made among Larry J. Winget ("Larry J. Winget") and the Larry J.
Winget Living Trust (together with Larry J. Winget, "Winget"), as first parties,
the Transferring Winget Entities (as defined herein), as second parties, and
Venture Holdings Company, LLC, a Michigan limited liability company ("Venture
Holdings") and its domestic subsidiaries (collectively with Venture Holdings,
the "Debtors"), as third parties. Winget and the Transferring Winget Entities
are sometimes referred to herein as the "Transferors".
A. Winget, directly or indirectly, is the sole record and beneficial
owner of various entities, defined in Section 1.1 as the Winget Entities, which
conduct business with the Venture Entities. Winget, directly or indirectly, is
also the sole record and beneficial owner of the Venture Entities.
B. In connection with the restructuring of the debt obligations of the
Debtors pursuant to the Plan (as herein defined), the Debtors desire that the
ownership of certain of the Winget Entities (which are defined in Section 1.1 as
the "Transferred Winget Entities"), and certain assets and/or property currently
used in or related to the Business of the Transferring Winget Entities and
listed on Exhibit F attached hereto (the "Transferred Assets"), be combined with
the ownership of the Venture Entities under a single entity, all of the common
equity of which shall be owned by the Transferors.
C. In order to effect the transfer of ownership described in Recital B,
after the date hereof and prior to the Closing Date, as herein defined, Venture
Holdings shall cause Venture Companies, LLC ("Venture Delaware") to be organized
under the Delaware Limited Liability Company Act. On the terms and subject to
the conditions herein contained, on the Closing Date the Transferors shall
transfer or cause to be transferred to Venture Delaware their entire right,
title and interest in and to the Transferred Winget Entities and the Transferred
Assets, and Venture Holdings shall cause Venture Delaware to assume certain
liabilities of the Transferors and issue to the Transferors the Winget Interests
(as herein defined). Pursuant to the Plan, all of the equity interests in
Venture Holdings shall be transferred to Venture Delaware.
D. It is the intent of the parties that the Transferors shall transfer
their entire right, title and interest in and to the Transferred Winget Entities
and Transferred Assets to Venture Delaware, which will be taxed as a
partnership, in exchange for certain interests in Venture Delaware and that such
contributions of property to Venture Delaware will qualify for non-recognition
treatment under ss. 721 of the Internal Revenue Code of 1986, as amended (the
"Code") All aspects of the contributions of property and any assumption of any
liability shall be implemented and construed in accordance with the intent to
qualify for ss. 721 non-recognition treatment.
E. The Debtors will complete the preparation of, and file, the Plan
promptly after the execution of this Agreement and in reliance hereon. Subject
to the terms and conditions set forth in this Agreement and the Plan, the
Transferors will support the Plan and the Debtors will proceed with the Plan.
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In consideration of the premises and the mutual agreements set forth
herein, it is hereby agreed by and between the Transferors and the Debtors as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. All capitalized terms used herein shall have the
meanings specified herein and shall include in the singular number the plural
and in the plural number the singular.
"Actual Tax Amount" is defined in Section 6.2(k).
"Agent" shall mean Bank One, N.A., as administrative agent for the
Pre-Petition Lenders.
"Agreement" is defined in the Preamble.
"Alabama Project" means that project anticipated to be developed and
built for the purpose of supplying parts to Hyundai Motor Manufacturing Alabama,
LLC from a site in Alabama.
"Assumed Liabilities" is defined in Section 3.1(a).
"Audited Venture Financial Statements" is defined in Section 6.1(x).
"Audited South Africa/Australia Financial Statements" is defined in
Section 6.1(t).
"Australia" means Venture Asia Pacific (Pty.) Ltd. and its
subsidiaries.
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978, as amended
from time to time.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Eastern District of Michigan, Southern Division.
"Bank Steering Committee" means the steering committee formed by the
Agent under the Existing Bank Facility, as constituted from time to time.
"Business" means (i) with respect to the Venture Entities, the supply,
design, system integration and manufacture of interior and exterior plastic
components, modules and systems for the automotive industry, (ii) with respect
to the Winget Entities (other than South Africa and Australia), the ownership of
real estate, machinery and equipment and intellectual property and the
performance of manufacturing related and administrative services (including
design work and tooling) and marketing formats integral to the supply, design,
system integration and manufacture of interior and exterior plastic components,
modules and systems for the automotive industry, and (iii) with respect to South
Africa and Australia, the supply, design, system integration and manufacture of
interior and exterior plastic components, modules and systems for the automotive
industry.
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"Cancelled Sales Representation Agreements" means that certain Sales
Representation Agreement effective as of January 1, 1991 between Venture
Industries Corporation and VSE, and any amendments thereto; that certain Sales
Representation Agreement effective as of January 1, 1991 by and between Vemco,
Inc. and VSE, and any amendments thereto; and that certain Sales Representation
Agreement effective as of January 1, 1999 by and between Venture Holdings
Corporation and VSE, and any amendments thereto.
"Cap" is defined in Section 11.2(a).
"Closing Date" means the date on which the transactions contemplated
hereunder shall occur, which shall be a date within three business days after
the Plan has become effective by its terms and all other conditions set forth in
Article IX have been satisfied or waived by the parties. For the purposes of
this Agreement, the transactions to occur on the Closing Date shall be deemed to
have occurred on 12:01 a.m. on the Closing Date.
"Code" is defined in the Preamble.
"Common Membership Interests" means the common equity interests in
Venture Delaware.
"Confirmation Order" means an order confirming the Plan in the form
agreed to in accordance with Sections 7.1A(a)(i) and 9.1(d) and which when
mutually agreed to shall be attached to this Agreement as Exhibit L.
"Creditors' Committee" means the official committee of unsecured
creditors appointed pursuant to Section 1102(a) of the Bankruptcy Code in the
case under chapter 11 of the Bankruptcy Code commenced by the Debtors on March
28, 2003 in the Bankruptcy Court, styled In re: Venture Holdings Company, LLC.,
et al. and bearing case number 03-48939.
"Creditors' Trust" means the trust which is created pursuant to the
Plan to be administered by the trustee thereof with the advice and/or direction
of a trust advisory board, all as more specifically set forth in the Plan.
"Creditors' Warrant" means a warrant to be issued to the Creditors'
Trust to acquire, for nominal consideration, a percentage of Common Membership
Interests of Venture Delaware in accordance with the Plan.
"Debtors" is defined in the Preamble.
"Deductible" is defined in Section 11.2(a).
"Deliverables" is defined in Section 6.2(g).
"Deluxe" means Deluxe Pattern Corporation.
"Disclosure Schedule" means the schedule delivered pursuant to Article
VI.
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"Disclosure Statement" means the Disclosure Statement that relates to
and accompanies the Plan, as it may be supplemented, amended or modified from
time to time.
"Discussion Term Sheet" means that certain Discussion Term Sheet dated
as of July 31, 2003.
"Distributed Amounts" is defined in Section 6.2(k).
"Employee Benefit Plan" means each employee bonus, retirement, pension,
profit sharing, stock option, stock appreciation, stock purchase, incentive,
deferred compensation, hospitalization, medical, dental, vision, life and other
health and disability (whether provided by insurance or otherwise), severance,
termination and other plan, program, arrangement, policy or payroll practice
providing any remuneration or benefits (other than current cash compensation),
including without limitation, each employee benefit plan as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is both (A) (i) maintained by any Winget Entity or any person,
corporation, partnership, or other entity that would be aggregated with, or
treated as the same employer as, any Winget Entity for any purpose under the
Code or ERISA (an "ERISA Affiliate") or (ii) to which any Winget Entity or an
ERISA Affiliate contributes or has contributed and (B) one under which any
employee of any Winget Entity participates or had accrued any rights or under
which any Winget Entity is liable in respect of an employee of any Winget Entity
with respect to his or her employment with such Winget Entity, but excluding any
Employee Benefit Plan maintained by a Venture Entity.
"Employment Agreement" means an employment agreement (i) pursuant to
which, among such other terms as are mutually agreed to, (A) commencing on (and
effective only upon the occurrence of) the Closing Date, Venture Delaware shall
employ Larry J. Winget as its non-executive chairman for a two year term, at a
base salary of $600,000 per year, and (B) Larry J. Winget will be entitled to
severance pay equal to one year's salary in the event of termination by Venture
Delaware without just cause or by Larry J. Winget following a constructive
termination; (ii) which is in the form agreed to in accordance with Section
7.1A(a)(iv) of this Agreement; and (iii) which when mutually agreed to shall be
attached to this Agreement as Exhibit M.
"Environmental Laws" is defined in Section 6.1(q).
"Equipment Usage Agreement" is defined in Section 8.1(c).
"Equity Interests" shall mean the capital stock, partnership interests,
limited liability company interests, or other ownership interests in, the
Transferred Winget Entities.
"Escrow Agent" is defined in Section 8.1(d).
"Escrow Agreement" is defined in Section 8.1(d).
"Excepted Businesses" means Venture Alabama, LLC, Nova Industries,
Inc., Universal Plastic Industries, Inc. (a/k/a Universal Venture Automotive),
Satyam Venture Engineering Services and VIC Management, L.L.C. (to the extent of
its current investment in Atlantic Automotive), in each case (excluding Venture
Alabama, LLC) with respect to the business being
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conducted by such entities which is competitive with the Venture Business on the
date hereof, only to the extent of such business as conducted on the date
hereof; provided, however, that Venture Alabama, LLC shall only be deemed an
"Excepted Business" if Larry J. Winget signs an option agreement (which includes
a non-compete covenant) with respect to the acquisition by Venture Holdings of
all of the membership interests in Venture Alabama, LLC within 2 weeks after the
date hereof.
"Excluded Liabilities" is defined in Section 3.1(b).
"Existing Bank Facility" The obligations under the Credit Agreement
among Venture Holdings as borrower, the Pre-Petition Lenders and Bank One, NA,
as administrative agent, dated as of May 27, 1999, and all documents executed
ancillary thereto, in each case as amended through the date hereof.
"Exit Financing" means the exit financing facility obtained by the
reorganized Debtors pursuant to Section 9.1(d).
"Foreign Plan" means any plan, arrangement or contract or other program
maintained by any Transferred Winget Entity outside of the United States for the
purpose of providing or otherwise making available retirement or other benefits
to employees, but excluding statutory plans.
"GAAP" is defined in Section 6.1(u).
"General Partners" is defined in Section 8.1(a).
"Governmental Authority" means any government, any governmental entity,
department, commission, board, agency or instrumentality and any court, tribunal
or judicial or arbitral body whether federal, state, local or foreign.
"Governmental Order" means any order, judgment, injunction, owner,
stipulation, determination or award entered by or with any Governmental
Authority.
"Harper Lease" is defined in Section 8.1(a).
"Harper Partners" is defined in Section 8.1(a).
"Harper Property" shall mean the real estate commonly known as 34501
Harper, Mt. Clemens, Michigan.
"Heavy" means Venture Heavy Machinery Limited Liability Company.
"IAS" is defined in Section 6.1(t).
"Income Tax" means any Tax based on or measured by income (including
any franchise Tax which is so based).
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"Indemnifying Party" means a party to this Agreement having an
obligation of indemnification pursuant to Article XI.
"Indemnified Party" means a party to this Agreement who is entitled to
receive indemnification pursuant to Article XI.
"Indemnity Termination Date" is defined in Section 11.2(b).
""Interim Financial Statements" is defined in Section 6.1(y).
"Knowledge" as applied to the Transferors, means those facts or
circumstances actually known by Larry J. Winget, or any of Messrs. Krieger,
Wilks, Hanson, Cane, Demiro or Walker, and, with respect to any entity organized
under the laws of a country other than the United States, the directors and
executive officers of such foreign entity, in each case, after due inquiry.
"Knowledge", when applied to Venture Holdings, means those facts and
circumstances actually known by Messrs. Butler, Bione, MacKenzie, or any member
of the board of directors or managers of Venture Holdings (exclusive of Larry J.
Winget), in each case after due inquiry.
"Larry J. Winget" is defined in the Preamble.
"Leases" is defined in Section 8.1(c).
"Liabilities" is defined in Section 6.1(ff).
"Liens" means any lien, security interest, or other charge or
encumbrance of any kind, or any other type of preferential arrangement, or other
encumbrance on title.
"Limited Partners" is defined in Section 8.1(a).
"Losses" mean any and all actions, costs, damages, disbursement,
expense, liability, loss, deficiency, obligation, penalty or settlement of any
kind or nature, including but not limited to, interest or other carrying costs,
penalties, and reasonable legal, accounting and other professional fees and
expenses incurred in the investigation, collection, prosecution and defense of
claims and amounts paid in settlement, excluding any indirect or consequential
damages (including diminution in value) except to the extent such damages are
recovered by third parties.
"Masonic Lease" is defined in Section 8.1(b).
"Masonic Property" shall mean the real estate commonly known as 17085
Masonic, Fraser, Michigan.
"Material Adverse Effect" means (i) with respect to the Winget
Entities, a material adverse effect on the business, results of operations or
financial condition of the Transferred Winget Entities and the Transferred
Assets, taken as a whole and (ii) with respect to Venture Holdings, a material
adverse effect on the business, results of operations or financial condition of
the Venture Entities, taken as a whole.
"Material Contract" is defined in Section 6.1(l).
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"Operating Agreement" means the operating agreement of Venture Delaware
which (i) shall set forth the rights and preferences of the Common Membership
Interests and the Preferred Membership Interests; (ii) is in the form agreed to
in accordance with Section 7.1A(a)(iii) of this Agreement; and (iii) when
mutually agreed to shall be attached to this Agreement as Exhibit N.
"Organizational Documents" means (a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the articles of organization
or certificate of formation and the operating agreement of a limited liability
company; (c) the partnership agreement and any statement of partnership of a
general partnership; (d) the limited partnership agreement and the certificate
of limited partnership of a limited partnership; (e) the certificate of trust
and the trust agreement of a trust; (f) any charter or similar document adopted
or filed in connection with the creation, formation, or organization of an
entity; (g) documents of a similar nature to the foregoing which relate to any
foreign entity; and (h) any amendment to any of the foregoing, including without
limitation the Operating Agreement.
"Owned Real Property" is defined in Section 6.1(f).
"PBGC" is defined in Section 6.1(k)(E).
"Permitted Liens" means (x) Liens to be disclosed on Schedule 1.1, and
(y) Liens existing on the date hereof and securing liabilities set forth in the
Audited Venture Financial Statements, the Audited South Africa/Australia
Financial Statements or the Interim Financial Statements.
"PIM" is defined in Section 6.1(dd).
"Plan" means that certain Debtors' Joint Plan of Reorganization, in the
form agreed to in accordance with Section 7.1A(a)(ii) and filed with the
Bankruptcy Court.
"Post-Signing Scheduling Period" means (x) with respect to the Winget
Entities other than South Africa and Australia, the period commencing on the
date of this Agreement and terminating at 11:59 p.m. Eastern Standard Time on
the date which is 21 days from the date hereof, and (y) with respect to South
Africa and Australia, the period commencing on the date of this Agreement and
terminating at 11:59 p.m. Eastern Standard Time on (1) with respect to
information required to be disclosed pursuant to Section 6.1(l), the date which
is 45 days from the date hereof, and (2) with respect to all other matters, the
date which is 30 days from the date hereof.
"Preferred Membership Interests" means the preferred membership
interests in Venture Delaware to be issued to the Pre-Petition Lenders pursuant
to the Plan.
"Pre-Petition Lenders" means the financial institutions party to the
Existing Bank Facility, as lenders, including Bank One, N.A., as the
administrative agent thereunder, and their respective successors and assigns.
"Real Property Leases" is defined in Section 6.1(g).
"Release" is defined in Section 12.17(a).
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"Related Party Transaction" means a transaction between a Venture
Entity or a Transferred Winget Entity, on the one hand, and Winget, a Retained
Entity or an affiliate of Winget or a Retained Entity (other than Venture
Entities or Transferred Winget Entities), on the other hand.
"Released Claims" is defined in Section 12.17(a).
"Released Parties" is defined in Section 12.17(a).
"Releasing Party" is defined in Section 12.17(a).
"Relevant Date" is defined in Section 6.2(f).
"Restricted Period" is defined in Section 6.2(f).
"Restructuring Professionals" means the financial advisors,
accountants, lawyers and investment bankers retained by any Venture Entity in
connection with the restructuring of the Debtors.
"Retained Entity" shall mean (w) the Transferring Winget Entities, (x)
those other Winget Entities owned, directly or indirectly, wholly or partially,
by Winget or members of his family and which are listed on Exhibit D, and (y)
without limitation of the generality of clauses (w) and (x), each entity
beneficially owned, directly or indirectly, by Winget which is not engaged in
the Business or otherwise conducting business with the Venture Entities.
"Retained Property" means the assets, rights, properties and goodwill
of the Transferors listed on Exhibit D hereto and the Retained Entities as
listed on Exhibit D.
"Review Period" is defined in Section 6.2(g).
"South Africa" means Venture Otto South Africa (Pty.) Ltd.
"Subsequent Financial Statements" is defined in Section 6.1(v).
"Taxes" means all taxes, charges, fees, levies or other assessments
including income, excise, property, transfer, payroll, withholding, employment,
value added, capital, net worth, estimated, sales, use and franchise taxes,
imposed by the United States, or any state, county, local or foreign government
or subdivision or agency thereof, and including any interest, penalties or
additions attributable thereto, whether or not disputed.
"Termination Date" is defined in Section 10.1.
"Third Party Claim" means a claim or demand made by any third person
against an Indemnified Party for which indemnification is required to be made
under Article XI.
"Transferors" is defined in the Preamble.
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"Transferred Assets" shall mean those assets and properties of the
Transferors listed on Exhibit F attached hereto.
"Transferred Winget Entities" shall mean those entities listed on
Exhibit E attached hereto (including each subsidiary of such entity, whether or
not listed thereon). For purposes of Article V, Sections 6.1, 7.2(a) and 9.2(d),
each reference to Transferred Winget Entities shall be deemed to include VSE.
"Transferring Winget Entities" shall mean those entities listed on
Exhibit B attached hereto.
"Unit Trust" is defined in Section 6.1(dd).
"Venco" is defined in Section 6.1(dd).
"Venture B Assets" shall mean all assets (net of all liabilities) of
Peguform GmbH & Co., K.G. and related entities located in Germany, Spain, Mexico
and Brazil.
"Venture Business" is defined in Section 6.2(f).
"Venture Delaware" is defined in the Preamble.
"Venture Entities" means Venture Holdings and its subsidiaries.
"Venture Holdings" is defined in the Preamble.
"Venture Indemnified Parties" is defined in Section 11.1(a).
"Venture Industries" is defined in Section 8.1(a).
"VIC Receivable" is defined in Section 3.1(b).
"VSE" means Venture Sales & Engineering Corp.
"VSE Receivable" is defined in Section 3.1(b).
"Winget" is defined in the Preamble.
"Winget Assets" means (x) all of the assets and properties of the
Transferred Winget Entities and (y) the Transferred Assets.
"Winget Entities" means the entities listed in Exhibit A attached
hereto, including the Transferred Winget Entities.
"Winget Entities Financial Statements" is defined in Section 6.1(u).
"Winget Indemnified Parties" is defined in Section 11.3.
"Winget Interests" is defined in Section 4.1.
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"2002 Financial Statements" is defined in Section 6.1(z).
ARTICLE II
CONTRIBUTION OF ASSETS
Section 2.1 Contribution of Equity Interests and Transferred Assets.
(a) Pursuant to the Plan, and upon the terms and subject to the
conditions set forth herein and in the Plan, on the Closing Date the Transferors
shall assign, transfer and convey to Venture Delaware and Venture Holdings shall
cause Venture Delaware to accept from the Transferors, all of the Transferors'
right, title and interest in, to and under the Equity Interests and the
Transferred Assets, free and clear of all Liens except Permitted Liens.
(b) Each Transferor agrees that, at its own expense, it will promptly
execute and deliver all instruments and documents and take all actions as may be
reasonably necessary or as Venture Holdings or Venture Delaware may reasonably
request in order to perfect or protect the interest of Venture Delaware in the
Equity Interests and Transferred Assets transferred hereunder by such Transferor
or to enable Venture Delaware to exercise or enforce any of its rights
hereunder.
ARTICLE III
ASSUMPTION OF LIABILITIES
Section 3.1 Assumed Liabilities.
(a) Pursuant to the Plan, and upon the terms and subject to the
conditions set forth herein, on the Closing Date, Venture Holdings shall cause
Venture Delaware to assume and agree to pay or otherwise discharge only those
obligations or liabilities (w) that first arise after the Closing Date under any
contracts or agreements included in the Transferred Assets, (x) with respect to
Transferred Assets consisting of accrued real estate and personal property taxes
that are not yet due and owing, and (y) with respect to VSE, accrued payroll
expenses of any employee of VSE who accepts an offer of employment made by
Venture Holdings, in its sole discretion, and to the extent reflected in the
financial statements of VSE to be delivered pursuant to Section 6.1(v) or
arising in the ordinary course of business after the dates of such financial
statements, but, in each case, excluding the Excluded Liabilities (the "Assumed
Liabilities"). The terms of employment with respect to any employee of VSE to
whom an offer of employment is made by Venture Holdings, including without
limitation with respect to compensation and fringe benefits, shall be consistent
with those applicable to employees of the Venture Entities having similar
responsibilities and seniority. The parties acknowledge that the Transferred
Winget Entities shall continue to be obligated for their respective obligations
and liabilities except to the extent such obligations or liabilities constitute
Excluded Liabilities or are otherwise subject to the Transferors' indemnity
obligation as set forth in Section 11.1.
(b) Venture Delaware shall not assume and the Transferred Winget
Entities shall not be liable following the Closing Date for: (u) that certain
liability of Heavy to VSE (the "VSE Receivable"), which as of July 31, 2003 was
in the approximate amount of $930,974, in such amount as may exist on the
Closing Date, and that certain liability of Heavy to VIC
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Management, L.L.C. (the "VIC Receivable"), which as of July 31, 2003, was in the
approximate amount of $2,245,385, in such amount as may exist on the Closing
Date; (v) that certain liability of VSE to a former sales representative
reflected on the books and records of VSE of approximately $150,000, (w) Taxes
that are the obligation of the Transferors pursuant to Section 12.16; (x)
obligations and liabilities which are subject to the Transferors' indemnity
obligation as set forth in Section 11.1; (y) obligations and liabilities to the
extent relating to or arising or resulting from the Retained Property; or (z)
obligations and liabilities relating to employment of Larry J. Winget or his
family members by any Winget Entity (collectively, the "Excluded Liabilities").
ARTICLE IV
CONSIDERATION AND PAYMENT
Section 4.1 Consideration. The consideration for the Transferred Winget
Entities and Transferred Assets conveyed as of the Closing Date to Venture
Delaware by the Transferors under this Agreement, and the other covenants of the
Transferors set forth herein, shall be (a) the delivery to the Transferors of
100% of the Common Membership Interests of Venture Delaware (the "Winget
Interests"), and (b) the assumption of the Assumed Liabilities by Venture
Delaware. The Winget Interests shall be allocated among the Transferors as set
forth in Schedule 4.1. Venture Holdings shall cause Venture Delaware to issue
the Winget Interests to the Transferors.
ARTICLE V
RECEIVABLES
Section 5.1 Related Party Receivables and Payables. Each Debtor
acknowledges that as of the date hereof and/or as of the Closing Date, it may
owe certain amounts to a Transferor, a Retained Entity or a Transferred Winget
Entity. To the extent that amounts are determined by final order of the
Bankruptcy Court to be owed by (a) the Transferred Winget Entities (or any of
them) to the Debtors (taking into account all defenses, offsets, counterclaims
and similar rights), (b) the Transferors or Retained Entities (or any of them)
to the Debtors (taking into account all defenses, offsets, counterclaims and
similar rights), or (c) the Debtors (or any of them) to the Transferred Winget
Entities, the Transferors or the Retained Entities (taking into account all
defense, offsets, counterclaims and similar rights) such amounts, in each case,
shall be factored into the determination of the value of the Creditors' Warrant
or shall be factored into the amounts available in the Creditors' Trust, as the
case may be, pursuant to the terms of the Plan. Except as expressly provided
herein, the rights of the Transferors, the Transferred Winget Entities and the
Retained Entities shall not be impaired or affected by this Article 5.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE TRANSFERORS
Section 6.1 Representations and Warranties of the Transferors. The
Transferors jointly and severally make the representations and warranties set
forth in this Section 6.1. Subject to Section 12.18, all of such representations
and warranties shall be qualified by the matters contained in the schedule to be
delivered by the Transferors pursuant to Section 6.2(g),
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and identified as the Disclosure Schedule. All such matters shall be identified
so as to correspond to the paragraphs of this Section 6.1 to which such matters
relate. Upon delivery of the Disclosure Schedule, all of the representations and
warranties herein contained shall be deemed to have been made as of the date of
delivery of the Disclosure Schedule, and all future tense references in this
Article VI to matters to be disclosed in the Disclosure Schedule shall at the
time of delivery thereof be read in the present tense:
(a) Organization and Qualification. Each of the Winget Entities is duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of formation or organization and has all requisite
corporate or company power and authority to own, lease and operate its
properties and assets and to carry on its Business as now being conducted. Each
of the Winget Entities is duly qualified to transact business, and is in good
standing, in each jurisdiction where the nature of its activities makes such
qualification necessary, except where the failure to so qualify would not have a
Material Adverse Effect. The Larry J. Winget Living Trust has been duly created
and is validly existing under the laws of Michigan.
(b) Power and Authority; Enforceability. Each of the Transferors has
all requisite power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby. The execution, delivery and performance by
each of the Transferors of this Agreement have been duly authorized by all
necessary corporate, company, trust or other action on the part of each
Transferor. This Agreement constitutes the legal, valid and binding obligation
of each Transferor, enforceable against it or him (as the case may be) in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency, and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief, or other equitable remedies.
(c) No Conflict or Violation. The execution, delivery and performance
of this Agreement and the consummation by the Transferors of the transactions
contemplated hereby do not (a) violate any provision of the Organizational
Documents of the Transferors or (without duplication) the Winget Entities, (b)
violate, conflict with or result in a breach of or constitute a default under,
any term, condition, or provision of any Material Contract or any material
contract by which any Transferor is bound, (c) violate any law, ordinance, code,
rule, regulation, order, judgment, injunction, award or decree of any
Governmental Authority applicable to any Transferor, Transferred Winget Entities
or the Transferred Assets.
(d) Third-Party Consents. No consent, authorization or approval of, and
no registration or filing with, any third parties or any Governmental Authority,
is required for the execution, delivery and performance of this Agreement by the
Transferors and the consummation of the transactions contemplated hereby.
(e) Title. The Transferred Winget Entities have good and marketable
title to all of the Winget Assets owned by them, or a valid leasehold interest
in or license to use, all of the Winget Assets leased or licensed to them, in
each case free and clear of all Liens of any nature whatsoever, except for
Permitted Liens. Each Transferor (or Transferred Winget Entity, as the case may
be) is the record and beneficial owner of, and has good and marketable title to,
the Equity Interests of the Transferred Winget Entity of which it is the owner,
or of the Transferred
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Assets of which it is the owner (as the case may be), free and clear of all
Liens of any nature whatsoever, except for Permitted Liens.
(f) Owned Real Property. The Disclosure Schedule shall contain a
correct and complete list of all real property owned of record or beneficially
by the Winget Entities or Winget and which constitutes Winget Assets (the "Owned
Real Property"). Except as set forth on the Disclosure Schedule:
(i) there are no pending or, to the Knowledge of the
Transferors, threatened condemnation proceedings, lawsuits or administrative
actions relating to the Owned Real Property, which would be reasonably likely to
have a material adverse effect on the use in the Business, or the value, of the
Owned Real Property;
(ii) all facilities located on the Owned Real Property are
supplied with utilities and other services necessary for the operation of such
facilities, all of which services are adequate for the current operations
thereof and are in accordance, in all material respects, with all applicable
laws, ordinances, rules and regulations; and
(iii) to the Knowledge of the Transferors, no Transferor has
received any written notice for any material assessment for public improvements
against any of the Owned Real Property which remains unpaid.
(g) Leased Real Property. The Disclosure Schedule shall contain a
correct and complete list of all leases for real property leased (as lessor or
lessee) by the Transferred Winget Entities or which constitute Transferred
Assets (the "Real Property Leases"). The Real Property Leases are valid, binding
and enforceable against the Winget Entities party thereto, subject to (i) laws
of general application relating to bankruptcy, insolvency, and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive
relief, or other equitable remedies, and are in full force and effect. There is
no default thereunder by the Winget Entity party thereto, which default would be
reasonably likely to have a Material Adverse Effect; and no event has occurred
which with notice or lapse of time or both, would constitute a default by the
Winget Entity party thereto, which default would be reasonably likely to have a
Material Adverse Effect. No Winget Entity has assigned, pledged, encumbered or
sublet its interest in any Real Property Lease.
(h) Leased Personal Property. The Disclosure Schedule shall contain a
correct and complete list of all leases and other agreements under which Winget
or any Winget Entity leases, holds or operates any tools, furniture, machinery,
equipment, vehicles or other personal property owned by any other person and
which is used in the conduct of the Business by Winget or such Winget Entity and
which has an annual rental obligation in excess of $50,000. All of such leases
and agreements are valid, binding and enforceable against Winget or the Winget
Entity party thereto, subject to (i) laws of general application relating to
bankruptcy, insolvency, and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief, or other equitable remedies,
and are in full force and effect. There is no default thereunder by Winget or
the Winget Entity party thereto, which default would be reasonably likely to
have a Material Adverse Effect; and no event has occurred which, with notice or
lapse of time or both,
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would constitute a default by Winget or the Winget Entity party thereto, which
default would be reasonably likely to have a Material Adverse Effect.
(i) Intellectual Property.
(i) To the Knowledge of the Transferors, there are no United
States or other foreign patents or patent applications the claims of which
prevent or would prevent Venture Holdings from operating the Winget Assets or
the Business of any Transferred Winget Entities as currently operated.
(ii) There are no claims or demands of any other person, firm
or corporation pertaining to any of the intellectual property contained in the
Winget Assets, and no proceedings have been instituted, are pending, or to the
Knowledge of the Transferors, are threatened, which challenge any of the Winget
Entities' rights in respect thereto, and none is subject to any outstanding
order, decree, judgment or stipulation. To the Knowledge of the Transferors, the
operation of the Business of the Transferred Winget Entities and the
Transferring Winget Entities does not infringe the intellectual property rights
of any other person, firm or corporation.
(iii) The Disclosure Schedule shall contain a true and
complete list of all license agreements whereby (x) intellectual property is
licensed to a Transferred Winget Entity, or constitutes a Transferred Asset, and
(y) the annual expense under such license exceeds $50,000.
(iv) The Transferred Winget Entities and the Transferring
Winget Entities, taken as a whole, exclusively own or possess adequate licenses
or other rights to use all patents, patent applications, trademarks, trade
secrets, trade names, copyrights, formulae, production outlines, computer
programs, software, production development records and other proprietary
information used by the Transferred Winget Entities and the Transferring Winget
Entities. All of the foregoing are included in and are a part of the Winget
Assets.
(j) Employment Matters. With respect to the employees of the
Transferred Winget Entities:
(i) there is no labor strike, slowdown, work stoppage,
dispute, lockout or other labor controversy in effect or, to the Knowledge of
the Transferors, threatened;
(ii) no action, suit, complaint, charge, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority brought by
or on behalf of any employee, prospective employee, former employee, retiree,
labor organization or other representative of the employees of any Transferred
Winget Entity is pending or, to the Knowledge of Transferors, threatened;
(iii) no Transferred Winget Entity is a party to or otherwise
bound by, any consent decree with, or citation by, any Governmental Authority
relating to employees or employment practices, wages, hours, and terms and
conditions of employment with respect to its Business;
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(iv) each Transferred Winget Entity has paid in full, or
accrued in the financial statements referenced in Section 6.1(t) and 6.1(u), to
all employees of such Transferred Winget Entity, all wages, salaries,
commissions, bonuses, benefits and other compensation due to such employees or
otherwise arising under any policy, practice, agreement, plan, program, statute
or other law;
(v) no Transferred Winget Entity is a party to any collective
bargaining agreement or other contract or agreement with any labor organization
or other representative of any of its employees nor is any such contract or
agreement presently being negotiated; and
(vi) no Transferred Winget Entity is a party to any written
employment agreement or consulting agreement (other than at-will employment
arrangements), involving annual payments of $50,000 or greater, with any person
or entity, nor is any such contract or agreement presently being negotiated.
(k) Employee Benefit Plans.
(i) The Disclosure Schedule shall set forth all Employee
Benefit Plans maintained or contributed to by each Winget Entity or to which
each Winget Entity is obligated to contribute, including each "multiemployer
plan" (as such term is defined in Section 3(37) of ERISA) and a list of all
Foreign Plans. With respect to the Employee Benefit Plans:
A. no transaction or arrangement has occurred with
respect to any Employee Benefit Plan that is a "prohibited transaction"
within the meaning of Section 406 of ERISA or Section 4975 of the Code;
B. there has been no "reportable event" within the
meaning of Section 4043 of ERISA and not excepted by the regulations
thereunder, nor within the past six years has any event described in
Section 4062, 4063 or 4041 of ERISA occurred;
C. each Employee Benefit Plan has been duly
established, and each Employee Benefit Plan and related trust or other
funding agreements and the administration and funding thereof are
currently, and have been at all times in the past, in compliance in all
material respects with the requirements of applicable laws (including
ERISA and the Code) and in compliance with the terms of such plans,
trust agreements and any applicable collective bargaining agreements,
and all returns, reports, notices and applications relating to each
Employee Benefit Plan required by any governmental entity have been
timely filed;
D. all contributions or premiums required to be made
and all employee contributions required to be withheld on or before the
date hereof to or in respect of each Employee Benefit Plan under the
terms of such plan, ERISA, the Code or other applicable law and
applicable collective bargaining agreements have been made on or before
their due dates or timely withheld, and no Taxes, penalties or fees are
due and payable under or in respect of any such plan;
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E. no Transferred Winget Entity has incurred any
liability (except for premiums) to the Pension Benefit Guaranty
Corporation ("PBGC") which has not been discharged;
F. no Employee Benefit Plan is a multiemployer plan,
a defined benefit plan subject to Section 412 of the Code or Title IV
of ERISA or a defined contribution plan intended to qualify under
Section 401(a) of the Code;
G. with respect to any Employee Benefit Plan that is
a multiemployer plan, (a) no Transferred Winget Entity or ERISA
Affiliate has incurred any liability under Title IV of ERISA as a
result of any withdrawal from any such plan, (b) no Transferred Winget
Entity or ERISA Affiliate has received any notice from any such plan
that the plan is in reorganization or is insolvent, that increased
contributions may be required to avoid a reduction in plan benefits or
the imposition of any excise tax, or that such plan intends to
terminate or has terminated, and (c) no event has occurred that would
result in any such withdrawal liability;
H. each Employee Benefit Plan that is intended to be
qualified under Section 401(a) of the Code (i) is so qualified and each
trust for such plan is tax-exempt under Section 501(a) of the Code and
no event has occurred or circumstance exists that will give rise to the
disqualification of the plan or loss of tax-exempt status of the trust,
and (ii) has received a favorable determination letter (or advisory or
opinion letter, as applicable) from the Internal Revenue Service (or it
is within the remedial amendment period for the filing of an
application therefor) on the qualified status of the plan that covers
all tax-qualification requirements required under the Code to be stated
in the Employee Benefit Plan as of the Closing Date, and no such letter
has been revoked.
(ii) Neither the execution of this Agreement or the completion
of the transactions contemplated hereby will, whether alone or in combination
with any other event or circumstance, notice or lapse of time: (i) result in any
payment (including any change of control, severance or termination payment)
becoming due or potentially becoming due under any Employee Benefit Plan or any
agreement with any director, officer or employee of any Transferred Winget
Entity; (ii) increase any benefits otherwise payable under any Employee Benefit
Plan or any such agreement; or (iii) result in the acceleration of the time of
payment or vesting of any such benefits or any such plan or agreement.
(iii) There are no actions, suits, claims or proceedings
(other than routine claims for benefits), whether in equity or at law, or
examinations or investigations by any Governmental Authority pending or, to the
knowledge of the Transferors, threatened against or with respect to any Employee
Benefit Plan or any assets of any such Employee Benefit Plan.
(iv) Each Foreign Plan is in compliance in all material
respects with the provisions of all laws applicable to such Foreign Plan and
each Foreign Plan has accrued or otherwise taken into account on its books and
records all liabilities required to be accrued or otherwise taken into account
under the applicable law with respect to such Foreign Plan. All
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material liabilities with respect to each Foreign Plan have been paid when due.
All required employer contributions under each Foreign Plan have been made and
each Foreign Plan has been funded in accordance with the terms of such Foreign
Plan and in compliance in all material respects with all applicable law. All
material reports or other documents with respect to each Foreign Plan required
by applicable law have been timely filed with the appropriate Governmental
Authority, where the failure to file such reports or documents would be
reasonably likely to have a Material Adverse Effect. There are no actions, suits
or claims pending (other than routine claims for benefits in the ordinary
course), with respect to any Foreign Plans.
(l) Material Contracts. Except for (1) contracts and agreements
addressed in other subsections of this Section 6.1, (2) purchase orders and
sales orders in an amount not to exceed $100,000 per order and (3) any contract
which is between a Transferor or Transferred Winget Entity, on the one hand, and
a Venture Entity, on the other hand, no Transferor (with respect to a Material
Contract (as defined below) which is a Transferred Asset) or Transferred Winget
Entity is a party to any outstanding:
(i) commitment, contract, or agreement involving an obligation
or liability on the part of such Transferred Winget Entity of more than (A)
$50,000 in the case of a Transferred Winget Entity conducting business in the
United States, and (B) $100,000 in the case of a Transferred Winget Entity
located in a jurisdiction outside of the United States (excluding, in each case,
orders for the purchase of standard products from or by such Transferred Winget
Entity accepted in the ordinary course of business and providing for prevailing
prices and customary conditions of sale);
(ii) agreement, contract or commitment containing any
non-competition, confidentiality or other limitations restricting the conduct of
the Business of any Transferred Winget Entity;
(iii) agreement or contract relating to the mortgaging,
pledging or the placing of a Lien on any of the Winget Assets;
(iv) note, debenture, bond, equipment trust agreement, letter
of credit agreement, loan agreement or other contract or commitment for the
borrowing or lending of money or guarantee, pledge or undertaking of the
indebtedness of any other person;
(v) partnership, joint venture or similar agreement;
(vi) any agreement entered into relating to the acquisition or
disposition of businesses, product lines or assets, except those agreements
entered into in the ordinary course of business;
(vii) any other agreement which (A) was not entered into in
the ordinary course of business which, by its terms, involves a liability of any
Transferred Winget Entity in excess of $100,000; (B) is material to the
operations or business prospects of the Business of any Transferred Winget
Entity; or (C) is included in the Transferred Assets (the foregoing, and the
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contracts and agreements addressed in other subsections of this Section 6.1, are
referred to herein, collectively, as the "Material Contracts", and each
individually as a "Material Contract").
Each of the Material Contracts is valid and binding on the Transferred Winget
Entity or any Transferor (with respect to each Material Contract that is a
Transferred Asset) which is a party thereto and enforceable in accordance with
its terms, subject to (i) laws of general application relating to bankruptcy,
insolvency, and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief, or other equitable remedies. No Transferred
Winget Entity or Transferor (with respect to each Material Contract that is a
Transferred Asset) is, nor, to the Transferors' Knowledge, is any other party to
any of the Material Contracts, in default thereunder, which default would be
reasonably likely to have a Material Adverse Effect; and (ii) to the
Transferors' Knowledge, no condition exists which with notice or lapse of time
or both would constitute a default by any Transferred Winget Entity or
Transferor (with respect to each Material Contract that is a Transferred Asset)
under any Material Contract, which default would be reasonably likely to have a
Material Adverse Effect. True and complete copies of all Material Contracts have
been made available to Venture Holdings.
(m) Tax Returns and Taxes.
(i) Each of the Transferred Winget Entities and each
Transferring Winget Entity (with respect to the Transferred Assets) has duly
filed (or caused to be filed) all returns of Taxes required to be filed by it,
and each of the Transferred Winget Entities and Transferring Winget Entities
(with respect to the Transferred Assets) has paid all Taxes for all periods
covered by such returns. Such returns of Taxes are true, correct, and complete
in all material respects.
(ii) No action or proceeding for the assessment or collection
of any Taxes is pending or proposed against any of the Transferred Winget
Entities or any Transferring Winget Entities (with respect to the Transferred
Assets), and no deficiency, assessment or other claim for any Taxes has been
asserted or made against any of the Transferred Winget Entities or Transferring
Winget Entities (with respect to the Transferred Assets) that has not been fully
paid. No issue has been raised by any taxing authority in connection with an
audit or examination of any return of Taxes which has not been resolved or for
which, if not resolved, adequate reserves are not maintained. No Transferred
Winget Entity or Transferring Winget Entity (with respect to the Transferred
Assets) has agreed, nor is required, to include in income any adjustment
pursuant to Section 481(a) of the Code (or comparable state or foreign law or
regulations) by reason of a change in accounting method or otherwise. There are
no outstanding agreements or waivers extending the applicable statutory periods
of limitation for the assessment or collection of Taxes for any Transferred
Winget Entity or Transferring Winget Entity (with respect to the Transferred
Assets) for any period. No Transferred Winget Entity or Transferring Winget
Entity has, with regard to any assets or property held by any Transferred Winget
Entity or with respect to the Transferred Assets, filed a consent to the
application of Section 341(f)(2) of the Code (or comparable state or foreign law
or regulations). No Transferred Winget Entity or Transferring Winget Entity
(with respect to the Transferred Assets) has received any reports or other
written assertions by agents of any taxing authority of any deficiencies or
other liabilities for Taxes with respect to taxable periods for which the
limitations period has not run. All Taxes of the Transferred Winget Entities
(including South Africa and Australia) which have been assessed but
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are not yet due and owing have been fully accrued on the financial statements of
the Transferors in accordance with GAAP or International Accounting Standards,
as applicable.
(iii) All Taxes which any of the Transferred Winget Entities
or any Transferring Winget Entities (with respect to the Transferred Assets) has
been required to collect or withhold have been duly withheld or collected and,
to the extent required, have been paid to the proper Taxing authority.
(iv) No Transferred Winget Entity or Transferring Winget
Entity (with respect to the Transferred Assets) is, nor has been, a party to any
tax allocation or tax sharing agreement.
(v) None of the Winget Assets is subject to a "safe harbor
lease" under Section 168(f)(8) of the Code, as in effect immediately prior to
the Tax Equity and Fiscal Responsibility Act of 1982 (or comparable federal,
state or foreign law or regulations).
(vi) None of the Transferred Winget Entities will have any
liability for the Taxes of any person other than the respective Transferred
Winget Entity. For purposes of this representation, Taxes imposed under Treasury
Regulation section 1.1502-6 or a similar provision of state, local or foreign
Tax law shall not be considered Taxes of the respective Transferred Winget
Entity.
(n) Licenses and Permits. Each of the Transferred Winget Entities owns,
holds, possesses or lawfully uses all permits which are necessary to conduct its
Business as now conducted by it and all such permits are in full force and
effect, in each case where the failure to own, hold, possess, use, or maintain
in effect any such permit would be reasonably likely to have a Material Adverse
Effect.
(o) No Pending Litigation or Proceedings. There is no litigation,
investigation, arbitration or proceeding pending or, to the Knowledge of the
Transferors, threatened against or affecting the Business of the Transferred
Winget Entities or the Winget Assets, at law or in equity, by or before any
Governmental Authority, involving a claimed amount in excess of $100,000. There
are presently no outstanding Governmental Orders against or affecting the
Business of the Transferred Winget Entities or the Winget Assets.
(p) Compliance with Laws. To the Knowledge of the Transferors, the
Business of the Transferred Winget Entities has been conducted in compliance in
all material respects with all applicable laws, regulations and ordinances of
any Governmental Authority.
(q) Environmental Matters.
(i) There are no inquiries, litigation or other proceedings
pending, or, to the Knowledge of the Transferors, threatened with regard to the
current or prior conduct of the Business of any Transferred Winget Entity or any
real properties included in the Winget Assets relating to any law, regulation or
ordinance concerning air or water quality, public health and safety, hazardous
or toxic substances, or pollution or protection of the environment
("Environmental Laws").
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(ii) To the Knowledge of the Transferors, no Transferred
Winget Entity has operated its Business other than in compliance with all
Environmental Laws in all material respects.
(iii) The Owned Real Property is not subject to any
Governmental Order which relates to or arises out of a violation of any
Environmental Laws.
(iv) No additional permits, licenses or approvals are required
under any Environmental Law relative to any real properties included in the
Winget Assets, the failure of which to obtain would be reasonably likely to have
a Material Adverse Effect.
(r) Sufficiency of Assets. The Transferred Assets and Transferred
Winget Entities include all of the assets and properties owned, leased or
licensed by the Winget Entities or Winget and necessary to the conduct of the
Business of the Venture Entities or (y) used in the conduct of the Business of
the Venture Entities as the same has been conducted within the two year period
ending on the date hereof and as conducted immediately prior to the date hereof.
(s) Investment Representations. None of the Transferors is an
"underwriter" as such term is defined in Section 1145 of the Bankruptcy Code,
and the Transferors are acquiring the Winget Interests for investment and
without a view to the distribution thereof. The Transferors understand that no
public market now exists for any of the securities issued by Venture Delaware,
and that Venture Holdings has made no assurances that a public market will ever
exist for the Winget Interests. The Transferors further represent and warrant
that they have access to whatever information they deem necessary or appropriate
with respect to an investment in the Winget Interests. The Transferors
acknowledge that the Winget Interests have not been registered under the
Securities Act of 1933, as amended, or the Michigan Uniform Securities Act, or
any other applicable state securities law. The Transferors agree to resell the
Winget Interests only in "ordinary trading transactions," within the meaning of
section 1145(b)(1) of the Bankruptcy Code, or if registered, or pursuant to any
other available exemption from registration.
(t) South Africa and Australia Financial Information. The financial
statements of South Africa and Australia as of and for the periods ended
December 31, 2001 and December 31, 2002 (collectively, "Audited South
Africa/Australia Financial Statements") have been audited in accordance with
International Accounting Standards ("IAS"). All such Audited South
Africa/Australia Financial Statements fairly present in all material respects
the financial condition of the entities covered thereby as of the respective
dates presented in such reports, and the results of operations and cash flows of
the entities covered thereby for the respective periods presented. True and
complete copies of the Audited South Africa/Australia Financial Statements have
been provided to Venture Holdings.
(u) Winget Entities Financial Information. The financial statements of
each of the Winget Entities (other than South Africa and Australia) as of and
for the periods ended December 31, 2001 and December 31, 2002 (collectively, the
"Winget Entities Financial Statements"), which consist of compilations, have
been prepared in accordance with generally accepted accounting principles in the
United States ("GAAP") and fairly present in all material respects the financial
condition of the entities covered thereby as of the respective dates
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presented in such reports, and the results of operations and cash flows of the
entities covered thereby for the respective periods presented in such reports
(except for the omission of footnote disclosures required by GAAP). True and
complete copies of the Winget Entities Financial Statements for each of the
Winget Entities have been provided to Venture Holdings.
(v) Transferred Winget Entities Interim Financial Information. The
financial statements of the Transferred Winget Entities for each of the
quarters/months commencing on or after January 1, 2002 and ended on or prior to
July 31, 2003, and, to the extent delivered to Venture Holdings on or prior to
the Closing Date, the financial statements of the Transferred Winget Entities
for each quarterly or monthly period thereafter, commencing with August, 2003
and ending on the last day of the month immediately preceding the month in which
the Closing Date shall occur (the "Subsequent Financial Statements"), consisting
of compilations, will have been prepared in accordance with GAAP applied on a
consistent basis, except for South Africa and Australia which will have been
prepared in accordance with International Accounting Standards (except for the
omission of footnote disclosures required by GAAP and/or International
Accounting Standards). All such Subsequent Financial Statements will fairly
present in all material respects the financial condition of the entities covered
thereby as of the respective dates presented in such reports, and the results of
operations and cash flows of the entities covered thereby for the respective
periods presented in such reports. All such Subsequent Financial Statements will
reflect all adjustments (which will consist only of normal recurring adjustments
not material in amount and will include but not be limited to estimated
provisions for year end adjustments) reasonably necessary for a fair
presentation.
(w) Absence of Material Changes.
(i) Since December 31, 2002, other than as disclosed in the
Disclosure Schedule, whether or not in the ordinary course of business, there
has not been, occurred or arisen any change in or event affecting the Winget
Assets or their business, operations or financial condition that has had or may
reasonably be expected to have a Material Adverse Effect, either individually or
in the aggregate (other than as a result of the filing of the bankruptcy
petition by the Debtors.
(ii) Since December 31, 2002, other than as disclosed in the
Disclosure Schedule, whether or not in the ordinary course of business, there
has not been, occurred or arisen any change in or event affecting the Venture
Entities (excluding the Venture B Assets), or their business, operations or
financial condition that has had or may reasonably be expected to have a
Material Adverse Effect, either individually or in the aggregate (other than as
a result of the filing of the bankruptcy petition by the Debtors.
(x) Venture Holdings' Audited Financial Information. The consolidated
balance sheets for Venture Holdings and its subsidiaries, as at December 31,
2001 and the related consolidated statements of operations, changes in
stockholder's equity and changes in financial position or cash flow for the
periods then ended (the "Audited Venture Financial Statements") have been
examined by the auditors whose reports thereon are included with such Audited
Venture Financial Statements. All such Audited Venture Financial Statements have
been prepared in accordance with GAAP applied on a consistent basis. All such
Audited Venture Financial Statements fairly present in all material respects the
financial condition of the entities
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covered thereby as of the respective dates presented in such reports, and the
results of operations and cash flows of the entities covered thereby for the
respective periods presented in such reports.
(y) Venture Holdings Interim Financial Information. The consolidated
balance sheets for Venture Holdings and its subsidiaries (excluding the Venture
B Assets), at December 31, 2002 and at each quarterly period ended on or prior
to the Closing Date, and the related consolidated statements of operations,
changes in stockholder's equity and changes in financial position or cash flow
for the periods then ended (collectively, the "Interim Financial Statements")
have been prepared in accordance with GAAP applied on a consistent basis (except
for the omission of footnote disclosures required by GAAP). All such Interim
Financial Statements fairly present in all material respects the financial
condition of the entities covered thereby as of the respective dates, and the
results of operations and cash flows of the entities covered thereby for the
respective periods. All such Interim Financial Statements reflect all
adjustments (which consist only of normal recurring adjustments not material in
amount and include but are not limited to estimated provisions for year-end
adjustments) necessary for a fair presentation. At the dates of such Interim
Financial Statements, no such entity had any material liability (actual,
contingent or accrued) that, in accordance with GAAP applied on a consistent
basis, should have been shown or reflected therein but was not so reflected,
other than items disclosed in subsequent financial statements or in this
Agreement and the Disclosure Schedule.
(z) Venture Holdings 2002 Audited Financial Information. To the extent
delivered to Venture Holdings on or prior to the Closing Date, Venture Holdings'
consolidated balance sheets for the Venture Entities (excluding the Venture B
Assets) at December 31, 2002 and the related consolidated statements of
operations, changes in stockholder's equity and changes in financial position or
cash flow for the periods then ended (collectively, the "2002 Financial
Statements") will have been examined by the auditors whose reports thereon will
be included with such 2002 Financial Statements. All such 2002 Financial
Statements will have been prepared in accordance with GAAP applied on a
consistent basis. All such Financial Statements will fairly present in all
material respects the financial condition of the entities covered thereby as of
the respective dates presented in such reports, and the results of operations
and cash flows of the entities covered thereby for the respective periods
presented in such reports.
(aa) Accuracy of Information. All written information furnished by
Winget or on behalf of Winget by one of his representatives or agents to the
Bank Steering Committee or Venture Holdings since May 1, 2002 pertaining to the
Winget Assets, the Retained Property, the Retained Entities, Winget and the
transactions contemplated by this Agreement (all of the foregoing taken as a
whole), is true and complete in all material respects and does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make any statement therein not misleading in light of the circumstances in
which such statement was made. None of the written information (other than
information with respect to the Venture Entities) supplied or to be supplied by
Winget or any of his affiliates (other than the Venture Entities) or
representatives, to any person for inclusion, or included, in any document filed
in connection with the Plan or in connection with the transactions contemplated
by the Disclosure Statement and any documents related to such transaction,
contains any untrue statement of a material fact,
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or omitted or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. If any of such material written
information at any time subsequent to its delivery becomes untrue or misleading
in any material respect, to the extent Winget has actual Knowledge thereof,
Winget will promptly notify such person to whom the information was delivered in
writing of such fact and of the reasons for such change.
(bb) Lease Authority. Each of Harper Partners, Venture Real Estate
Acquisition Company and Venture Equipment Acquisition Company has all requisite
power and authority to enter into the Lease to which it is a party and to carry
out the transactions contemplated thereby. The execution, delivery and
performance by each of Harper Partners, Venture Real Estate Acquisition Company
and Venture Equipment Acquisition Company of the Lease to which it is a party
have been duly authorized by all necessary corporate, company or trust action on
the part of such entity. The Lease to which it is a party constitutes the legal,
valid and binding obligation of each of Harper Partners, Venture Real Estate
Acquisition Company and Venture Equipment Acquisition Company, enforceable
against it in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency, and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief, or other
equitable remedies.
(cc) Certain Distributions. Since January 1, 2003, except as otherwise
permitted pursuant to the terms of this Agreement, there have been no
distributions or transfers by any of the Transferred Winget Entities (exclusive
of VSE) to Winget or any of his affiliates other than (i) transfers to another
Transferred Winget Entity or any Venture Entity and (ii) cash distributions in
an amount not exceeding $100,000 individually or in the aggregate.
(dd) Certain Foreign Receivables.
(i) To the Knowledge of the Transferors, the funds loaned from
Heavy to P.I.M. Management Company ("PIM") were used by PIM to either (a)
purchase the shares of Venture Otto Holdings BV from a third-party or (b) make
loans to South Africa as set forth in the Audited South Africa/Australia
Financial Statements. To the Knowledge of the Transferors, such loans shown in
the Audited South Africa/Australia Financial Statements were either (i)
capitalized in fiscal year 1999 or (ii) repaid through an offset generated by
South Africa's purchase of the remaining 11% interest in South Africa from the
South African IDC in 2003.
(ii) To the Knowledge of the Transferors, the funds loaned
from Heavy to Venco #1 L.L.C. ("Venco") were used to purchase, directly or
indirectly, an interest in the Venture Australia Unit Trust (the "Unit Trust").
As Venco is a Transferred Winget Entity, its assets (including Venco's interest
in the Unit Trust) constitute Winget Assets.
(iii) To the Knowledge of the Transferors, each of the Heavy
receivables listed on Exhibit D, Item 5, is not collectible from the obligor
under such receivables.
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(iv) To the Knowledge of the Transferors, since January 1,
2002 no debt on the books of South Africa or Australia has been converted to
equity or repaid (except as shall be set forth on the Disclosure Schedule).
(ee) Related Party Transactions. The Disclosure Schedule shall set
forth all Related Party Transactions which exceeded $20,000 per transaction
since August 1, 2000, other than certain transactions (including leases, usage
agreements and sales commission agreements) which have been previously disclosed
to Venture Holdings and the Bank Steering Committee and which have been or are
being consummated in accordance with the terms as previously disclosed to
Venture Holdings, the Agent and the Bank Steering Committee.
(ff) No Undisclosed Liabilities. None of the Transferred Winget
Entities has any obligation or liability of any nature whatsoever (direct or
indirect, matured or unmatured, absolute, accrued, contingent or otherwise)
which would be required by GAAP, or, in the case of South Africa and Australia,
IAS, to be provided or accounted for, reserved against, or otherwise reflected,
directly or indirectly, on a balance sheet, including the notes thereto
(collectively "Liabilities") except for:
(i) Liabilities provided or accounted for, reserved against or
otherwise reflected in the Winget Entities Financial Statements, Audited South
Africa/Australia Financial Statements or Subsequent Financial Statements for
periods ending on or prior to July 31, 2003 and not discharged subsequent to
such financial statements;
(ii) Liabilities which have been incurred by the Transferred
Winget Entities subsequent to July 31, 2003 in the ordinary course of the
Transferred Winget Entities' respective businesses and consistent with past
practices and not discharged since such date, and not otherwise in breach of a
representation or warranty or covenant set forth in this Agreement.
Section 6.2 Covenants of the Transferors.
(a) Conduct of the Business. On and after the date of this Agreement
and until the first to occur of the Closing Date and the Termination Date,
Winget shall cause and the Transferors shall conduct the business of the
Transferred Winget Entities and the Transferred Assets in the ordinary course of
business. Without limiting the generality of the foregoing, the Transferors
shall: (i) use commercially reasonable efforts to preserve the business
organizations relating to each of the Transferred Winget Entities, (ii) use
commercially reasonable efforts to preserve the goodwill of the suppliers and
customers and others having business relationships with the Transferred Winget
Entities, (iii) cause to be paid and perform all debts, obligations and
liabilities as and when due (except for obligations or liabilities contested in
good faith), in a manner consistent with past practices, and all leases,
agreements, contracts and other commitments to which the Transferred Winget
Entities are a party or with respect to the Transferred Assets in accordance
with the terms and conditions thereof, (iv) comply in all material respects with
all material laws that may be applicable to the Transferred Winget Entities or
the Transferred Assets, (v) not create or allow the Transferred Winget Entities
to incur any indebtedness for borrowed money or any other material obligations,
and (vi) except as otherwise permitted by this Agreement, not cause or permit
any of the Transferred Winget Entities to transfer any assets, including cash,
(other than the Retained Property) or incur any liabilities or
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obligations to the Transferors or any of their respective affiliates (exclusive
of the Venture Entities). Notwithstanding the foregoing, none of the Transferors
shall be in breach of this paragraph if and to the extent the cause of such
breach results from the failure of the Debtors to provide funding in accordance
with the approved debtor-in-possession budget.
(b) Support of Plan. The Transferors hereby covenant and agree to use
their respective best efforts (subject to their rights under this Agreement,
including, without limitation, their rights under Section 9.2(e)), to support,
and cause each of the Winget Entities to support, the Plan as agreed to in
Section 7.1A(a)(ii) in the form in which it is filed; provided, however, that
the Transferors will not be obligated to support the Plan if, (x) it is not
agreed to in accordance with Section 7.1(A)(ii) prior to the filing, or (y) if
after filing, it is altered from the form in which it is filed in any respect
which is materially adverse to the Transferors, taken as a whole.
(c) Limitation on Certain Actions. The Transferors hereby covenant and
agree that, from and after the date of this Agreement and until the first to
occur of the Closing Date and the Termination Date, none of the Transferors will
take any action to amend, modify, revoke or rescind the corporate and/or company
authorization to execute and deliver, and perform under, this Agreement.
(d) Intellectual Property Assignments. Winget hereby covenants and
agrees that on and after the Closing Date, he will do and perform, from time to
time, and execute and deliver, any and all instruments of transfer or assignment
required or reasonably requested by the other parties to evidence or perfect
Venture Delaware's right, title and interest in any intellectual property
contained in the Winget Assets.
(e) Winget Interim Financial Statements. On and after the date of this
Agreement and until the first to occur of the Closing Date and the Termination
Date, Winget hereby covenants and agrees to deliver the Subsequent Financial
Statements referred to in Section 6.2(v), promptly after such Subsequent
Financial Statements are available.
(f) Covenant Not to Compete. From the date hereof until the earlier to
occur of (i) the Termination Date and (ii) if the Closing Date shall occur, the
second anniversary of the date (the "Relevant Date") upon which Larry J. Winget
shall no longer be employed by Venture Delaware or any of its subsidiaries (the
"Restricted Period"), none of the Transferors shall:
(1) directly or indirectly (whether as principal, agent,
independent contractor, partner, investor (other than as a holder of less than
10% of the outstanding capital stock of a publicly traded corporation) or
otherwise), own, manage, operate, control, participate in, perform services for
or otherwise carry on, a business competitive with the business of Venture
Holdings or any of its affiliates as conducted from time to time until the
Relevant Date, and thereafter, as conducted as of the Relevant Date (the
"Venture Business") other than (A) during the period from the date hereof
through the Closing Date, the Excepted Businesses and the Transferred Winget
Entities and the Transferring Winget Entities and (B) during the period from the
Closing Date through the end of the Restricted Period, the Excepted Businesses,
in each case in any geographic area in which Venture Holdings or its affiliates
(including the Transferred Entities) conducts the Venture Business as of the
Relevant Date; or
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(2) directly or indirectly, (A) induce or attempt to persuade
any employee, agent, supplier or customer of Venture Holdings or any of its
affiliates (or, prior to the Closing Date, the Transferred Winget Entities) to
terminate such employment, agency or business relationship in order to enter
into any such relationship on behalf of any other business organization or
entity in competition with the Venture Business or (B) otherwise interfere with
any such employee, agent, supplier or customer relationship with the Venture
Business; provided, however, that (x) general solicitations of employment, such
as "help wanted" advertisements or internet job board postings, shall not be
prohibited; and (y) this clause (2) shall not prohibit the solicitation of any
employee of Venture Holdings or any of its affiliates (or, prior to the Closing
Date, the Transferred Winget Entities) who is not an officer, manager of a
principal business function, salesman, engineer or designer.
It is the intent and understanding of each party hereto that if, in any action
before any court or agency legally empowered to enforce this Section 6.2(f), any
term, restriction, covenant or promise in this Section 6.2(f) is found to be
unreasonable and for that reason unenforceable, then such term, restriction,
covenant or promise shall be deemed modified to the extent necessary to make it
enforceable by such court or agency.
(g) Delivery of Deliverables. As soon as possible following the date
hereof, and in any event prior to the expiration of the Post-Signing Scheduling
Period, the Transferors shall prepare and deliver to Venture Holdings Schedules
1.1 and 4.1 and the Disclosure Schedule (the "Deliverables"). Venture Holdings
shall have 15 days following receipt of all of the Deliverables in final form
from the Transferors to review the Deliverables (the "Review Period"). If
Venture Holdings, in the exercise of its sole and absolute discretion,
determines, based on its review of the Deliverables, that it does not wish to
consummate the transactions contemplated by this Agreement for any reason,
Venture Holdings shall have the right (with the consent of the Agent) to
terminate this Agreement at any time prior to the end of the Review Period by
delivery of written notice of termination.
(h) Internal Transactions. In addition to the transactions permitted
pursuant to Section 6.2(i), subject to the prior written consent of Venture
Holdings and the Agent (which consent shall not be unreasonably withheld or
delayed), after the date hereof and prior to the Closing Date, each Transferor
may: (i) transfer ownership of any Transferred Winget Entity to any other
Transferor or any other Transferred Winget Entity; (ii) transfer assets from any
Transferred Winget Entity to any other Transferred Winget Entity (including
without limitation, through any Retained Entity); (iii) retain any Winget Entity
which would have been a Transferred Winget Entity provided that such Winget
Entity contribute its assets to the Transferred Assets (whereby such Winget
Entity shall be converted from a Transferred Winget Entity to a Transferring
Winget Entity); (iv) cause the conversion of any Winget Entity (which would have
been a Transferring Winget Entity transferring Transferred Assets) into a
Transferred Winget Entity, and distribute to the Transferors all assets of that
Winget Entity except those assets which would have constituted Transferred
Assets; and (v) without limitation by the specific enumeration of the foregoing,
otherwise restructure the ownership, assets and liabilities of the Winget
Entities. The parties acknowledge that, among other reasons, the Agent and
Venture Holdings may reasonably withhold consent to any transaction referred to
in clauses (i) through (v) above if, on the Closing Date, the consummation of
any of such transaction would
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cause Venture Delaware to (x) not acquire, directly or indirectly, all of the
Winget Assets, free and clear of Liens except Permitted Liens, or (y) assume or
become subject to any liabilities beyond those which would in the aggregate have
constituted Assumed Liabilities or liabilities of the Transferred Winget
Entities, in the absence of any such transactions.
(i) Certain Distributions. From the date hereof until the Closing Date,
Winget shall not, and shall not permit any Transferred Winget Entity to, make
any distribution from any Transferred Winget Entity to himself or any affiliate
(other than to a Transferred Winget Entity) except for (1) distributions with
respect to Retained Property listed on Exhibit D; (2) internal transactions in
accordance with Section 6.2(h), (3) commissions from each of South Africa and
Australia under the agreements identified in Exhibit F as Transferred Assets;
and (4) distributions from payments of rent with respect to the Harper Property
in accordance with Section 7.1A(c)(ii). For purposes of this subsection (i), the
term "distribution" shall not include the payment of expenses of such entities
incurred and paid in the ordinary course pursuant to arms-length transactions,
it being understood that the payment of lawyers, accountants, financial advisor,
or similar representatives engaged by any Transferor in connection with this
Agreement or the Plan would constitute a "distribution" prohibited by this
subsection (i).
(j) Intellectual Property. If, by the terms of its Exit Financing,
Venture Holdings is required to provide a specific list of registered
intellectual property, Winget shall, and shall cause each Winget Entity to use
commercially reasonable efforts within the time period specified by the terms of
such Exit Financing and prior to the Closing Date to provide a true and complete
list of all registered intellectual property used or held for use by any Winget
Entity on the date hereof.
(k) Tax Distributions. If (A) the actual amount of federal and state
income tax liability of Larry J. Winget attributable to net income (loss) of the
Venture Entities (the "Actual Tax Amount") for the fiscal year ended in October,
2002 (when Venture Holdings elected to be taxed as a "C" corporation), as
determined by the tax advisors of the Venture Entities, is less than the
aggregate amounts paid to Larry J. Winget as estimates of his Tax liability (the
"Distributed Amounts") and/or (B) the Actual Tax Amount is at any time finally
determined by the Internal Revenue Service or a court of competent jurisdiction
to be less than that determined by such tax advisors, Larry J. Winget shall,
subject to his right to challenge any determination by such tax advisors of the
Actual Tax Amount as described below, promptly repay to Venture Holdings the
excess of the Distributed Amounts over the Actual Tax Amount, as finally
determined by such tax advisors, the Internal Revenue Service or court of
competent jurisdiction, as the case may be, or the excess of the Actual Tax
Amount, as determined by the tax advisors, over the Actual Tax Amount as
determined by the Internal Revenue Service or court, as the case may be (in
either case, which excess amount may be offset by that certain liability of
Venture Holdings in the approximate amount of $802,000 owing to Larry J. Winget,
but subject to resolution of any potential recovery action or equitable
subordination claim that can be asserted by the Creditors' Committee). Larry J.
Winget shall have the right, at his sole expense, to challenge the determination
of the Actual Tax Amount by such tax advisors at any time within 30 days
following the date on which the determination of the Actual Tax Amount by such
tax advisors is communicated to him. Larry J. Winget shall have the right to
repay such overpayment in equal annual installments over a period of six years,
plus interest at the applicable federal rate
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for such a long-term obligation in effect at the time the amount owed, if any,
by Winget has been determined and Larry J. Winget shall deliver to Venture
Holdings a promissory note evidencing such obligation; provided, however, that
such repayment obligation shall be accelerated to the extent that Larry J.
Winget receives a refund from the Internal Revenue Service with respect to the
foregoing, in which event, he shall repay such refund amount to Venture Holdings
within 75 days of receipt.
(l) Cancellation of Sales Representation Agreements. On or before the
Closing Date, Winget shall, and shall cause each Winget Entity party thereto to,
terminate and cancel each of the Cancelled Sales Representation Agreements.
(m) Certain Receivables.
(i) From the date hereof until the Closing Date, any loans
made by PIM and Venco directly or indirectly to South Africa or the Unit Trust,
Australia or any of their respective subsidiaries as set forth in the Audited
South Africa/Australia Financial Statements as payables owed by South Africa or
Australia shall not be paid, cancelled, converted to equity or otherwise
modified.
(ii) From the date hereof until the Closing Date, the
Transferors shall cause Heavy to refrain from making any payments on the VSE
Receivable or the VIC Receivable. Prior to the Closing Date, the Transferors
shall cause Heavy to transfer the VSE Receivable and VIC Receivable to a
Retained Entity.
(iii) If Winget receives (x) any distribution (in cash,
property or otherwise) or (y) any other payment in cash whatsoever (howsoever
arising), in any case from any entity owing any receivable to Heavy listed in
Exhibit D, Items 4 or 5 (other than PIM or Larry J. Winget), Winget shall, to
the extent of the amount of the receivable owed by such entity to Heavy,
promptly pay to Venture Holdings an amount, in cash, equal to the value of such
distribution.
(iv) At the option of Winget, communicated in writing to
Venture Holdings and the Agent at any time prior to the Closing Date, the
accounts receivable of Heavy from Venture Global Engineering and Venture Global
Engineering (Supercart) listed in Exhibit D, Item 4, shall be removed from
Exhibit D and shall no longer be Retained Property for purposes of this
Agreement.
(n) Taxation of Transferred Winget Entities. The Transferors shall
cause each of the Transferred Winget Entities which would not become a "C"
corporation by operation of law as a result of the ownership thereof by Venture
Delaware to become taxable as a "C"corporation for federal Income Tax purposes,
effective no later than the day following its contribution to Venture Delaware.
(o) Heavy Transfers. Except as otherwise provided in this Agreement,
Heavy will not encumber, transfer or otherwise dispose of any of its rights,
title or interest in or to any property or assets that the Pre-Petition Lenders
have a lien against or other security interest in,
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including without limitation, any property or assets held, used by or related to
Nova Industries, Inc. or its affiliates or their respective businesses.
(p) Escrow of Tax Refund. Upon agreement to the terms of an escrow
agreement and establishment of an escrow account, Larry J. Winget shall deposit
the full amount (approximately $800,000) of that certain federal income tax
refund which Larry J. Winget received on or about December 2002 in an escrow
account. Larry J. Winget covenants and agrees to negotiate in good faith with
the Agent to reach mutually agreeable terms as to the escrow agent and the form
of escrow agreement within 10 business days of the date hereof.
(q) Subordination Agreement. The Transferors shall cause the equity
owners of the Unit Trust (other than Venco) to enter into a subordination
agreement on or before the Closing Date pursuant to which any payment that would
otherwise be made to such equity owners on account of their equity ownership in
the Unit Trust shall be subordinate to the payment in full of all obligations of
Venture Holdings, Venture Delaware or any of their present or future
subsidiaries to the Pre-Petition Lenders under any notes, instruments, documents
or securities to be issued to the Pre-Petition Lenders pursuant to the Plan.
ARTICLE VII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEBTORS
Section 7.1 Representations and Warranties of the Debtors. The
Debtors represent and warrant to the Transferors that:
(a) Organization and Qualification. Each Debtor is duly organized,
validly existing and in good standing under the laws of its organization and has
all requisite authority to own, lease and operate its properties and assets and
to carry on its business as now being conducted. Each Debtor is duly qualified
to transact business, and is in good standing, in each jurisdiction where the
nature of its activities makes such qualification necessary, except where the
failure to so qualify would not have a Material Adverse Effect. On the Closing
Date, Venture Delaware will have been duly organized, existing and in good
standing under the Delaware Limited Liability Company Act and duly qualified and
in good standing as a foreign limited liability company under the Michigan
Limited Liability Company Act.
(b) Power and Authority; Enforceability. Subject to the approval of the
Bankruptcy Court, each Debtor has all requisite power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance by each Debtor of this Agreement have been
duly authorized by all necessary corporate or other action on the part of such
Debtor. This Agreement constitutes the legal, valid and binding obligation of
each Debtor, enforceable against it in accordance with its terms, subject to (i)
laws of general application relating to bankruptcy, insolvency, and the relief
of debtors, and (ii) rules of law governing specific performance, injunctive
relief, or other equitable remedies.
(c) Capitalization. On the Closing Date, the Operating Agreement of
Venture Delaware shall have been adopted providing for the Common Membership
Interests and the Preferred Membership Interests. Except for the Creditors'
Warrant (as defined in the Plan), as of the Closing Date there shall be no
options, warrants, conversion privileges, or preemptive or
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other rights or agreements presently outstanding to purchase or otherwise
acquire from Venture Delaware any membership interests. Except for the Operating
Agreement, as of the Closing Date, Venture Delaware shall not be a party to any
agreement or understanding, or aware of any member who is a party to such an
agreement or understanding, that affects or relates to the voting or giving of
written consents with respect to any security, or the voting by a manager, of
Venture Delaware. Except as provided in the Operating Agreement as of the
Closing Date, Venture Delaware shall not be subject to any obligation
(contingent or otherwise) to repurchase or otherwise to acquire or retire any
membership interests.
Section 7.2 Debtors' Holdings Covenants.
(a) Certain Litigation. The Debtors may bring all causes of action
against the Transferors and the Retained Entities which claims shall become
assets of the Creditors' Trust to be established pursuant to the Plan. The
Debtors may bring all causes of action against the Transferred Winget Entities
which claims shall be part of the value of the Creditors' Warrant, as provided
in the Plan.
(b) Salary to Winget. Until the first to occur of the Closing Date or
the Termination Date, Venture Holdings shall cause Venture Industries to pay a
salary to Larry J. Winget at a monthly rate of $50,000, payable consistent with
past practice.
(c) Best Efforts Undertaking. The Debtors shall use their respective
best efforts (subject to their rights under this Agreement) to support the Plan
in the form in which it is filed pursuant to Section 7.1A(a)(ii) and to cause
the Plan to be confirmed by the Bankruptcy Court.
ARTICLE VII-A
MUTUAL COVENANTS OF THE PARTIES
Section 7.1A Mutual Covenants.
(a) Certain Exhibits and Plan Not Executed.
(i) Confirmation Order. Within 2 business days after filing of
the Plan in accordance with this Agreement, Venture Holdings shall deliver to
the Transferors and the Agent a proposed form of Confirmation Order. The parties
shall negotiate in good faith to reach mutually agreeable terms as to the form
of Confirmation Order which, once so agreed, shall be attached to this document
as Exhibit L. If in good faith and using reasonable efforts the parties are
unable to reach agreement on mutually satisfactory terms as to the Confirmation
Order on or before the date which is 5 business days after the date on which the
Plan is filed, either the Transferors or Venture Holdings may thereafter
terminate this Agreement as provided in Section 10.1(f) at any time prior to the
time the form of Confirmation Order is agreed to.
(ii) Plan. The parties shall negotiate in good faith to reach
mutually agreeable terms as to the form and substance of the Plan (as are
consistent with the Discussion Term Sheet except (x) as otherwise agreed in this
Agreement and (y) with respect to the terms of the Creditors' Warrant which
shall be substantively consistent with the Discussion Term Sheet), which once so
agreed, shall be a document to which this Agreement is attached as an exhibit.
If
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in good faith and using reasonable efforts the parties are unable to reach
agreement on mutually satisfactory terms as to the Plan on or before September
24, 2003, either the Transferors or Venture Holdings may thereafter terminate
this Agreement as provided in Section 10.1(f) at any time prior to the time at
which such Plan is agreed to and filed with the Bankruptcy Court.
(iii) Operating Agreement. Within 7 business days after
execution of this Agreement, Venture Holdings shall deliver to the Transferors
and the Agent a proposed form of Operating Agreement. The parties shall
negotiate in good faith to reach mutually agreeable terms as to the form of
Operating Agreement (consistent in all material respects with the Discussion
Term Sheet except as otherwise agreed in this Agreement) which once so agreed,
shall be attached to this document as Exhibit N. If in good faith and using
reasonable efforts the parties are unable to reach agreement on mutually
satisfactory terms as to the Operating Agreement within 10 business days after
the date of delivery, either the Transferors or Venture Holdings may thereafter
terminate this Agreement as provided in Section 10.1(f) at any time prior to the
time at which such Operating Agreement is agreed to.
(iv) Employment Agreement. The parties shall negotiate in good
faith to reach mutually agreeable terms as to the form of Employment Agreement
which once so agreed, shall be attached to this document as Exhibit M. If in
good faith and using reasonable efforts the parties are unable to reach
agreement on mutually satisfactory terms as to the Employment Agreement within 5
business days after the date of this Agreement, either the Transferors or
Venture Holdings may thereafter terminate this Agreement as provided in Section
10.1(f) at any time prior to the time at which such Employment Agreement is
agreed to.
(b) Representations and Warranties. Each party hereto shall refrain
from taking any action which would render any representation or warranty
contained in Article VI or VII inaccurate as of the Closing Date, it being
understood that Material Contracts may be entered into after the date hereof and
prior to the Closing Date in the ordinary course of business, and Material
Contracts listed on the Disclosure Schedule may be performed in full after the
date of this Agreement and prior to the Closing Date, without any of such
actions resulting in a breach of a representation or warranty by the
Transferors.
(c) Use and Occupancy of Masonic Property and Harper Property.
(i) Masonic Property. The Transferors covenant and agree that,
during the period commencing on the date hereof and ending on the first to occur
of the Closing Date and the Termination Date, the Venture Entities shall be
permitted to use the Masonic Property. There shall be no use and occupancy fee
with respect to the Masonic Property, but Venture Holdings shall be responsible
for payment of those expenses with respect to the Masonic Property consistent
with a triple net lease.
(ii) Harper Property. The Transferors covenant and agree that,
during the period commencing on the date hereof and ending on the first to occur
of the Closing Date and the Termination Date, Venture Entities shall be
permitted to use the Harper Property in exchange for the use and occupancy fee
set forth in this subsection (c)(ii). Venture Holdings agrees to pay to the
Harper Partners a use and occupancy fee at the initial rate of $100,000 per
month, payable in advance (x) concurrently herewith, with respect to the period
commencing on
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the date hereof and ending on the last day of the month in which this Agreement
is executed, and (y) on the first day of each month, with respect to each
calendar month thereafter. Use and occupancy fees for any partial month shall be
prorated based on the number of days in such month for which such fee is
payable. In addition to payment of such use and occupancy fee, Venture Holdings
shall be responsible for payment of those expenses with respect to the
properties consistent with a triple net lease. The initial $100,000 monthly use
and occupancy fee for the Harper Property shall be subject to retroactive
adjustment to the date of this Agreement upon the determination of the fair
market rent therefor in accordance with subparagraph (iii). Following such
determination, the aggregate overpayment or underpayment (as compared to the
fair market value rent as finally determined) of rent from the date of this
Agreement to the date of such determination shall be paid (or, if future rents
are to be paid, credited against future rents) by the Harper Partners or Venture
Holdings, as the case may be, within fifteen days after such determination, for
the Harper Property.
(iii) Determination of Fair Market Value Rent. The parties
shall attempt in good faith to agree upon a fair market value rent (x) with
respect to the Harper Property, for both the use and occupancy period set forth
in subparagraph (ii), and (y) with respect to the Masonic Lease. If the parties
are unable to agree on such fair market value rents within 30 days after the
date hereof, they shall mutually select an independent appraiser who shall make
such determination. The determination of fair market value rent shall take into
account leasehold improvements actually paid for by the landlords thereunder to
the extent not reimbursed by the tenant. The parties shall also agree upon, or
the appraiser shall determine, the nature and timing of escalators for the rent,
taking into account the fact that the Harper Lease and the Masonic Lease will
each have a ten year term and two five year renewal options.
(d) Certain Notices. After the date hereof and prior to the Closing
Date, the Transferors, on the one hand, and Venture Holdings, on the other hand,
shall each give prompt written notice to the other upon learning of facts that
causes such party to believe that any representation and warranty of either
party contained in Article VI or Article VII is untrue or incorrect, and
specifying the respect in which it is untrue or incorrect.
ARTICLE VIII
LEASE ESCROW
Section 8.1 Leases. Concurrently with the execution of this
Agreement:
(a) Winget has caused each of Alicia Winget Living Trust, Larry J.
Winget Living Trust and Vimco Corporation (the "General Partners") and each of
A. James Schutz, Michael G. Torakis, Alicia Winget Living Trust, Annalisa
Winget, Gwendolyn May Winget, Larry Joseph Winget, Jr., Norman Matthew Winget
and Adelicia Jo Jean Tignanelli (the "Limited Partners," and together with the
General Partners, the "Harper Partners"), which Harper Partners own in the
aggregate 100% of the equity interests in Harper Properties of Clinton Township
Limited Partnership, a Michigan limited partnership, to execute a lease
agreement (the "Harper Lease"), in the form attached as Exhibit H hereto (and
with the rent and escalators determined pursuant to Section 7.1A(c)(iii), with
Venture Industries Corporation, a Michigan corporation ("Venture Industries"),
for the Harper Property;
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(b) Venture Real Estate Acquisition Company, a Michigan corporation,
has executed a lease agreement (the "Masonic Lease"), in the form attached as
Exhibit I hereto, with Venture Industries, for the Masonic Property; and
(c) Venture Equipment Acquisition Company has executed a usage
agreement (the "Equipment Usage Agreement," and collectively with the Harper
Lease and the Masonic Lease, the "Leases"), attached as Exhibit J hereto, with
Venture Industries, for all of the machinery and equipment located at 17085
Masonic, Fraser, Michigan.
(d) Concurrently with the execution of this Agreement, Winget shall
cause the executed Leases to be deposited with, and held in escrow by, First
American Title Insurance Company ("Escrow Agent") pursuant to the terms and
conditions of the Escrow Agreement in the form of Exhibit K, attached hereto
(the "Escrow Agreement"). The parties hereto agree that the Leases shall be held
in escrow and shall not become, or be considered, part of the bankruptcy estate
of the Debtors. Notwithstanding their execution, the Leases shall not be deemed
to have been delivered or be effective as of their date of execution; they shall
only become effective when and as therein provided.
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.1 Joint Conditions to the Obligations of the Transferors and
Venture Holdings. The obligations of the Transferors and Venture Holdings to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to the Closing Date, of each of the following
conditions unless waived by the Transferors, on the one hand, and Venture
Holdings (with the consent of the Agent), on the other hand:
(a) Governmental Consents. All consents, approvals and actions of,
filings with and notices to any Governmental Authority necessary to permit each
Transferor and Venture Holdings to perform their respective obligations under
this Agreement and to consummate the transactions contemplated hereby shall have
been duly obtained, made or given and shall be in full force and effect.
(b) No Proceedings. No suit, proceeding or investigation shall have
been commenced or threatened by a Governmental Authority on any grounds to
restrain, enjoin or prohibit the consummation of the transactions contemplated
hereby.
(c) Conditions to Closing Date. The Plan shall have been confirmed in
the form filed or in a form amended in accordance with Section 6.2(b). All of
the conditions to the effective date of the Plan shall have been satisfied,
other than the condition relating to the closing of the transactions set forth
in this Agreement.
(d) Commitment Letter for Exit Financing. Not later than the date of
the hearing on the Disclosure Statement, Debtors shall have obtained, and
executed and delivered, a commitment letter from one or more banks or financial
institutions for the Exit Financing, having a committed amount of $85.0 million
(or such other amount mutually agreed upon by Venture Holdings, Larry J. Winget
and the Agent), which Exit Financing shall be senior in lien
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and claim priority to the Bank Senior Notes and the Bank Junior Notes (each as
defined in the Plan) and otherwise on market terms acceptable to the Bank
Steering Committee Venture Holdings and Larry J. Winget.
(e) Disclosure Statement. The Disclosure Statement filed in connection
with the Plan shall be in form and substance consistent with the Plan and
otherwise reasonably satisfactory to the Transferors, Venture Holdings and the
Agent.
Section 9.2 Conditions to Obligations of the Transferors. In addition
to the satisfaction or waiver of each of the conditions set forth in Section
9.1, the obligation of the Transferors to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to the Closing Date, of each of the following conditions unless waived by the
Transferors:
(a) Issuance of Winget Interests. The Transferors shall have been
issued the Winget Interests.
(b) Assumption Agreement. Venture Delaware shall have delivered an
assumption agreement in a mutually agreeable form pursuant to which Venture
Delaware agrees to pay, perform and discharge the Assumed Liabilities.
(c) Representations and Warranties; Covenants. (A) The representations
and warranties made by Venture Holdings contained in Article VII shall be true
and correct in all material respects as if originally made on and as of the
Closing Date (except to the extent they expressly relate to an earlier date),
except as affected by the transactions contemplated by this Agreement; (B) the
covenants and agreements contained in this Agreement to be complied with by
Venture Holdings at or prior to the Closing Date shall have been complied with
in all material respects; and (C) the Transferors shall have received a
certificate from Venture Holdings as to the matters set forth in clauses (A) and
(B) above signed by Venture Holdings.
(d) Dismissal of Litigation. All rights in respect of litigation
brought by any of the Debtors against any of the Transferred Winget Entities and
pending as of the date hereof shall have been extinguished except to the extent
necessary to evaluate the same so that the value thereof may be taken into
account in the Creditors' Warrant.
(e) Feasibility. The Bankruptcy Court shall have entered the
Confirmation Order over any objections under 11 U.S.C. Section 1129(a)(11).
Notwithstanding Winget's agreement to support the Plan under Section 6.2(b),
Winget may raise an objection under 11 U.S.C. Section 1129(a)(11) (it being
understood that Winget's so doing shall not preclude him from terminating this
Agreement pursuant to Section 10.1(h)).
(f) Plan Satisfactory. The Plan, as confirmed by the Bankruptcy Court,
shall not have been modified from the form in which it was filed in a manner
which is materially adverse to the Transferors taken as a whole.
(g) Release of Liens and Guaranties. The Agent shall have released (x)
all liens and security interests which it holds for the benefit of the
Pre-Petition Lenders in (i) the Retained
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Entities, and (ii) the Retained Property, and (y) all liabilities of Winget
and/or any of the Retained Entities under any guaranties of obligations of
Winget or any of the Retained Entities to the Agent or the Pre-Petition Lenders.
(h) Other Transactions. All amounts due and owing to Winget and/or
Harper Partners pursuant to clauses (3) and (4) of Section 6.2(i) shall have
been paid in full.
(i) Resolutions. Each of the Debtors shall have delivered a true and
complete copy, certified by an authorized officer of the Debtors, of the
resolutions duly and validly adopted by the board of managers or board of
directors of the Debtors, evidencing such Debtors authorization of the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby.
(j) Organization of Venture Delaware. Venture Delaware shall have been
organized, and qualified as a foreign limited liability company, in accordance
with Section 7.1(a).
(k) Confirmation Order. The Confirmation Order shall be in a form
consistent with that agreed to by the parties pursuant to Section 7.1A(a)(i),
shall not have been modified in a manner which is materially adverse to the
Transferors, taken as a whole, and shall have been entered by the Bankruptcy
Court and not stayed. For purposes of this Section 9.2(k), a finding that the
Plan meets the requirements of 11 U.S.C. Section 1129(a)(11) over the objections
of Larry J. Winget shall not be deemed to be a modification which is materially
adverse to the Transferors, taken as a whole.
(l) Financing. The terms of the final Exit Financing shall be
consistent in all material respects with the terms of the commitment letter
executed by Venture Holdings on or prior to the date of the Disclosure Statement
hearing, with such changes as are not materially adverse to the Transferors,
taken as a whole.
Section 9.3 Conditions to Obligations of the Debtors. In addition to
the satisfaction or waiver of each of the conditions set forth in Section 9.1,
the obligations of the Debtors to consummate the transactions contemplated by
this Agreement shall be subject to the fulfillment, at or prior to the Closing
Date, of each of the following conditions unless waived by Venture Holdings
(with the consent of the Agent):
(a) Conveyancing Documents. Winget shall have, and shall cause each
Winget Entity to have delivered at the Closing Date such deeds, bills of sale,
stock powers, stock certificates and other conveyancing documents, as shall be
reasonably requested by Venture Holdings that are necessary and sufficient to
convey to Venture Delaware the Transferred Winget Entities and the Transferred
Assets, free and clear of any and all Liens, except Permitted Liens.
(b) Representations and Warranties; Covenants. (x) The representations
and warranties made by the Transferors in Article VI which are not qualified by
materiality or Material Adverse Effect shall be true and correct in all material
respects as if originally made on and as of the Closing Date (except to the
extent they expressly relate to an earlier date), and (y)
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the representations and warranties made by the Transferors in Article VI which
are qualified by materiality or Material Adverse Effect shall be true and
correct in all respects as if originally made on and as of the Closing Date
(except to the extent they expressly relate to an earlier date); (B) the
covenants and agreements contained in this Agreement to be complied with by the
Transferors at or prior to the Closing Date shall have been complied with in all
material respects; and (C) Venture Holdings shall have received a certificate
from the Transferors (including Winget) as to the matters set forth in clauses
(A) and (B) above signed by Winget and each other Transferor.
(c) Resolutions. The Transferors shall have delivered a true and
complete copy, certified by an authorized officer or trustee of each Transferor,
as applicable, of the resolutions duly and validly adopted by the board of
directors, trustee, equity owners, if necessary, or other governing body of each
Transferor (other than Winget but including the Larry J. Winget Living Trust)
evidencing its authorization of the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
(d) Third Party Consents. All material consents, approvals, permissions
or acknowledgments or notices, including those to be listed in the Disclosure
Schedule shall have been obtained or made, and Venture Holdings shall have
received reasonably acceptable written evidence thereof.
(e) Intellectual Property and Other Asset Assignments. Winget shall
have executed an assignment to Patent Holding Company of all of his interest in
connection with that certain lawsuit captioned Venture Industries Corporation,
Vemco, Inc., Patent Holding Company and Winget v. Autoliv ASP, Inc. and Autoliv,
Inc., Case No. 99-75354 and American Arbitration Case No. 14 133 02472 01 and
that certain lawsuit captioned Patent Holding Company v. Delphi Automotive
Systems Corporation, Case No. 99-76013 and shall have executed a standard
assignment of intellectual property to Patent Holding Company with respect to
any intellectual property of which he is the owner which is used in the conduct
of the Business.
(f) Confirmation Order. The Confirmation Order shall be in a form
consistent with that agreed to by the parties pursuant to Section 7.1A(a)(i),
shall not have been modified in a manner which is not reasonably satisfactory to
Venture Holdings and the Agent, and shall have been entered by the Bankruptcy
Court and not stayed.
(g) Financing. The terms of the final Exit Financing shall be
consistent in all material respects with the terms of the commitment letter
executed by Venture Holdings on or prior to the date of the Disclosure Statement
hearing, with such changes as are not materially adverse to Venture Holdings or
the Agent.
(h) Transferred Assets. Each Transferred Asset shall have been
contributed to a newly-formed "C" corporation, the stock of which shall be
contributed to Venture Delaware on the Closing Date.
(i) Tax Refund. Larry J. Winget shall have paid, without offset, to the
Agents on behalf of the Pre-Petition Lenders, in immediately available funds,
the full amount (approximately $800,000) of that certain federal income tax
refund which Larry J. Winget
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received on or about December 2002 and the amount owing to the Pre-Petition
Lenders by Venture Holdings shall be reduced on a dollar-for-dollar basis by the
amount of such refund. Any subrogation rights of Larry J. Winget shall be
preserved.
ARTICLE X
TERMINATION
Section 10.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by the mutual written consent of Venture Holdings (with the consent
of the Agent) and the Transferors;
(b) by Winget or Venture Holdings (with the consent of the Agent), if
any Governmental Authority with jurisdiction over such matters shall have issued
a Governmental Order restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby, and such Governmental
Order shall have become final and unappealable; provided, however, that the
provisions of this Section 10.1(b) shall not be available to any party unless
such party shall have used its commercially reasonable efforts to oppose any
such Governmental Order or to have such Governmental Order vacated or made
inapplicable to the transactions contemplated by this Agreement;
(c) by Winget or Venture Holdings (with the consent of the Agent) if
the case shall have been converted to a case under Chapter 7 of the Bankruptcy
Code;
(d) at any time before the Closing Date, by notice given by Venture
Holdings (with the consent of the Agent), in the event of a material breach of
this Agreement by any Transferor if such Transferor fails to cure such breach
within ten (10) Business Days following notification thereof by Venture
Holdings;
(e) at any time before the Closing Date, by notice given by Winget, in
the event of a material breach of this Agreement by Venture Holdings if Venture
Holdings fails to cure such breach within ten (10) Business Days following
notification thereof by Winget;
(f) by Winget or Venture Holdings (with the consent of the Agent), if
(v) the Debtors have not executed and delivered a commitment letter for the Exit
Financing in accordance with Section 9.1(d) on or prior to the date of the
Disclosure Statement hearing; (w) the Plan in the form agreed to in accordance
with Section 7.1A(a)(ii) has not been filed with the Bankruptcy Court by
September 24, 2003, (x) the form of Confirmation Order has not been agreed to in
accordance with the provisions of Section 7.1A(a)(i); (y) the form of Operating
Agreement has not been agreed to in accordance with the provisions of Section
7.1A(a)(iii); or (z) the Employment Agreement in the form agreed to in
accordance with the provisions of Section 7.1A(a)(iv) has not been executed
within 5 business days after the date hereof;
(g) by Venture Holdings (with the consent of the Agent), pursuant to
Section 6.2(g) if the Deliverables are not delivered during the Post-Signing
Schedule Period or if notice is otherwise given prior to the expiration of the
Review Period;
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(h) by either the Transferors or Venture Holdings (with the consent of
the Agent), if the Closing Date shall not have occurred prior to June 30, 2004;
provided, however, that the right to terminate this Agreement under this Section
10.1(h) shall not be available to any party whose failure to fulfill any
obligation under this Agreement shall have been the cause of, or shall have
resulted in, the failure of the Closing Date to occur prior to such date; or
(i) by either the Transferors or Venture Holdings (with the consent of
the Agent) if the Bankruptcy Court shall have denied confirmation of the Plan.
The date on which this Agreement is terminated pursuant to this Section
10.1 is referred to herein as the "Termination Date". Notwithstanding the
foregoing, if outside counsel to Venture Holdings advises Venture Holdings in
writing that it must terminate this Agreement as provided above because the
failure to terminate would breach its fiduciary duties, then the consent of the
Agent need not be required to effectuate such termination. Venture Holdings may
rely upon any consent by the Transferors if such consent is given by Winget on
behalf of the Transferors.
Section 10.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 10.1, this Agreement shall forthwith become
void and there shall be no liability on the part of any party hereto provided
that nothing herein shall relieve any party from liability for any breach of
this Agreement prior to the date of termination, and provided further that the
failure of a representation or warranty to be true and correct shall not entitle
a terminating party to sue for damages unless the failure of such representation
or warranty to be true and correct was known not to be true and correct as of
the date of this Agreement or as of the date of delivery of the Disclosure
Schedule. Upon termination, the Leases shall be released from the Escrow in
accordance with the Escrow Agreement. Nothing in this Article X shall affect the
Venture Holdings' (or the Agent's) or any other party's right to compel specific
performance (to the extent available under applicable law) in lieu of exercising
its termination rights.
ARTICLE XI
INDEMNIFICATION
Section 11.1 Indemnification from the Transferors.
(a) Provided that the Closing Date shall have occurred, the
Transferors, jointly and severally, shall, subject to the limitations and
qualifications set forth in Section 11.2, indemnify and hold harmless Venture
Delaware, the Debtors and their respective subsidiaries (other than the Venture
B Assets) for so long as and to the extent that such assets are subject to
insolvency proceedings under foreign laws) and their respective directors,
officers (other than Larry J. Winget), agents and assigns (collectively, the
"Venture Indemnified Parties") against any Losses that may be imposed on or
otherwise incurred or suffered by any of them, directly or indirectly, as a
result of, or based upon or arising from:
(i) any of the Excluded Liabilities;
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(ii) any inaccuracy or breach of any representation or
warranty of any of the Transferors contained in this Agreement or in any
document, certificate or other instrument delivered pursuant to this Agreement,
in each case determined as of the Closing Date as though made as of such time
(except for any representation and warranty which was made as of a specific
date, in which case determined as of such date);
(iii) the non-fulfillment or breach by any of the Transferors
or Winget of the any their respective covenants contained herein;
(iv) any Third Party Claims incurred or accrued prior to the
Closing Date in respect of the Transferred Winget Entities or the Transferred
Assets and which are required to be, but are not, disclosed in this Agreement
(including the Disclosure Schedule); and
(v) the violation of any law, rule or regulation prior to the
Closing Date, by Winget or any of the Transferred Winget Entities which is not
disclosed in this Agreement (including the Disclosure Schedule).
Section 11.2 Limitations on Transferors' Indemnification Obligations.
Notwithstanding anything to the contrary in this Agreement, the obligations of
the Transferors to make indemnification payments pursuant to Section 11.1 shall
be limited as follows:
(a) None of the Transferors shall have any liability for
indemnification pursuant to Section 11.1(a)(ii) unless and until the aggregate
amount of all Losses for which indemnification is sought by the Venture
Indemnified Parties pursuant to such Section exceeds $4 million (the
"Deductible"), and once such amount is exceeded, the Transferors shall be liable
only for amounts in excess of the Deductible and the aggregate liability of the
Transferors pursuant to such section shall not exceed $40 million (the "Cap");
provided, however, that the liability of the Transferors for Losses relating to
breaches of representations and warranties under Sections 6.1(b), (e), (m), (dd)
and (ff) shall not be subject to the Deductible or the Cap. For the sole purpose
of determining whether the Deductible has been satisfied, all references in
Section 6.1 to materiality or to Material Adverse Effect shall be disregarded.
(b) Notwithstanding anything in this Agreement to the contrary, the
liability of the Transferors for any Losses for which the Venture Indemnified
Parties would have an obligation of indemnification pursuant to Section
11.1(a)(ii) (as limited by Section 11.2) shall terminate on the eighteen month
anniversary of the Closing Date (the "Indemnity Termination Date") with respect
to claims for any such Losses not brought before such date (but will continue
until the final, unappealable resolution of all claims with respect to any
claims for which the Transferors have received written notice on or before the
Indemnity Termination Date); provided, however, that the liability of the
Transferors for Losses relating to breaches of representations and warranties
under Sections 6.1(b), (e), (m), (dd) and (ff) shall survive until 30 days after
expiration of the applicable statute of limitations.
(c) The representations and warranties of the Transferors contained in
Sections 6.1(w)(ii), (x), (y) or (z) shall not survive the Closing Date, and the
Venture Indemnified Parties shall have no right of indemnification, or other
recourse, against Winget in the event of any inaccuracy or breach of any of such
representations and warranties.
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(d) Except with respect to fraud, indemnification pursuant to this
Article XI shall be the sole remedy of the Venture Indemnified Parties in the
event of any inaccuracy or breach of any representation, warranty or (subject to
Section 12.10) covenant of the Transferors contained in this Agreement or in any
document, certificate or other instrument delivered pursuant to this Agreement.
With respect to fraud, Venture Holdings shall have all available legal and
equitable rights and remedies.
Section 11.3 Indemnification from Venture Holdings. Provided that the
Closing Date shall have occurred, Venture Holdings shall indemnify the
Transferors, their subsidiaries and their respective directors, officers, agents
and assigns (collectively, the "Winget Indemnified Parties") against and hold
them harmless from any Losses suffered or incurred by any of the Winget
Indemnified Parties to the extent arising or resulting from (i) any inaccuracy
or breach of any representation or warranty of Venture Holdings contained in
this Agreement as of the Closing Date as though made as of such time, (ii) the
Assumed Liabilities, or (iii) the non-fulfillment or breach by Venture Holdings
of any of its covenants contained herein.
Section 11.4 Mitigation. Prior to the assertion of any claims for
indemnification under Section 11.1 or 11.3, the Indemnified Party shall utilize
all reasonable efforts, consistent with normal practices and policies and good
commercial practice (and which shall in any event include, without limitation,
seeking recoveries under insurance policies), to mitigate such Losses. Recovery
pursuant to Section 11.1 or 11.3 shall in no event include any consequential,
speculative or punitive damages (except arising from Third Party Claims).
Section 11.5 Calculation of Losses. The amount of any Loss for which
indemnification is provided under this Article XI shall be net of any amounts
when and as recovered by the Indemnified Party under insurance policies with
respect to such Loss. The Indemnifying Party shall use commercially reasonable
efforts to seek recoveries under insurance policies and shall reimburse the
Indemnified Party for any Loss indemnified by it to the extent all or a portion
of such Loss (net of reasonable collection costs) is subsequently recovered by
Indemnified Party under any such insurance; provided, that the foregoing shall
not be construed to require immediate indemnification from an Indemnifying Party
where it is apparent that insurance will eventually cover the loss.
Section 11.6 Procedures Relating to Indemnification for Third Party
Claims.
(a) In order for an Indemnified Party to be entitled to any
indemnification provided for under this Agreement in respect of, arising out of
or involving a Third Party Claim, the Indemnified Party must notify (i) the
Indemnifying Party if the Third Party Claim is one for which Indemnifying Party
must give indemnification, in writing, and in reasonable detail, of the Third
Party Claim within 30 days after receipt by the Indemnified Party of written
notice of the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder except to
the extent that the ability to defend such claim or demand shall have been
prejudiced as a result of such failure (except that the Indemnifying Party shall
not be liable for any expenses incurred during the period prior to the giving of
such notice by the Indemnified Party if notice is not timely given). Thereafter,
the Indemnified Party shall deliver to the Indemnifying Party, within 10 days
after the Indemnified Party's receipt thereof,
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copies of all notices and documents (including court papers) received by the
Indemnified Party relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnified Party, the
Indemnifying Party shall have the right to assume the defense thereof with
counsel selected by the Indemnifying Party. Upon the Indemnifying Party assuming
the defense of the Third Party Claim, the Indemnifying Party shall not be liable
to the Indemnified Party for legal expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof. The Indemnified Party
shall have the right to participate in the defense thereof and to employ counsel
(not reasonably objected to by the Indemnifying Party), which shall be at its
own expense, separate from the counsel employed by the Indemnifying Party. In
the event the Indemnifying Party fails to assume the defense of a Third Party
Claim within 30 days after receipt of the notice for which the Indemnified Party
is entitled to be indemnified as provided above, the Indemnified Party may
defend the Third Party Claim consistent with its obligations hereunder, at the
expense and for the account of Indemnifying Party, and shall keep the
Indemnifying Party fully informed regarding the progress and status thereof. It
is understood that the party assuming the defense shall control such defense.
(i) All of the applicable Indemnified and Indemnifying Parties
shall cooperate with the party assuming the defense of any Third Party Claim
which is subject to this Article XI. Such cooperation shall include the
retention and the provision, to the party assuming the defense, of records and
information which are reasonably relevant to such Third Party Claim and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.
(ii) The party assuming the defense shall keep the applicable
Indemnified and Indemnifying Parties fully informed regarding the progress and
status thereof.
(iii) If the Indemnified Party has assumed the defense, it
shall not settle, compromise or discharge such Third Party Claim without the
prior written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld or delayed). If the Indemnifying Party has assumed the
defense, it shall not settle, compromise or discharge such Third Party Claim
without the prior written consent of the Indemnified Party if such settlement,
compromise or discharge requires the Indemnified Party to cease any activity or
to take any action (other than entering into an agreement setting forth the
terms of such settlement, compromise or discharge) or admit liability or consent
to the entry of a judgment against the Indemnified Party.
Section 11.7 Other Claims. In the event a party hereto should have a
claim under this Article XI that does not involve a Third Party Claim for which
it is entitled to be indemnified under this Article XI, such party shall deliver
written notice of such claim with reasonable promptness and stating the nature,
basis and amount of the claim in reasonable detail to the other party. The
failure by a party to so notify the other party shall not relieve any liability
under this Article XI, except to the extent that the ability to defend such
claim or demand shall have been prejudiced as a result of such failure. If a
party disputes the liability with respect to such claim, the parties shall
proceed in good faith to negotiate a resolution of such dispute and, if not
41
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resolved through negotiations, such dispute shall be resolved by litigation in
an appropriate court of competent jurisdiction, as provided in Section 12.14.
Section 11.8 Knowledge. It shall not be a defense, nor shall Venture
Holdings or the Transferors, as the case may be, be deemed to have waived or
released or otherwise be estopped from asserting any claim for indemnification
for breach of a representation, warranty or covenant by having consummated the
transactions contemplated hereby despite actual or constructive Knowledge of
such breach prior to the Closing Date.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Amendment. This Agreement and the rights and obligations of
the parties hereunder may not be changed orally, but only by an instrument in
writing signed by each of the Debtors, each of the Transferors, and the Agent.
Section 12.2 Survival of Representations, Warranties and Agreements.
Except as provided in Section 11.2, the representations and warranties of the
parties contained in this Agreement shall survive until the applicable Indemnity
Termination Date. The covenants to be performed after the Closing Date shall
survive indefinitely.
Section 12.3 Access to Records After Closing Date; Disposal of Records.
The parties to this Agreement agree to preserve until the seventh anniversary of
the Closing Date or as otherwise required by law all business and tax records
including, but not limited to, those records in their possession relating to the
conduct of the Business prior to the Closing Date. In the event that any party
to this Agreement requires access to any such records for preparing income tax
returns, for complying with any audit request, subpoena, or other investigative
demand by any governmental authority, third party, or for any civil litigation,
to bring or respond to or defend any claim, lawsuit, investigation or other
governmental inquiry or legal proceeding, to exercise their rights under this
Agreement or as may be required by them to otherwise conduct their business
activities, each party shall allow the requesting party access to such records,
including reasonable use of office space and facilities, during regular business
hours at the place of business of the nonrequesting party for the sole purpose
of obtaining information for use as provided for in this section, and shall
permit such party to make extracts and copies thereof as may be necessary or
convenient.
Section 12.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Michigan
applicable to contracts executed and fully performed within the State of
Michigan.
Section 12.5 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a party as shall be specified by like notice):
(a) In the case of the Transferors:
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Larry J. Winget
33662 James J. Pompo Drive
Fraser, Michigan 48026-0278
With copies to:
Allard & Fish P.C.
2600 Buhl Building
535 Griswold Street
Detroit, Michigan 48226
Attn.: Ralph McKee
Fax No.: (313) 961-6142
Greenberg Traurig, LLP
77 W. Wacker Drive
Suite 2400
Chicago, IL 60601
Attn.: Nancy Mitchell
Fax No.: (312) 456-8435
And copies to:
Bank One, N.A.
One Bank One Plaza
Chicago, IL 60170
Attn.: Linda Thompson
Fax No.: (312) 732-1775
Sidley Austin Brown & Wood LLP
Bank One Plaza
Chicago, IL 60603
Attn.: Larry J. Nyhan
Fax No.: (312) 853-7036
(b) In the case of Venture Holdings:
James E. Butler
Executive Vice President
Venture Holdings Company LLC
33662 James J. Pompo Drive
Fraser, Michigan 48026
Fax No.: (586) 276-1845
With a copies to:
Judy A. O'Neill
Foley & Lardner
43
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150 West Jefferson, Suite 1000
Detroit, Michigan 48226-4443
Fax No.: (313) 963-9308
Barbara A. Kaye
Dykema Gossett PLLC
315 E. Eisenhower, Suite 100
Ann Arbor, Michigan 48108
Fax No.: (734) 214-7696
Bank One, N.A.
One Bank One Plaza
Chicago, IL 60170
Attn.: Linda Thompson
Fax No.: (312) 732-1775
Sidley Austin Brown & Wood LLP
Bank One Plaza
Chicago, IL 60603
Attn.: Larry J. Nyhan
Fax No.: (312) 853-7036
Section 12.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement. Any such severed
provision shall be replaced by a provision which is as near as possible in legal
and economic effect. If it is not possible to do so, then the covenants,
agreements, provisions and terms of this Agreement shall not be severed, and the
validity of this Agreement shall be determined by reference to its entire
contents.
Section 12.7 Assignment. This Agreement may not be assigned by the
parties hereto except that Venture Holdings shall assign to Venture Delaware and
Venture Delaware shall assume the rights and obligations of Venture Holdings
under this Agreement upon the consummation of the Plan. No such assignment shall
relieve Venture Holdings of any of its obligations under this Agreement.
Section 12.8 Further Assurances. The Transferors and Venture Holdings
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the other
parties in order to more fully effect the purposes of this Agreement. Without
limiting the generality of the preceding sentence, from time to time after the
Closing Date, without further consideration, Winget shall, and shall cause the
other Transferors to, cooperate with Venture Holdings and shall execute and
deliver instruments of transfer or assignment or assumption, or shall execute
and deliver such other documents, to Venture Holdings as Venture Holdings
reasonably may request to evidence or perfect Venture
44
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Delaware's right, title and interest to the Transferred Winget Entities and
Transferred Assets and otherwise carry out the transactions contemplated by this
Agreement. Winget shall execute all documents reasonably required to be executed
by him in his capacity as a current or former officer and director of Venture
Holdings.
Section 12.9 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Transferors or Venture Holdings, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
Section 12.10 Specific Performance. Each of the parties hereto shall
have the right and remedy to have the terms of this Agreement specifically
enforced by any court of competent jurisdiction, including the Bankruptcy Court,
it being agreed that any breach or threatened breach of this Agreement would
cause irreparable injury and that money damages would not provide an adequate
remedy. Accordingly, in addition to any other rights or remedies, each of the
parties hereto shall be entitled to injunctive relief to enforce the terms of
this Agreement and to restrain any violation of its provisions. Without limiting
the foregoing in any respect, approval of this Agreement by the Bankruptcy Court
shall not be a condition to the rights of Venture Holdings and the Agent to
compel specific performance of the provisions of this Agreement, it being
understood and agreed by the parties hereto that the Bankruptcy Court will be
requested to approve this Agreement only in connection with confirmation of the
Plan.
Section 12.11 Counterparts. This Agreement may be executed in two or
more counterparts thereof (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 12.12 Binding Effect; Third-Party Beneficiaries. Notwithstanding
anything to the contrary contained herein, the parties acknowledge that the
obligations, representations and warranties of the Debtors are subject to the
approval of this Agreement by the Bankruptcy Court. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Without limiting the generality of the
foregoing, this Agreement shall inure to the benefit of and be binding upon
Venture Delaware. Except as provided in this Section 12.12, this Agreement shall
not create any rights in any persons or entities who are not parties hereto
(other than any Indemnified Parties who are not parties hereto), their
successors or permitted assigns, including without limitation any third party
beneficiary rights. Notwithstanding the foregoing, the Agent shall be deemed a
third party beneficiary of this entire Agreement with the ability to enforce the
obligations herein.
Section 12.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. The parties make no
representations or warranties to each other, except as contained in this
Agreement, and any and all prior representations and warranties made by any
party or its representatives, whether verbally or in writing, are deemed to have
been merged into this
45
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Agreement, it being intended that no such prior representations or warranties
shall survive the execution and delivery of this Agreement.
Section 12.14 Consent to Jurisdiction. Each of the parties irrevocably
submits to the jurisdiction of the Bankruptcy Court for the purposes of any
suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby until the Indemnity Termination Date.
Section 12.15 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 12.16 Tax Matters.
(a) The Transferors shall be responsible for all Income Taxes and the
preparation and filing of all such Income Tax returns for the Transferred Winget
Entities, exclusive of South Africa and Australia, for any period (or portion
thereof) commencing prior to and ending on or prior to the Closing Date.
Transferors shall be responsible for all Michigan Single Business Taxes for the
periods beginning before and ending on the Closing Date. For the Michigan Single
Business Tax period beginning before the Closing Date and ending after the
Closing Date, the Transferors shall be responsible for all such Michigan Single
Business Taxes, pro rated on an interim closing of the books basis. Venture
Holdings shall be responsible for preparing and filing returns for such period
and shall provide copies of all such returns to Winget for his review, not later
than ten (10) business days prior to filing. The Transferors shall make all
payments required under this Section 12.16(a) with respect to any such Taxes and
Tax returns. The Transferors shall be entitled to use all existing overpayments
made prior to the Closing Date and credits properly allocable to the periods
ending on or before the Closing Date with respect to such Taxes to reduce their
liability hereunder for such Taxes. Credits arising under the Michigan Single
Business Tax shall be pro-rated in the same manner and to the same extent as the
Michigan Single Business Tax, provided any credit specifically arising from a
Transferred Winget Entity's status as an "S" corporation shall be allocated to
the Transferors.
(b) Venture Holdings shall be responsible for all Taxes, and the
preparation and filing of all Tax returns, due after the Closing Date, (w) for
all Income Taxes of South Africa and Australia (excluding any liability for
withholding Taxes attributable to dividends or interest paid to Winget or his
affiliates or Income Taxes attributable to the transactions contemplated by this
Agreement or the Plan) for periods ending on or prior to the Closing Date, (x)
for all Tax obligations of the Transferred Winget Entities (exclusive of Income
Tax obligations, including Michigan single business Taxes, of the Transferred
Winget Entities other than those described in clause (w)) for periods ending on
or prior to the Closing Date, and (y) for all periods after the Closing Date
that relate to the ownership of the Winget Assets or the operations of the
Business of any Transferred Winget Entities during such periods; provided,
however, that the Transferors (and not Venture Holdings) shall be responsible
for any Taxes described in this subsection (b) to the extent such Taxes (i) were
due and owing but unpaid prior to the Closing Date, or (ii) relate to a breach
of a representation or warranty set forth in Section 6.1(m). Venture Holdings
will make all payments required with respect to any such Taxes or tax returns.
46
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(c) With respect to the taxable year of any Transferred Winget Entity
which, as of the date hereof, is a flow-through entity for federal income Tax
purposes and whose taxable year ends on the Closing Date, Winget shall have the
right to determine the method of accounting to be employed in the determination
of the taxable income of such Transferred Winget Entity for such taxable year,
as long as (i) such method is in accordance with applicable Tax laws and (ii)
such method does not have an adverse effect on the Taxes payable by or with
respect to the Transferred Entity for any period (or portion thereof) beginning
after the Closing Date (including any method that would have the effect of
deferring income to such periods or accelerating deductions prior to such
periods).
(d) For purposes of subsections (a) and (b) of this Section 12.16, any
Income Taxes attributable to a period beginning on or before and ending after
the Closing Date shall be allocated on a "closing of the books" basis by
assuming that the books of the respective entity were closed at the close of the
Closing Date. For the avoidance of doubt, any Income Taxes incurred as a result
of the cancellation of debt owed by a Transferred Winget Entity occurring by
virtue of the Plan will be allocated to the pre-Closing Date period.
(e) Venture Holdings shall have the right to receive a copy of all 2002
Transferred Winget Entity Income Tax Returns and any other Income Tax Returns
filed after the date of this Agreement.
Section 12.17 Release.
(a) Except for the obligations created by this Agreement or as provided
in Article V of this Agreement, and except as provided in paragraph (d) below,
as of the Closing Date, Winget, individually and as Trustee of the Larry J.
Winget Living Trust, each Transferor and each Retained Entity which is not a
Transferor (each a "Releasing Party") fully, finally and forever release and
agree to hold harmless the Debtors and all their respective successors, assigns,
officers, directors, stockholders, employees, lenders, affiliates, attorneys,
consultants, advisors (financial and otherwise), agents, representatives and all
Restructuring Professionals, and all of their respective heirs, representatives,
predecessors, successors, and assigns (in their capacity as such and not in any
other capacity) (collectively, the "Released Parties") from and against any and
all manner of action or actions, cause or causes of action, in law or in equity,
suits, debts, liabilities, claims, demands, damages, losses, costs and expenses,
of any nature whatsoever, known or unknown, fixed or contingent, foreseeable or
unforeseeable (collectively, the "Released Claims"), which such Releasing Party
may have at the Closing Date or may thereafter have against any of the Released
Parties by reason of any matter, cause or thing whatsoever from the beginning of
time to the Closing Date, other than claims arising under this Agreement (the
"Release").
(b) Each Releasing Party acknowledges that it may hereafter discover
facts different from or in addition to those which it now knows or believes to
be true with respect to the Released Claims which are the subject of the Release
and each Released Party expressly agrees to assume the risk of the possible
discovery of additional or different facts, and agrees that the Release shall be
and remain effective in all respects, regardless of such additional or different
facts.
47
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(c) All other releases among the parties shall be in accordance with
the Plan.
(d) Notwithstanding the preceding provisions of this Section 12.17, in
the event that any of the Released Parties shall, directly or derivatively,
commence or pursue any litigation against any of the Releasing Parties with
respect to any matter which arose prior to the Closing Date, or in the case of
any claim by any Venture Indemnified Party pursuant to Section 11.1, the
Releasing Parties shall have the right and ability to pursue any defense, offset
or counterclaim which they could assert against the Debtors in such litigation,
provided however that the amount of the Releasing Parties' recovery shall be
limited to the amount of recovery under the initial claim or as otherwise
provided in Article V.
(e) Paragraphs (a) and (b) of this Section 12.17 shall only be
effective if the Closing Date shall occur; otherwise, this Section 12.17 (other
than paragraph (d)) shall be null and void.
Section 12.18 Schedules and Exhibits. The Deliverables and exhibits
referred to herein, and the Disclosure Schedule, shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes. Any
information or matters contained in one section of the Disclosure Schedule shall
not be deemed to be referable or applicable to, or incorporated in, any other
section of the Disclosure Schedule unless specific reference is made thereto in
such schedule or where such information or matter, by its very nature and
substance, is reasonably referable or applicable to such other section of the
Disclosure Schedule. The inclusion of any item in the Disclosure Schedule is not
evidence of the materiality of such item for the purposes of this Agreement.
Section 12.19 Plan to Control. Notwithstanding anything in this
Agreement to the contrary, the Debtors are not, and shall not be deemed to be,
releasing any rights any of them otherwise has under the Plan. In the event of
any conflict or inconsistency between the terms of this Agreement and the terms
of the Plan, the terms of the Plan shall control.
[SIGNATURES APPEAR ON FOLLOWING PAGES.]
48
IN WITNESS WHEREOF, each Transferor, Venture Holdings and each of its
domestic subsidiaries has caused this Contribution Agreement to be duly executed
by their respective officers as of the day and year first above written.
VENTURE HOLDINGS COMPANY LLC
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VEMCO, INC.
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE INDUSTRIES CORPORATION
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE MOLD & ENGINEERING CORPORATION
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE LEASING COMPANY
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VEMCO LEASING, INC.
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE HOLDINGS CORPORATION
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE SERVICE COMPANY
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
EXPERIENCE MANAGEMENT LLC
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE EUROPE, INC.
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
VENTURE EU CORPORATION
By: /s/ JAMES E. BUTLER
--------------------------------------
Its: EVP
/s/ LARRY J. WINGET
--------------------------------------
Larry J. Winget
THE LARRY J. WINGET LIVING TRUST
By: /s/ LARRY J. WINGET
--------------------------------------
Larry J. Winget, Trustee under the
Larry J. Winget Living Trust
VENTURE SALES & ENGINEERING CORPORATION
By: /s/ LARRY J. WINGET
--------------------------------------
PIM, INC.
By: /s/ LARRY J. WINGET
--------------------------------------
The undersigned executes this Agreement solely with respect to the matters in
Article V.
GOLF COURSE SERVICES, L.L.C.
(d/b/a THE WYNDGATE)
By: /s/ THOMAS C. KRUEGER
--------------------------------------
Its: Manager
ACKNOWLEDGEMENT OF HARPER PARTNERS:
The undersigned, the Harper Partners, agree to be bound by the provisions
of Section 7.1A(c)(ii) of this Agreement with respect to any adjustment in rent
relating to the Harper Property.
THE ALICIA WINGET LIVING TRUST
By: /s/ ALICIA WINGET
--------------------------------------
Alicia Winget, Trustee under the
Alicia Winget Living Trust
THE LARRY J. WINGET LIVING TRUST
By:
--------------------------------------
Larry J. Winget, Trustee under the
Larry J. Winget Living Trust
VIMCO CORPORATION
By:
------------------------------
Its: Secretary Treasurer
A. JAMES SCHUTZ
---------------------------------
MICHAEL G. TORAKIS
---------------------------------
ANNALISA JOLENE TOTH
/s/ ANNALISA J. W. TOTH
---------------------------------
ACKNOWLEDGEMENT OF HARPER PARTNERS:
The undersigned, the Harper Partners, agree to be bound by the provisions
of Section 7.1A(c)(ii) of this Agreement with respect to any adjustment in rent
relating to the Harper Property.
THE ALICIA WINGET LIVING TRUST
By:
--------------------------------------
, Trustee under the
Alicia Winget Living Trust
THE LARRY J. WINGET LIVING TRUST
By: /s/ LARRY J. WINGET
--------------------------------------
Larry J. Winget, Trustee under the
Larry J. Winget Living Trust
VIMCO CORPORATION
By:
------------------------------
Its:
A. JAMES SCHUTZ
---------------------------------
MICHAEL G. TORAKIS
---------------------------------
ANNALISA WINGET
---------------------------------
ACKNOWLEDGEMENT OF HARPER PARTNERS:
The undersigned, the Harper Partners, agree to be bound by the provisions
of Section 7.1A(c)(ii) of this Agreement with respect to any adjustment in rent
relating to the Harper Property.
THE ALICIA WINGET LIVING TRUST
By:
--------------------------------------
, Trustee under the
Alicia Winget Living Trust
THE LARRY J. WINGET LIVING TRUST
By:
--------------------------------------
Larry J. Winget, Trustee under the
Larry J. Winget Living Trust
VIMCO CORPORATION
By: /s/ THOMAS C. KRUEGER
------------------------------
Its: Secretary Treasurer
A. JAMES SCHUTZ
---------------------------------
MICHAEL G. TORAKIS
---------------------------------
ANNALISA WINGET
---------------------------------
ACKNOWLEDGEMENT OF HARPER PARTNERS:
The undersigned, the Harper Partners, agree to be bound by the provisions
of Section 7.1A(c)(ii) of this Agreement with respect to any adjustment in rent
relating to the Harper Property.
THE ALICIA WINGET LIVING TRUST
By:
--------------------------------------
, Trustee under the
Alicia Winget Living Trust
THE LARRY J. WINGET LIVING TRUST
By:
--------------------------------------
Larry J. Winget, Trustee under the
Larry J. Winget Living Trust
VIMCO CORPORATION
By:
------------------------------
Its:
A. JAMES SCHUTZ
/s/ A. JAMES SCHUTZ
---------------------------------
MICHAEL G. TORAKIS
---------------------------------
ANNALISA WINGET
---------------------------------
ACKNOWLEDGEMENT OF HARPER PARTNERS:
The undersigned, the Harper Partners, agree to be bound by the provisions
of Section 7.1A(c)(ii) of this Agreement with respect to any adjustment in rent
relating to the Harper Property.
THE ALICIA WINGET LIVING TRUST
By:
--------------------------------------
, Trustee under the
Alicia Winget Living Trust
THE LARRY J. WINGET LIVING TRUST
By:
--------------------------------------
Larry J. Winget, Trustee under the
Larry J. Winget Living Trust
VIMCO CORPORATION
By:
------------------------------
Its:
A. JAMES SCHUTZ
---------------------------------
MICHAEL G. TORAKIS
/s/ MICHAEL G. TORAKIS
---------------------------------
ANNALISA WINGET
---------------------------------
GWENDOLYN MAY WINGET
/s/ GWENDOLYN MAY WINGET
---------------------------------
LARRY JOSEPH WINGET, JR.
/s/ LARRY JOSEPH WINGET, JR.
---------------------------------
NORMAN MATTHEW WINGET
---------------------------------
ADELICIA JO JEAN TIGNANELLI
/s/ ADELICIA TIGNANELLI
---------------------------------
GWENDOLYN MAY WINGET
---------------------------------
LARRY JOSEPH WINGET, JR.
---------------------------------
NORMAN MATTHEW WINGET
/s/ NORMAN MATTHEW WINGET
---------------------------------
ADELICIA JO JEAN TIGNANELLI
---------------------------------
EXECUTION COPY
EXHIBIT A
WINGET ENTITIES
Venture Sales & Engineering Corp.
Venture Real Estate, Inc.
Deluxe Pattern Corporation
Venco #1, L.L.C.
Realven Corporation
Venture Automotive Corp.
Patent Holding Company
Venture Equipment Acquisition Company
Venture Heavy Machinery Limited Liability Company
Venture Real Estate Acquisition Company
P.I.M. Management Company (a/k/a PIM, Inc.)
Venture Holdings B.V.
Venture Otto South Africa Pty Ltd.
Venture Peguform One (Pty) Ltd (formerly Formprops 117 (Pty)
Ltd)
Venture Peguform Two (Pty) Ltd (formerly HM Leibowith (Pty
Ltd)
Venture Peguform Properties One (Pty) Ltd (formerly Venture
Otto Properties (Pty) Ltd)
Lot Progress Properties (Pty) Ltd
Venture Peguform Properties Two (Pty) Ltd (formerly Lot 1544
Isipingo (Pty) Ltd)
ISG Gauteng (Pty) Ltd
ISG Natal (Pty) Ltd
ISG East Cape (Pty) Ltd
AIC Chemicals (Pty) Ltd
Farm & Country Real Estate Company
Venture - Nevada LLC
Shelby American, Inc. (75% owned by Venture Nevada)
Venture Asia Pacific Pty. Ltd.
Venture Industries Australia Pty. Ltd.(Plastics Plant)
Venture Mould & Engineering Australia Pty. Ltd.(Metro Tool & Die)
Millard Design Australia Pty. Ltd.
EX-1
EXECUTION COPY
Venture Advance Design Engineering Australia Pty. Ltd. (formerly
Venture Technology Development Corporation Pty. Ltd.)
Venture Engineering Design Services Australia Pty Ltd
Venture Australia Unit Trust
Venture Global Engineering
Venture Foreign Sales
Pompo Insurance and Indemnity, Ltd.
Vimco Corp.
MGT Construction
Center for Lean Manufacturing
Venco Mgt.
VIC Management
VIRN/VIR/VIRN Holdings
EX-2
EXECUTION COPY
EXHIBIT B
TRANSFERRING WINGET ENTITIES
Venture Sales & Engineering Corp.
P.I.M Management Company
EX-3
EXECUTION COPY
EXHIBIT C
[INTENTIONALLY OMITTED]
EX-4
EXECUTION COPY
EXHIBIT D
RETAINED PROPERTY
(AND RETAINED ENTITIES)
RETAINED PROPERTY
1. Membership interests in VIC Management, L.L.C. and Venture Global
Engineering LLC owned by Deluxe Pattern Corporation
2. Receivable owed to Farm & Country Real Estate by Joseph Tignanelli
($366,652 as of 7/31/03)
3. Receivable owed to Venture Real Estate, Inc. by Larry Winget
($150,000 as of 7/31/03)
4. The following accounts receivable of Heavy:
PIM Management Company $5,285,388
Venco #1 LLC $4,066,807
Venture Global Engineering $262,887
Venture Global Engineering (Supercart) $1,500,000
Larry J. Winget $12,074,425
5. The following additional accounts receivable of Heavy:
Venture Universal, LLC $4,301,786
Supercart $1,211.101
VIRN $36,675
RETAINED ENTITIES
Acropolis Resort, LLC
Adams Road Land Co., LLC
Center for Lean Manufacturing
FTS
Golf Course Corporation I
Golf Course Development Company
Golf Course Services, LLC
Harper Properties of Clinton Twp. Limited Partnership
Linden Creek
M&M Flow Through Systems, LLC
MAST Services, LLC
MGT Construction, Inc.
EX-5
EXECUTION COPY
Millard ESP
Modas LLC
Venture - Modas, Inc.
Moldite Technologies LLC
Nova Industries, Inc.
Oakland Land Company
Ohio Golf Corporation
Ohio Golf Course Land Company
P.I.M. Management Company (a/k/a PIM, Inc.)
Pompo Insurance & Indemnity Company, Ltd.
Shefco
Supercart Holdings Pty., Ltd.
Satyam Venture Engineering Services (SVES)
Tignanelli Interiors
Venture - Universal, LLC
Universal Plastic Industries, Inc. (a/k/a Universal Venture
Automotive)
Venco Mgmt.
Venture Australia Unit Trust
Venture Corporacion Desarroladorade Technologia
Venture Foreign Sales Corporation
Venture Global Engineering LLC
VIC Management, L.L.C.
Vimco Corporation
VIR Company, LLC/ VIRN Company, LLC/ VIRN Holdings, LLC
Windall Industries, Inc
Venture Sales & Engineering Corp.
Venture Alabama, LLC
EX-6
EXECUTION COPY
EXHIBIT E
TRANSFERRED WINGET ENTITIES
Venture Real Estate, Inc.
Deluxe Pattern Corporation
Venco #1, L.L.C.
Realven Corporation
Venture Automotive Corp.
Patent Holding Company
Venture Equipment Acquisition Company
Venture Real Estate Acquisition Company
Venture Heavy Machinery Limited Liability Company
Venture Holdings B.V.
Venture Otto South Africa Pty Ltd.
Venture Peguform One (Pty) Ltd (formerly Formprops 117 (Pty) Ltd)
Venture Peguform Two (Pty) Ltd (formerly HM Leibowith (Pty) Ltd)
Venture Peguform Properties One (Pty) Ltd (formerly Venture Otto Properties
(Pty) Ltd)
Lot Progress Properties (Pty) Ltd
Venture Peguform Properties Two (Pty) Ltd (formerly Lot 1544 Isipingo (Pty)
Ltd)
ISG Gauteng (Pty) Ltd
ISG Natal (Pty) Ltd
ISG East Cape (Pty) Ltd
AIC Chemicals (Pty) Ltd
Farm & Country Real Estate Company
Venture - Nevada LLC
Shelby American, Inc. (75% owned by Venture Nevada)
Venture Asia Pacific Pty. Ltd.
Venture Engineering Design Services Australia Pty Ltd
Venture Industries Australia Pty. Ltd. (Plastics Plant)
Venture Mould & Engineering Australia Pty. Ltd. (Metro Tool & Die)
Millard Design Australia Pty. Ltd.*
Venture Advance Design Engineering Australia Pty. Ltd. (formerly Venture
Technology Development Corporation Pty. Ltd.)
EX-7
EXECUTION COPY
EXHIBIT F
TRANSFERRED ASSETS
Sales Representation Agreement effective as of January 1, 2000 between
Venture Industries Australia Pty. Ltd. and VSE, and any amendments thereto
Sales Representation Agreement effective as of January 1, 2000 between
Venture South Africa Pty. Ltd. and VSE, and any amendments thereto
EX-8
EXECUTION COPY
EXHIBIT G
[INTENTIONALLY OMITTED]
EX-9
EXECUTION COPY
EXHIBIT H
HARPER LEASE
EX-10
LEASE AGREEMENT
THIS LEASE is made between the following parties:
LANDLORD: HARPER PROPERTIES OF CLINTON TWP. LIMITED PARTNERSHIP, a Michigan
limited partnership, whose address is 33662 James J. Pompo Drive,
Fraser, Michigan 48026.
TENANT: VENTURE INDUSTRIES CORPORATION, a Michigan corporation, whose
address is 33662 James J. Pompo Drive, Fraser, Michigan 48026.
SUMMARY OF LEASE TERMS.
The following summary (the "Summary") is intended to summarize the pertinent
terms of this Lease and is not intended to be exhaustive. In the event anything
set forth in this Summary conflicts with the other specific provisions of this
Lease, the specific provisions of the Lease shall be deemed to control in the
absence of expressed contrary intent.
A. THE PREMISES.
Approximately 180,000 square feet of space located in the Township of
Clinton, County of Macomb, State of Michigan commonly known as 34501
Harper Avenue, Clinton Township Michigan as more particularly described
in EXHIBIT "A", subject to the provisions of Section 1 of this lease.
B. THE TERM.
COMMENCEMENT DATE: Subject to the provisions of Section 2 of this
lease.
EXPIRATION DATE: The lease shall expire ten (10) years from the
Commencement Date, subject to Tenant's option to extend the Term (as
hereinafter defined) and Tenant's option to terminate this Lease, in
each case, pursuant to Section 2.01 of this Lease.
C. RENT.
BASE RENT: Tenant shall pay Base Rent in equal monthly installments as
set forth in Section 3.01.
D. TENANT'S PROPORTIONATE SHARE . . . . . . . . . . . . . . . . . . . 100%
E. [INTENTIONALLY OMITTED]
F. LIMITS OF INSURANCE.
1. If dual limits: Bodily Injury: $1,000,000 per person
$2,000,000 per
occurrence
Property Damage: $2,000,000 per
occurrence
2. If single limit: $2,000,000
G. USE AND OCCUPANCY OF THE PREMISES.
1. General industrial use and incidental and ordinary related
uses.
STANDARD COVENANTS, TERMS AND CONDITIONS
SECTION 1: PREMISES AND TENANT IMPROVEMENTS
1.01 In consideration of the rent to be paid and the covenants and agreements
to be performed hereunder, Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the premises described in paragraph A of the
Summary (the "PREMISES"), located in the building, commonly known as
34501 Harper Avenue, Clinton Township, Macomb County, Michigan (the
"BUILDING") and the nonexclusive use of the other common areas in or
appurtenant to the Building and located on the Real Estate (as
hereinafter defined).
1.02 AMENDED PREMISES. Landlord shall have the right, exercisable at any point
during the Term (including any extension thereof), to recapture a portion
of the Premises from Tenant (the "RECAPTURE RIGHT"). In the event
Landlord elects to exercise the Recapture Right, Landlord shall provide
Tenant with a separate legal description for the common areas in or
appurtenant to the Building (the "VACANT AREA PARCEL") and for the
Building and the necessary parking areas for the operation of the
Building (the "BUILDING PARCEL"). The Vacant Area Parcel and the Building
Parcel shall be depicted in a survey detailing the boundaries of the
separate parcels and the location of all structures on the parcels. The
cost of the survey and division of the Premises into the Vacant Area
Parcel and the Building Parcel shall be paid by the Landlord.
Upon the production of the separate legal descriptions and survey this
Lease shall be deemed to be amended to substitute the Building Parcel for
the Premises. Landlord and Tenant shall thereafter execute an amendment
to the Lease pursuant to which the Lease is modified to substitute the
Building Parcel for the Premises. Upon the exercise of the Recapture
Right, Landlord shall be free to use and dispose of the Vacant Area
Parcel, subject to the restrictions set forth in this Lease. Thereafter,
the Vacant Area Parcel shall be maintained by the Landlord at the
Landlord's sole cost in a manner reasonably acceptable to the Tenant
including the weekly landscape maintenance and Landlord shall be
responsible for the real estate taxes assessed to the Vacant Area Parcel.
If the Vacant Area Parcel is not assessed separately from the Building
Parcel, then Landlord and Tenant shall each be responsible for their
proportionate share of the real estate taxes for the Premises based on
the square footage of the Premises as depicted by the survey. Tenant
shall be responsible for all taxes assessed against the improvements
located on the Building Parcel. Landlord shall assume sole responsibility
and liability for the Vacant Area Parcel and shall indemnify the Tenant
from any claim arising out of the Vacant Area Parcel.
1.03 VACANT AREA PARCEL - RIGHT OF FIRST OFFER. Landlord shall not lease,
sell, or transfer the Vacant Area Parcel and/or Building Parcel to
another party, or enter into a contract with any such other party for the
lease, sale, or transfer, of the Vacant Area Parcel or the Building
Parcel, without first giving Tenant written notice of Landlord's intent
to lease, sell, or transfer the Vacant Area Parcel or Building Parcel, as
the case may be (the "LANDLORD'S NOTICE"). Landlord's Notice shall
include a written offer to lease or sell the Vacant Area Parcel and/or
Building Parcel, as the case may be, to Tenant at a price and on terms
and conditions that shall be set forth in the Landlord's Notice.
Tenant shall have thirty (30) days after the receipt of Landlord's Notice
within which to notify Landlord whether it wishes to lease or purchase
the Vacant Area Parcel and/or Building Parcel, as the case may be. If
Tenant wishes to either purchase or lease the Vacant Area Parcel and/or
Building Parcel, Tenant shall make a written acceptance of Landlord's
offer contained in the Landlord's Notice to the Landlord to either lease
or purchase the Vacant and/or Building Parcel (the "TENANT'S NOTICE"). If
Tenant does so notify Landlord, then Tenant shall be bound to lease or
purchase the Vacant Area Parcel and/or Building Parcel, as the case may
be, and Landlord shall be bound to sell or lease the Vacant Parcel and/or
Building Parcel, as the case may be, to Tenant, at the price or rent on
the terms and conditions set forth in the Landlord's Notice. If Tenant
does not so notify Landlord within such thirty (30) day period, then
Landlord shall be free to contract to sell or lease the Vacant Area
Parcel and/or Building Parcel to any third-party provided such sale or
lease is at a purchase price or rent term not less than ninety-five
percent of the purchase price or rent term set forth in the Landlord
Notice and on terms and conditions
2
not materially more favorable to the third party than those set forth in
the Landlord's Notice.
SECTION 2: TERM; OPTION(S) TO EXTEND AND TERMINATE
2.01 TERM. The "TERM" shall commence (the "COMMENCEMENT DATE") upon release of
this Lease to the Tenant pursuant to and in accordance with the terms of
the Escrow Agreement among Larry J. Winget, Venture Holdings Company, LLC
and First American Title Insurance Company, dated September 22, 2003. The
Lease shall not be enforceable until approval is received by the United
States Bankruptcy Court.
The Term will expire on the Expiration Date shown in Paragraph B of the
Summary, subject to Tenant's option(s) to extend the Term pursuant to
this Section 2.01.
OPTION TO EXTEND. Provided the Tenant is not then in default under this
Lease, the Tenant shall have the option to extend the Term of this Lease
for two (2) additional periods of FIVE (5) years each (each, an "OPTION
PERIOD"). Tenant shall exercise each said option by giving the Landlord
written notice of such election not less than one hundred and eighty
(180) days prior to the expiration of the then existing term. All terms
and conditions of this Lease shall remain the same, except that the Base
Rent for each five (5) year Option Period shall be determined either by
(i) the agreement of Landlord and Tenant as to fair market value rent or
(ii) the determination of an independent appraiser mutually selected by
Landlord and Tenant, as to fair market value rent based on similar
facilities, locations, business operations, and taking into account the
leasehold improvements actually paid for by the Landlord thereunder to
the extent not reimbursed by the Tenant.
However, notwithstanding anything to the contrary contained herein or in
the Lease, the amount of Base Rent due under the Lease shall never
decrease below the Base Rent charged during the proceeding year of the
Lease, or the Base Rent charged during the first year of the Lease,
whichever is greater
In making any calculations hereunder, no effect shall be given to
existing rent concessions, abatements, or tenant improvement allowances
(if any).
SECTION 3: BASE RENT
3.01 Tenant shall pay to Landlord Base Rent in monthly installments during the
Term. The initial Base Rent shall be the fair market value rent as
determined pursuant to that certain Contribution Agreement between Larry
J. Winget and The Larry J. Winget Living Trust, the Other Transferors
named therein, and Venture Holding Company, LLC dated September 22, 2003,
(the "CONTRIBUTION AGREEMENT") provided, however, that if the Term
commences pursuant to Section 2.01 prior to a determination of fair mark
rent value rent under the Contribution Agreement then the rent shall be
determined either by (i) the agreement of the Landlord and the Tenant as
to the fair market value rent or (ii) the determination of an independent
appraiser mutually selected by the Landlord and the Tenant, as to the
fair market value rent based on similar facilities, locations, business
operations, and taking into account the leasehold improvements actually
paid for by the Landlord thereunder to the extent not reimbursed by the
Tenant. During each Option Period, Base Rent shall be determined in the
manner described in Section 2.01.
3.02 Each monthly installment of rent will be paid in advance in the manner
set forth in Section 5 hereof. The first installment shall be due and
payable on the Commencement Date and each succeeding installment shall be
due and payable on the first day of each and every month thereafter (the
"RENT DAY") during the Term and any extension thereof at the office of
the Landlord at the address shown on the cover page of this Lease or at
such other place as Landlord may designate from time to time in writing.
The Base Rent and Operating Costs, subject to Section 4.01(ii), for a
partial calendar month, if any, at the beginning of the Term shall be
prorated on a daily basis (based on the actual number of days in the
applicable calendar month) and shall be payable on the Commencement Date.
3
SECTION 4: OPERATING COSTS
4.01 DEFINITIONS
(i) "REAL ESTATE TAXES" means real estate taxes and assessments,
general and special, assessed and levied upon the Building and the
Real Estate. The "BUILDING" means the Building of which the
Premises are a part and "REAL ESTATE" means the land on which the
Building is situated and, as and to the extent designated by
Landlord, the parking areas, walks, drives, plazas, landscaped
areas and other common areas located on the Real Estate and
serving the Building. For purposes of calculating Real Estate
Taxes hereunder, Landlord may take the benefit of the provisions
of any statute or ordinance permitting any assessment to be paid
over a period of time and the installments of such assessment
which would become due and payable by virtue of such provisions
during the Term of this Lease or any extension hereof, together
with any interest thereon, will be included in the calculation of
Real Estate Taxes. In the event that the United States or the
city, county, state or other political subdivision of any
governmental authority having jurisdiction imposes a tax,
assessment or surcharge of any kind or nature upon, against,
measured by or with respect to the rentals payable by the tenants
of the Building or on the income of Landlord derived from the
Building (expressly excluding any portion of Landlord's Michigan
Single Business Tax), or with respect to Landlord's ownership of
the Building and the Real Estate either by way of substitution for
all or any part of the taxes and assessments levied or assessed
against the Building and the Real Estate, or, in addition thereto
(but not including federal, state or local income taxes unless
levied by way of substitution), such tax, assessment or surcharge
will be deemed a Real Estate Tax for purposes of this Section. In
no event shall the Real Estate Taxes include any penalty or
interest charge which may be due by virtue of Landlord's late or
non-payment thereof. In addition, the term "Real Estate Taxes"
shall not include any taxes measured by the net income of
Landlord, franchise, succession, inheritance or real estate
transfer taxes.
(ii) "OPERATING COSTS" Tenant shall pay as Operating Costs hereinafter
referred to as the "Operating Costs") all operating costs and
impositions for the Building as set forth in this Section. Tenant
shall make all payments of Operating Costs directly to the parties
entitled to receive such payments. Impositions to be paid by
Tenant shall include, collectively, all real estate taxes (subject
to Section 1.02) on the Premises (including without limitation
those levied by special taxing districts) or the use, lease,
ownership or operation thereof, personal property tax on the
property covered by this Lease that is classified by governmental
authorities as personal property, assessments (including all
assessments for public improvements or benefits) water, sewer, gas
heat, light, power, cable television, and any other utility
assessment or other rents and charges, excises, levies, fees and
all other governmental charges of any kind or nature whatsoever,
general or special, foreseen or unforeseen, ordinary or
extraordinary, with respect to the Premises or any part thereof,
including all interest and penalties thereon, which at any time
prior to, during or with respect to the Initial Term may be
assessed or imposed on or with respect to or be a lien upon
Landlord or the Premises or any part thereof or any rent therefrom
or any estate, title or interest therein and any and all community
associations, and/or association charges, fees, dues and
assessments, and interest and penalties thereon. Operating Costs
to be paid by Tenant shall include any and all expenses, costs and
disbursements of every kind and nature whatsoever, which are
required to operate, repair, maintain, replace and rebuild the
Premises and every component thereof in comparable condition as it
was at the commencement of this Lease and in compliance with
Applicable Laws and in accordance with the requirements of any
insurance carrier providing insurance under this Lease. Operating
Costs shall exclude only the following: (i) any interest on
borrowed money or debt amortization arising by, through, or under
Landlord (except interest incurred after an in connection with a
Default by Tenant); (ii) depreciation on the Building; and (iii)
costs of Landlord's overhead.
4
SECTION 5: MANNER OF PAYMENT
5.01 The Base Rent, Operating Costs and all other charges payable by Tenant
hereunder will be paid promptly when due, without relief from valuation
laws, notice or demand therefor, and without deduction, abatement,
counterclaim or setoff for any reason whatsoever, except as otherwise
provided herein. All amounts payable by Tenant to Landlord under the
provisions of this Lease will be paid by Tenant in lawful money of the
United States at the place herein provided for notices to Landlord or at
such other place or to such other person as Landlord may from time to
time designate by notice to Tenant.
5.02 In the event the amount of the Real Estate Taxes are not contested by
Landlord, then Tenant, upon written notice to Landlord, shall have the
right to contest the amount of the Taxes at Tenant's sole cost and
expense, by the appropriate proceedings diligently contested in good
faith. Notwithstanding such proceedings, Tenant shall promptly pay and
discharge such Taxes and any penalties or interest assessed thereon,
unless such proceedings and the posting of a bond or other security shall
(a) operate to prevent or stay the collection of the Taxes and secure any
accruing penalties or interest and (b) operate to cure Landlord's default
in the payment of Taxes required under any mortgage upon the Demised
Premises. Landlord agrees to join Tenant in such proceedings, if
necessary, provided Tenant pays all costs and expenses incurred by
Landlord, including actual attorneys' fees.
SECTION 6: DELINQUENT PAYMENTS
6.01 If Tenant neglects or fails to pay within five (5) days after the date it
receives a written notice from Landlord that the same is due and payable,
any Base Rent, Operating Costs or any other amount required to be paid to
Landlord under this Lease, Tenant shall pay to Landlord, in addition to
such unpaid amounts, a late payment charge and interest upon such unpaid
amounts from five (5) days after the due date thereof to the date of
payment at the Applicable Rate as defined in subparagraph (ii) of this
paragraph 6.01.
(i) LATE PAYMENT CHARGES. Tenant acknowledges that late payment
by Tenant to Landlord of Base Rent or any other amount
required to be paid to Landlord under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the
exact amount of which is extremely difficult and
impracticable to ascertain. Such administration costs
include, without limitation, processing and accounting
charges and late charges that may be imposed upon Landlord
by virtue of its debt obligations. Accordingly, if Tenant
fails to make any of such payments within five (5) days
after Tenant's receipt of written notice from Landlord that
such payment is due, Tenant shall pay a late charge (in
addition to the interest payable under subparagraph (ii)
below) equal to Two Hundred Fifty Dollars ($250.00). The
parties acknowledge that such late charge represents a fair
and reasonable estimate of the administrative costs
Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no
event constitute a waiver of Tenant's default with respect
to such overdue amount nor prevent Landlord from exercising
any of the other rights and remedies granted hereunder.
(ii) INTEREST CHARGE; APPLICABLE RATE. If Tenant neglects or
fails to pay, within five (5) days after the date the same
is due and payable, any Base Rent or any other amount
required to be paid to Landlord under this Lease, Tenant
will pay an interest charge on all such unpaid amounts
(other than the late payment charge) at an applicable rate
per annum equal to two percent (2%) over the prime interest
rate charged by Comerica Bank of Detroit ("COMERICA PRIME")
to its best commercial customers on the date when the sum
becomes due, but not in excess of the maximum interest rate
permitted by law. This obligation to pay late charges and
interest will exist in addition to and not in lieu of the
other default provisions in this Lease.
5
(iii) MAXIMUM CHARGE. Notwithstanding the foregoing provisions of
this Section, in no event shall the amounts charged under
this Section exceed the maximum amount which may be
lawfully charged by Landlord under applicable law. In the
event the amounts provided for under this Section shall
exceed such lawful charge, then the amounts payable under
this Section shall be reduced to the maximum amount of such
lawful charge.
SECTION 7:
7.01 [INTENTIONALLY OMITTED]
SECTION 8: BREACH; INSOLVENCY; REENTRY
8.01 If any rental payable by Tenant to Landlord remains unpaid for more than
five (5) days after Tenant's receipt of written notice of nonpayment or
if Tenant violates or defaults in the performance of any of its
non-monetary obligations in this Lease (including the Rules and
Regulations) and the non-monetary violation or default continues for a
period of thirty (30) days after Tenant's receipt of written notice, then
Landlord may (but will not be required to) declare this Lease forfeited
and the Term ended, or reenter the Premises, or may exercise all other
remedies available under Michigan law. If any non-monetary default is one
that will reasonably require more than thirty (30) days to correct,
Tenant shall not be deemed to be in default hereof if, after receiving
written notice of non-performance from Landlord, Tenant has promptly
commenced the curing of such default and is diligently pursuing the same
to completion. Except for the negligence or intentional act or omission
of Landlord, its agents, contractors or employees, Landlord will not be
liable for damages to person or property by reason of any legitimate
reentry or forfeiture. In the event of reentry by Landlord without
declaration of forfeiture, the liability of Tenant for the rent provided
herein will not be relinquished or extinguished for the balance of the
Term. Tenant will pay, in addition to the rental and other sums agreed to
be paid hereunder, reasonable attorneys' fees, costs and expenses in any
suit or action instituted by or involving Landlord to enforce the
provisions of or the collection of the rentals due Landlord under this
Lease, including, subject to applicable law, any proceeding under the
Federal Bankruptcy Code.
8.02 Subject to the provisions set forth in this Section 8.02, if Tenant is
adjudged bankrupt or insolvent, files or consents to the filing of a
petition in bankruptcy under Federal or State law, applies for or
consents to the appointment of a receiver for all or substantially all of
its assets, makes a general assignment for the benefit of its creditors,
fails generally to pay its debts as they become due, or does anything
which under the applicable provisions of the Federal Bankruptcy Code
would permit a petition to be filed by or against Tenant, then Tenant
shall be in default under this Lease and, to the extent from time to time
permitted by applicable law, including but not limited to the Federal
Bankruptcy Code, Landlord shall be entitled to exercise all remedies set
forth in the preceding paragraph in this Section 8. Tenant acknowledges
that its selection to be a tenant of the Building was premised in
material part on Landlord's determination of Tenant's creditworthiness
and ability to perform the economic terms of this Lease and Landlord's
further determination that Tenant and the character of its occupancy and
use of the Premises would be compatible with the nature of the Building
and the other tenants thereof. In the event of an assignment, Landlord
must be assured that the financial condition of the assignee is sound and
that its use of the Premises will be compatible with the Building and its
other tenants. The provisions of this Section 8.02 shall be enforced to
the full extent permitted under the applicable provisions of the Federal
Bankruptcy Code.
8.03 In the event of declaration of forfeiture at or after the time of
reentry, Landlord may re-lease the Premises or any portion(s) of the
Premises for a term or terms and at a rent which may be less than or
exceed the balance of the Term and the rent reserved under this Lease. In
such event Tenant will pay to Landlord, as liquidated damages for
Tenant's default, any deficiency between the total rent reserved and the
net amount, if any, of the rents collected on account of the lease or
leases of the Premises which otherwise would have constituted the balance
of the Term of this Lease. In computing such liquidated damages, there
will be added to the deficiency any reasonable expenses which Landlord
may incur in connection with re-leasing, such as legal expenses,
attorneys' fees,
6
brokerage fees and expenses, advertising and for keeping the Premises in
good order or for preparing the Premises for re-leasing. Any such
liquidated damages will be paid in monthly installments by Tenant on the
Rent Day and any suit brought to collect the deficiency for any month
will not prejudice Landlord's right to collect the deficiency for any
subsequent month by a similar proceeding.
8.04 Notwithstanding anything to the contrary contained in this Lease,
Landlord and Tenant shall each have the duty and obligation to mitigate,
in every reasonable manner, any and all damages that may or shall be
caused or suffered by virtue of defaults under, or violations of any of
the terms and provisions of, this Lease committed by the other party.
SECTION 9: FACILITIES; UTILITIES; SERVICES
9.01 [INTENTIONALLY OMITTED]
SECTION 10: INJURIES TO PERSONS AND PROPERTY
10.01 Except for the negligence or intentional acts or omissions of Landlord,
its agents, contractors or employees, Landlord will not be liable for
injury to person or property arising out of the acts, omissions or
neglect of any tenant, its servants, agents, employees, invitees,
visitors or licensees, or other occupants of or visitors to the Building
or the Premises, or of any person in or about the Building or the
Premises, or of owners or occupants of or persons on or about surrounding
properties; nor for injury to persons or property arising out of patent
or latent defects, structural or otherwise, in the Building or any
appurtenance thereof, or arising out of the condition or the Building, or
by or from the bursting, stoppage or leaking of or from any pipes or
drains, or from the malfunctioning of any utility, facility or
installation, after the Commencement Date of this Lease.
10.02 Except for the negligence or intentional acts or omissions of Landlord,
its agents, contractors or employees, Tenant, at its expense, will
defend, indemnify and save Landlord, its licensees, servants, agents,
employees and contractors harmless from any loss, damage, claim of
damage, liability or expense to or for any person or property at law or
in equity, whether based on contract, tort, negligence or otherwise,
arising directly or indirectly out of or in connection with the condition
of the Premises, the use or misuse thereof by Tenant or any other person,
the acts or omissions of Tenant, its licensees, servants, agents,
employees or contractors, the failure of Tenant to comply with the Rules
and Regulations or with any other provision of this Lease on the part of
Tenant to be performed, or any event on the Premises whatever the cause.
10.03 Except for the negligence or intentional acts or omissions of Landlord,
its agents, contractors or employees, all property kept, stored or
maintained by Tenant in and about the Premises will be kept, stored or
maintained at the sole risk of Tenant and Landlord will not be
responsible for any property entrusted to employees of Landlord.
10.04 Except for the negligence or intentional acts or omissions of Tenant, its
agents, contractors, guests, invitees or employees, Landlord, at its
expense, will defend, indemnify and save Tenant, its licensees, servants,
agents, employees, directors, officers and contractors harmless from any
loss, damage, claim of damage, liability or expense to or for any person
or property, at law or in equity, and whether based on contract, tort,
negligence of otherwise (collectively, "Claims"), arising out of or in
connection with the (i) condition of the Building or the Real Estate,
(ii) any repairs made by Landlord or on behalf of Landlord in the
Premises or the Building or on the Real Estate, or (iii) Landlord's
operation of the Building or the Real Estate (provided, however, in each
case that the Claims are attributable to Landlord's negligent or
intentional acts or omissions) or arising out of any default by Landlord
hereunder.
SECTION 11: INSURANCE
11.01 Tenant, during the entire Term, will keep in full force and effect
comprehensive general liability insurance with respect to the Premises,
with contractual liability endorsement, in which the limits of liability
are not less than the amounts set forth in Paragraph F of the Summary,
and with a company or companies having not less than an "A" rating by
A.M.
7
Best Company. Landlord will be named as an additional insured under all
such insurance policies (which shall contain cross-liability
endorsements) and a current certificate evidencing such coverage and any
renewals thereof will be furnished to Landlord once a year. If Tenant
fails to keep such insurance in force, Landlord, at Tenant's reasonable
expense, may secure such insurance and the premium will be paid by Tenant
within ten (10) days after receipt of an invoice therefor.
11.02 Tenant shall provide and keep in force throughout the Term commercial
general liability insurance with respect to Tenant's operation of the
Building and the Real Estate, for bodily injury or death and for damage
to property of others, with policy limits of not less than those required
to be maintained by Tenant hereunder. Tenant shall also during the Term
provide and keep in force so called "all risk" fire insurance (including
the standard extended coverage endorsement for perils and leakage from
fire protective devices) in respect of the Building and to the extent of
its full replacement value, as reasonably estimated by Tenant or required
by its mortgagee from time to time. Tenant may procure such other
insurance as it shall deem desirable or its mortgagee shall require.
Insurance effected by Tenant shall be subject to such deductibles and
exclusions as Tenant shall determine to be reasonable, but not to exceed
Two Hundred Fifty Thousand Dollars ($250,000.00). Tenant shall maintain
the foregoing insurance coverages with a company or companies having not
less than a "A" rating by A.M. Best Company. Landlord shall be named as
an additional insured on all of Tenant's commercial general liability
policies (which shall contain cross-liability endorsements) and a current
certificate evidencing such coverage and any renewals thereof shall be
furnished to Landlord at least once a year. Tenant's commercial liability
insurance shall contain contractual liability coverage. In the event
Tenant fails to provide a current certificate evidencing the coverage
required herein, Landlord shall be entitled, at Tenant's sole cost and
expense, to procure such insurance and to continue carrying such
insurance until such time as Tenant provides satisfactory evidence that
it has complied with the insurance requirements hereof.
SECTION 12: DAMAGE
12.01 INSURED LOSS shall herein mean damage or destruction which was caused by
an event required to be covered by the insurance described in Section 11.
12.02 In the event the Building is damaged or destroyed to the extent of less
than fifty percent (50%) of the replacement value thereof, Landlord, at
its sole cost and expense, unless it elects to terminate this Lease
pursuant to this Section 12, will proceed with reasonable speed to repair
the Premises or the Building, as the case may be (i) to a condition
substantially equal to the condition of the Premises or the Building
existing immediately prior to such damage or destruction, (ii) pursuant
to all applicable requirements of law and duly constituted governmental
authority, and (iii) in the case of the Premises, in accordance with
specifications, working plans and drawings prepared by Landlord, at its
sole cost and expense, and approved in advance by Tenant, which appeal
shall not be unreasonably withheld or delayed. The building insurance
proceeds under the policies maintained by Tenant shall be applied toward
the cost of all repairs and restoration Landlord is required to make
under this Section 12.02 and such repairs and restoration proceeds shall
be available to the Landlord to facilitate such repairs and restoration
of the Premises. Tenant shall reimburse Landlord for any amounts not
covered by the insurance proceeds.
In the event the Building is damaged or destroyed to the extent of more
than fifty percent (50%) of the replacement value thereof, Landlord will
have the right to elect to demolish, rebuild or reconstruct the Building
if it is damaged by fire or other casualty and, if Landlord so elects,
whether or not the Premises have been damaged, this Lease may be
terminated by Landlord upon written notice to the Tenant and the rent
will be adjusted to the date of the fire or other casualty. In the event
of the Building is damaged or destroyed to the extent of more than fifty
percent (50%) of the replacement value thereof, Tenant shall have the
right to terminate the Lease, by written notice, and the rent will be
adjusted to the date of the fire or other casualty.
If such damage makes the Premises untenantable and was not caused by any
act, neglect or default of Tenant, its servants, agents, employees,
visitors or licensees, there will be an
8
equitable abatement of rent for the period during which and to the extent
that the Premises are untenantable and until Landlord fully repairs and
restores the Premises and the Building to a condition substantially equal
to the condition thereof which existed immediately prior to that fire or
other casualty (or to the condition otherwise approved by Tenant). If
repair of the Premises is delayed by Tenant's failure to adjust its own
insurance claim, there will be no abatement of rent for the period of
such delay. Notwithstanding anything to the contrary contained herein, in
the event Landlord has not completed the repairs and restoration of the
Premises and/or the Building within eight (8) months after the date such
damage and such delay is not the result of Tenant's failure to provide
the necessary insurance proceeds to repair such damage or destruction,
then Tenant, at its option, may cancel and terminate this Lease upon ten
(10) days written notice to Landlord. Further, if the Building shall be
damaged or destroyed to the extent of more than thirty-five percent (35%)
of the replacement cost thereof within twenty-four (24) months of the
expiration of the Term of this Lease, as the same may have been extended,
either Landlord or Tenant shall have the right to terminate this Lease as
of the date of such damage or destruction by giving written notice to the
other party within thirty (30) days following such damage or destruction,
unless Tenant, within thirty (30) days following the receipt of such
notice from Landlord shall exercise an option to extend the Term of this
Lease pursuant to Section 2 hereof. If this Lease is terminated pursuant
to this Section 12, Landlord and Tenant shall each be released from its
respective liability and obligations hereunder accruing from and after
the date of such damage or destruction.
SECTION 13: ALTERATIONS
13.01 Tenant will not alter, add to or improve the Premises without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld or delayed so long as the proposed alteration,
addition or improvement does not involve modifications of any structural
elements of the Premises. All alterations, additions, improvements and
related work performed by Tenant (or pursuant to its authority) shall be
performed in accordance with all applicable laws, rules, regulations and
ordinances and between such hours and by such contractors and mechanics
as may be approved by Landlord. All alterations, additions, improvements
and replacements made or provided by either party on the Premises, except
movable furniture, trade fixtures and other personal property provided at
Tenant's expense, will be the property of Landlord and will remain on and
be surrendered with the Premises upon termination, without damage. Tenant
will keep the Premises free of liens of any sort in connection with work
done on the Premises by Tenant (or pursuant to its authority).
Notwithstanding anything to the contrary contained in this Section 13,
Tenant shall be permitted to make interior, non-structural alterations,
additions or improvements to the Premises, other than those pertaining to
the HVAC or plumbing systems, without obtaining Landlord's consent
therefor, provided the cost of any such alterations, additions or
improvements shall not exceed Fifty Thousand Dollars ($50,000.00) during
any Lease Year during the Term hereof.
SECTION 14: CARE OF PREMISES
14.01 Except as otherwise provided in this Lease, Tenant, during the Term of
this Lease, including any extension thereof, shall properly maintain and
make all necessary repairs and replacements to (i) the entire Building
and Premises, including the windows, doors, roof, outer walls and
structural portions thereof, (ii) the electrical, plumbing, heating,
ventilating and cooling and other mechanical systems whether located
inside or outside the Building, and whether serving the Premises or the
common areas of the Building and (iii) the common areas on or about the
Real Estate and/or Building, including all of the parking areas on or
about the Real Estate. Tenant shall be responsible for all repairs and
maintenance to the Real Estate and Building whether as a result of
ordinary wear and tear or resulting from fire unless provided otherwise,
casualty or acts of God.
Tenant agrees, during the Term hereof, to operate, manage and maintain in
good operating condition and repair, clean and free from rubbish, debris,
dirt, snow and ice, adequately drained in a safe sanitary condition, all
of the common area lighting facilities, landscaping, parking and other
common areas on or about the Real Estate.
9
14.02 It is intended by the parties hereto that Landlord shall have no
obligation, in any manner whatsoever, to repair and maintain the Premises
nor the building located thereon nor the equipment therein, whether
structural or non structural, all of which obligations are intended to be
that of Tenant under Section 14 hereof.
Except as otherwise provided in this Lease, Tenant, at its sole expense,
will keep the Premises, including, without limitation, all Tenant's
personal property, fixtures and equipment, at all times in good, sanitary
and safe condition and repair in accordance with the laws of the State of
Michigan and in accordance with all directions, rules and regulations of
the health officer, fire marshal, building inspector or other proper
officers of the governmental agencies having jurisdiction, and Tenant
will comply with all requirements of law, ordinance or otherwise
affecting the Premises. Tenant, at its expense, will repair (or replace
as needed) all damage to the Premises, the Building, the common areas of
the Building or its fixtures and equipment, caused by the act, neglect or
default of Tenant, its servants, agents, employees, visitors or
licensees. If Tenant fails to make such repairs and/or replacements, if
any, and provided Landlord gives Tenant ten (10) days prior written
notice of any such repairs and provided further that Landlord in the
performance of any such repairs does not unreasonably interfere with the
conduct of Tenant's business, Landlord may do so and the sole cost will
be paid by Tenant to Landlord within thirty (30) days after receipt of
Landlord's detailed invoice. Tenant will permit no waste or nuisance upon
or damage or injury to the Premises or utilities supplied thereto.
SECTION 15: USE OF PREMISES
15.01 The Premises will be used for the purpose described in Paragraph G of the
Summary and for no other or added purposes without the prior written
approval of Landlord. In no event may Tenant use or permit the use of any
part of the Premises, any laws, ordinances, rules or regulations of any
municipal, county, state or federal body, including, without limitation
the Americans with Disabilities Act. Tenant will not conduct its business
in any manner prohibited by any code or principles of that business and
in no event in any manner prohibited by law. Tenant shall not place a
load upon any floor of the Premises exceeding the floor load per square
foot which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to reasonably prescribe the weight and
position of all equipment, furniture, tile cabinets and other heavy
objects, which must be placed and maintained by Tenant at Tenant's
expense, in settings sufficient in Landlord's reasonable judgment to
absorb and prevent vibration, noise and annoyance.
SECTION 16: ACCESS TO PREMISES
16.01 Upon reasonable prior written notice to Tenant (except in the event of an
emergency, and then at any time), Tenant will permit Landlord and its
agents access to the Premises during all normal business hours for the
purpose of examining the Premises, maintaining existing pipes and
conduits in and through the Premises and making any repairs, alterations
or additions which Landlord may deem necessary for the safety,
preservation or improvement of the Premises or the Building. Landlord
will be allowed to take all material into the Premises that may be
reasonably required for such work and to perform such acts without the
same constituting an eviction of Tenant in whole or in part, provided
Landlord shall not unreasonably interfere with the conduct of Tenant's
business. The rent will not abate while the repairs, alterations,
improvements or additions are being made unless any such repairs (i)
extend over a period of more than three (3) consecutive business days;
and (ii) preclude Tenant from conducting its business in a commercially
reasonable manner within the Premises for a period of more than three (3)
consecutive business days, in which case fifty percent (50%) of the Base
Rent shall be abated in proportion to the percentage of the Premises that
cannot be used for Tenant's business in a commercially reasonable manner.
Said rent abatement shall be for that period beyond three (3) consecutive
business days during which Tenant is precluded from using the applicable
portion of the Premises for Tenant's business in a commercially
reasonable manner as a result of any repairs, alterations, improvements
or additions being made by Landlord. Notwithstanding anything contained
herein to the contrary, in no event shall rent abate if repairs or
replacements to the Premises or any other portion of the Building are
necessitated by Tenant's negligence or breach of this Lease.
10
SECTION 17: EMINENT DOMAIN
17.01 If any part of the Premises or more than twenty-five percent (25%) of the
parking areas are taken by any public authority under power of eminent
domain or by private sale or conveyance in lieu of eminent domain, this
Lease will terminate as of the date of such taking or sale and Tenant may
receive a pro rata refund of any rent paid in advance. Landlord reserves
the right, however, to elect to demolish, rebuild or reconstruct the
Building if any portion of the Building is so taken, or to cease
operation of the Building if such material part of the parking for the
Building is taken that Landlord determines, in its discretion, that it
would be uneconomic to continue operation of the Building; and, if
Landlord so elects, whether or not the Premises are involved in the
taking, this Lease may be terminated by Landlord on written notice to
Tenant and the rent will be adjusted to the date Tenant's possession of
the Premises is terminated. All damages awarded for the taking will
belong to and be the property of Landlord regardless of the basis on
which they are awarded, but Landlord will not be entitled to any portion
of the award made to Tenant for removal and installation of fixtures or
moving expenses and loss of business.
SECTION 18: ASSIGNMENT OR SUBLETTING
18.01 Tenant agrees not to assign or in any manner transfer this Lease or any
interest in this Lease without the previous written consent of Landlord,
and not to sublet the Premises or any part of the Premises or allow
anyone to use or to come in with, through or under it without like
consent. In no event may Tenant assign or otherwise transfer this Lease
or any interest in this Lease at any time while in default thereunder.
One such consent will not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by any other person. Tenant
may, however, assign this Lease to a corporation with which it may merge
or consolidate, to any parent or subsidiary of Tenant or subsidiary of
Tenant's parent, or to a purchaser of substantially all of Tenant's
assets if the assignee executes an agreement required by Landlord
assuming Tenant's obligations. The acceptance of rent from an assignee,
subtenant or occupant will not constitute a release of Tenant from the
further performance of the obligations of Tenant contained in this Lease.
SECTION 19: SURRENDER
19.01 At the expiration (or earlier termination) of the Term, Tenant shall
surrender the Premises broom clean and in as good condition and repair as
they were at the time Tenant took possession, reasonable wear and tear
and casualty excepted, and promptly upon surrender will deliver all keys
and Building security cards for the Premises to Landlord at the place
then fixed for payment of rent. Any reasonable costs and expenses
incurred by Landlord in connection with repairing any damage to the
Premises occasioned by the removal of Tenant's personal property
therefrom, together with the reasonable costs, if any, of removing from
the Premises any personal property of Tenant left therein, shall be
invoiced to Tenant and shall be payable within thirty (30) days after
receipt of Landlord's detailed invoice.
SECTION 20:
REMOVAL OF TENANT'S PROPERTY UPON EXPIRATION OR TERMINATION
20.01 If Tenant fails to remove all its personal property (or property of
others in its possession) from the Premises within three (3) days
following the expiration or termination of this Lease (for any cause) or
as reasonably extended, Landlord, at its option, may remove the property
in any reasonable manner that it chooses and may store the property
without liability to Tenant. Tenant agrees to pay Landlord, in accordance
with Section 19 hereof, any and all reasonable expenses incurred in such
removal, including court costs, attorneys' fees and storage charges on
the property for any length of time it is in Landlord's possession. Under
no circumstances will Landlord be obligated to retain any property left
on the Premises or in Landlord's possession for more than three (3) days
following the expiration or earlier termination of this Lease or as
reasonably extended and Landlord may dispose of the property in any
manner it deems necessary, including public or private sale or by
destruction, discard or abandonment, and the proceeds of any such sale
will be applied against any sums due Landlord under this Lease.
11
SECTION 21
21.01 [INTENTIONALLY OMITTED]
SECTION 22: HOLDING OVER
22.01 If Tenant remains in possession of the Premises after the expiration of
this Lease without executing a new lease, it will be deemed to be
occupying the Premises as a tenant from month to month, subject to all
the provisions of this Lease to the extent that they can be applicable to
a month-to-month tenancy, except that the Base Rent for each month will
be one hundred fifty percent (150%) of the regular monthly installments
of Base Rent last in effect as shown in Paragraph C of the Summary.
Nothing herein shall be construed or deemed to constitute a consent by
Landlord to Tenant holding over, nor a waiver by Landlord of its rights
to remove or evict Tenant by reason of the expiration of the Term.
SECTION 23: SUBORDINATION; ESTOPPEL CERTIFICATES
23.01 Tenant agrees that Landlord may choose to make this Lease subordinate or
paramount to any construction loans, mortgages, trust deeds and ground or
underlying leases now or hereafter affecting the Premises and to any and
all advances to be made thereunder, and to the interest and charges
thereon, and all renewals, replacements and extensions thereon, provided
the mortgagee, lessor or trustee named in any such mortgages, trust deeds
or leases agrees to recognize this Lease and Tenant's rights hereunder in
the event of foreclosure if Tenant is not in default. Tenant will execute
promptly any instrument or certificate that Landlord may request to
confirm such subordination, provided any such instrument or certificate
is in a form and substance reasonably acceptable to Tenant. Within thirty
(30) days following the date hereof, Landlord shall furnish Tenant with a
subordination and non-disturbance agreement, executed by the mortgagee
under any mortgage covering the Building and Real Estate, which shall be
in a form and substance reasonably acceptable to Tenant.
23.02 Either Tenant or Landlord, within fifteen (15) days after reasonable
request by the other party, will execute and deliver to Tenant or
Landlord an estoppel certificate identifying the Commencement Date and
expiration date of the Term and stating that this Lease is unmodified and
in full force and effect or is in full force and effect as modified,
stating the modifications and stating that Tenant or Landlord does not
claim that the other party is in default in any way or listing any such
claimed defaults. The certificate also will confirm the amount of monthly
Base Rent as of the date of the certificate, the date to which the rent
has been paid in advance and the amount of any security deposit or
prepaid rent.
SECTION 24: QUIET ENJOYMENT
24.01 Landlord agrees that Tenant may peaceably and quietly enjoy the Premises,
subject to the terms, provisions, covenants, agreements, stipulations,
rules and conditions of this Lease, without disturbance or hindrance by
any person holding under or through Landlord, if Tenant pays the Base
Rent and observes and performs all the provisions of this Lease and the
Rules and Regulations.
SECTION 25: NO REPRESENTATIONS BY LANDLORD
25.01 Except as expressly stated in this Lease, Landlord makes no
representations with respect to the Premises or the Building and, by
taking possession of the Premises, Tenant will be deemed to have accepted
the Premises and the Building in the condition then existing.
25.02 Tenant shall not keep any toxic or hazardous substances (as such terms
are defined under applicable law) in the Premises, or the Building or on
the Real Estate, provided the terms "toxic" and "hazardous substances"
shall not be deemed to include items customarily kept in buildings of the
type and kind in which Tenant operates, unless the maintenance of such
items in the Premises or the Building or on the Real Estate would be
prohibited by applicable law. If, however, any such items kept in the
Premises, Building, or on the Real Estate result in the contamination
thereof, Tenant shall take all reasonable actions, at its sole cost and
expense, to return the Premises, the Building, or the Real Estate to the
12
condition existing prior to the introduction of those items therein.
Tenant agrees to indemnify, defend and hold Landlord and its agents and
employees harmless from any claims, judgments, damages, penalties, fines,
liabilities (including sums paid in settlement of claims) or reasonable
costs, including attorneys fees, which arise prior to, during or after
the Term of this Lease, including any extension thereof, from or in
connection with the presence or suspected presence of toxic or hazardous
substances in the soil, ground water or soil vapor on or under the Real
Estate, the Building, or the Premises as a result of the acts of Tenant,
its agents, contractors or employees, unless such toxic or hazardous
substances are present as a result of the negligence, or willful act or
omission of Landlord, its agents, contractors, guests, invitees or
employees. Tenant's obligation to indemnify Landlord under this Section
25.02 shall survive the expiration or earlier termination of this Lease.
SECTION 26: LANDLORD'S RIGHT TO CURE DEFAULTS
26.01 Subject to, and except as otherwise provided under the other terms and
conditions of this Lease, if Tenant defaults in the performance of any
provision of this Lease, Landlord will have the right to cure such
default for the account of Tenant upon ten (10) days prior written notice
to Tenant, and Tenant, within thirty (30) days after being billed, will
reimburse Landlord for any reasonable expenditure made by Landlord in
order to cure such default, together with interest as provided in Section
6 if the reimbursement is not made when due.
SECTION 27: WAIVER OF SUBROGATION
27.01 Landlord and Tenant hereby waive any and all right of recovery against
each other for any loss or damage caused by fire or any other casualty
covered by the fire and extended property insurance coverage, vandalism
and malicious mischief insurance policies carried (pursuant to the terms
hereof) by Landlord with respect to the Building and carried by Tenant
with respect to Tenant's fixtures and the contents of the Premises.
SECTION 28: BILLS AND NOTICES
28.01 Bills, statements, notices or communications which Landlord may desire or
be required to give to Tenant will be deemed sufficiently given or
rendered only if in writing, sent by registered, certified or first class
mail (with respect to bills only), postage prepaid, addressed to Tenant
at the address set forth on the cover page of this Lease or at such other
address as Tenant designates by written notice, and the time of the
rendition of a bill or statement and of the giving of a notice or
communication will be deemed to be the time when received by Tenant. Any
notice by Tenant to Landlord must be served by registered or certified,
postage prepaid, addressed to Landlord at the address set forth on the
cover page of this Lease or at such other address as Landlord designates
by written notice. Rejection or refusal to accept or the inability to
deliver because of a changed address of which no notice was given shall
be deemed to be receipt of the notice, demand, request or other
instrument.
SECTION 29
29.01 [INTENTIONALLY OMITTED]
SECTION 30
30.01 [INTENTIONALLY OMITTED]
SECTION 31
31.01 [INTENTIONALLY OMITTED]
SECTION 32
32.01 [INTENTIONALLY OMITTED]
13
SECTION 33
33.01 [INTENTIONALLY OMITTED]
SECTION 34
34.01 [INTENTIONALLY OMITTED]
SECTION 35: GENERAL
35.01 Many references in this Lease to persons, entities and items have been
generalized for ease of reading. Therefore, references to a single
person, entity or item will also mean more than one person, entity or
thing whenever such usage is appropriate (for example, "TENANT" may
include, if appropriate, a group of persons acting as a single entity or
as tenants-in-common). Similarly, pronouns of any gender should be
considered interchangeable with pronouns of other genders.
35.02 All agreements and obligations of Tenant under this Lease are joint and
several in nature. Any waiver or waivers by either party of any of the
provisions of this Lease will not constitute a waiver of any later breach
of that provision, and any consent or approval given by either party with
respect to any act, neglect or default by the other party will not waive
or make unnecessary waiving party's consent or approval with respect to
any later similar act, neglect or default by the other party.
35.03 Topical headings appearing in this Lease are for convenience only. They
do not define, limit or construe the contents of any paragraphs or
clauses.
35.04 This Lease can be modified or amended only by a written agreement signed
by Landlord and Tenant.
35.05 All provisions of this Lease are and will be binding on the heirs,
executors, administrators, personal representatives, successors and
permitted assigns of Landlord and Tenant.
35.06 The laws of the State of Michigan will control in the construction and
enforcement of this Lease.
35.07 Whenever the approval or consent of either party is required hereunder,
such approval or consent shall not be unreasonably delayed, withheld or
conditioned.
35.08 In the event that either party shall be delayed or hindered in or
prevented from the performance of any act (other than the payment of Base
Rent or Operating Costs under the terms of this Lease) by reason of
riots, strikes, labor troubles, inability to produce materials or other
reason not the fault of the party delayed in performing the work or
performing the acts required under the terms of this Lease, including
delays caused by the acts of the other party, performance of such acts
shall be excused for the period of delay and the period for the
performance of any such acts shall be extended for a period equivalent to
the period of such delay.
SECTION 36: ENTIRE AGREEMENT
36.01 This Lease and the Exhibit attached hereto and forming a part hereof set
forth all of the covenants, agreements, stipulations, promises,
conditions and understandings between Landlord and Tenant concerning the
Premises and the Building and there are no covenants, agreements,
stipulations, promises, conditions or understandings, either oral or
written, between them other than herein set forth.
14
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
WITNESSES: LANDLORD:
HARPER PROPERTIES OF CLINTON TWP.
LIMITED PARTNERSHIP, a Michigan limited
partnership
[ILLEGIBLE] By: /s/ ALICIA J. WINGET
- ---------------------------------- -----------------------------------
Name: Alicia J. Winget
-----------------------------------
[ILLEGIBLE] Its: General Partner
- ---------------------------------- -----------------------------------
TENANT:
VENTURE INDUSTRIES CORPORATION, a
Michigan corporation
By:
- ---------------------------------- -----------------------------------
Name:
-----------------------------------
Its:
- ---------------------------------- -----------------------------------
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
WITNESSES: LANDLORD:
HARPER PROPERTIES OF CLINTON TWP.
LIMITED PARTNERSHIP, a Michigan
partnership
By:
- ---------------------------------- -----------------------------------
Name:
-----------------------------------
Its:
- ---------------------------------- -----------------------------------
TENANT:
VENTURE INDUSTRIES CORPORATION, a
Michigan corporation
[ILLEGIBLE] By: /s/ JAMES E. BUTLER
- ---------------------------------- -----------------------------------
Name: James E. Butler
-----------------------------------
[ILLEGIBLE] Its: EVP
- ---------------------------------- -----------------------------------
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
Land in the Township of Clinton, County of Macomb, State of Michigan, described
as:
Lots 4, 5, 6, 7, 8, 9 and 10, except portions thereof taken for the I-94
Expressway, and vacated Louise (Rinas) Street in Supervisor's Plat No. 1,
part of the Northeast 1/4 of Section 35, Town 2 North, Range 13 East,
Clinton Township, Macomb County, Michigan, according to the plat thereof
as recorded in Liber 14 of Plats, page 23, Macomb County Records, and
being more particularly described as: Beginning at the Southeasterly
corner of said Lot 4; thence North 59 degrees 14 minutes 37 seconds West
510.73 to the Southwesterly corner of said Lot 4; thence North 07 degrees
37 minutes 37 seconds West along the Westerly line of said Supervisor's
Plat No. 1, distance of 256.24 feet to a point on the I-94 Expressway
right-of-way; thence along said right-of-way the following courses and
distances North 39 degrees 39 minutes 48 seconds East 196.04 feet and
North 49 degrees 03 minutes 43 seconds East 239.01 feet and North 49
degrees 03 minutes 43 seconds East 239.01 feet and North 61 degrees 04
minutes 48 seconds East, 211.49 feet and North 72 degrees 24 minutes 48
seconds East, 211.49 feet and North 88 degrees 44 minutes 57 seconds
East, 149.02 feet and South 69 degrees 54 minutes 46 seconds East, 149.02
feet and South 59 degrees 14 minutes 37 seconds East, 17.25 feet to a
point on the right-of-way of Harper Avenue (as widened 1/2 equals 60 feet
wide); thence along said right-of-way South 30 degrees 45 minutes 23
seconds West, 252.66 feet; thence North 88 degrees 27 minutes 53 seconds
East, 31.94 feet to a point on the platted right-of-way of said Harper
Avenue (1/2 equals 33 feet wide); thence along said right-of-way South 30
degrees 45 minutes 23 seconds West 833.0 feet to the point of beginning.
Commonly known as: 34501 Harper Avenue, Clinton Township, Michigan
Tax Parcel Identification Numbers: 11-35-252-008, 11-35-252-009, and
11-35-252-010.
16
EXECUTION COPY
EXHIBIT I
MASONIC LEASE
EX-11
LEASE AGREEMENT
THIS LEASE is made between the following parties:
LANDLORD: VENTURE REAL ESTATE ACQUISITION COMPANY, a Michigan corporation,
whose address is 33662 James J. Pompo Drive, Fraser,
Michigan 48026.
TENANT: VENTURE INDUSTRIES CORPORATION, a Michigan corporation, whose
address is 33662 James J. Pompo Drive, Fraser, Michigan 48026.
SUMMARY OF LEASE TERMS.
The following summary (the "Summary") is intended to summarize the pertinent
terms of this Lease and is not intended to be exhaustive. In the event anything
set forth in this Summary conflicts with the other specific provisions of this
Lease, the specific provisions of the Lease shall be deemed to control in the
absence of expressed contrary intent.
A. THE PREMISES.
Approximately 178,000 square feet of space located in the City of
Fraser, County of Macomb, State of Michigan commonly known as 17085
Masonic, Fraser, Michigan as more particularly described in EXHIBIT
"A".
B. THE TERM.
TARGET COMMENCEMENT DATE: Subject to the provisions of Section 2 of
this lease.
EXPIRATION DATE: The lease shall expire ten (10) years from the
Commencement Date, subject to Tenant's option to extend the Term (as
hereinafter defined) and Tenant's option to terminate this Lease, in
each case, pursuant to Section 2.01 of this Lease.
C. RENT. BASE RENT: Tenant shall pay Base Rent in equal monthly
installments as set in Section 3.01.
D. TENANT'S PROPORTIONATE SHARE........................100%
E. [INTENTIONALLY OMITTED]
F. LIMITS OF INSURANCE.
1. If dual limits: Bodily Injury: $1,000,000 per person
$2,000,000 per
occurrence
Property Damage: $2,000,000 per
occurrence
2. If single limit: $2,000,000
G. THE USE.
1. General Industrial use and incidental and ordinary related
uses.
STANDARD COVENANTS, TERMS AND CONDITIONS
SECTION 1: PREMISES AND TENANT IMPROVEMENTS
1.01 In consideration of the rent to be paid and the covenants and
agreements to be performed hereunder, Landlord hereby leases to Tenant
and Tenant hereby leases from Landlord the premises described in
paragraph A of the Summary (the "PREMISES"), located in the building,
commonly known as 17085 Masonic, Fraser, Michigan 48026 (the
"BUILDING") and the nonexclusive use of the other common areas in or
appurtenant to the Building and located on the Real Estate (as
hereinafter defined).
SECTION 2: TERM; OPTION(S) TO EXTEND AND TERMINATE
2.01 TERM. The "TERM" shall commence (the "COMMENCEMENT DATE") upon release
of this Lease to the Tenant pursuant to and in accordance with the
terms of the Escrow Agreement among Larry J. Winget and Venture
Holdings Company LLC and First American Title Insurance Company, dated
September 22, 2003. The Lease shall not be enforceable until approval
is received by the United States Bankruptcy Court.
The Term will expire on the Expiration Date shown in Paragraph B of the
Summary, subject to Tenant's option(s) to extend the Term pursuant to
this Section 2.01.
OPTION TO EXTEND. Provided the Tenant is not then in default under this
Lease, the Tenant shall have the option to extend the Term of this
Lease for two (2) additional periods of five (5) years each (each, an
"OPTION PERIOD"). Tenant shall exercise each said option by giving the
Landlord written notice of such election not less than one hundred and
eighty (180) days prior to the expiration of the then existing term.
All terms and conditions of this Lease shall remain the same, except
that the Base Rent for each five (5) year Option Period shall be
determined either by (i) the agreement of Landlord and Tenant as to
fair market value rent or (ii) determination of an independent
appraiser mutually selected by Landlord and Tenant, as to fair market
value rent based on similar facilities, locations, business operations,
and taking into account the leasehold improvements actually paid for by
the Landlord thereunder to the extent not reimbursed by the Tenant.
However, notwithstanding anything to the contrary contained herein or
in the Lease, the amount of Base Rent due under the Lease shall never
decrease below the Base Rent charged during the proceeding year of the
Lease or the Base Rent charged during the first year of the Lease,
whichever is greater.
In making any calculations hereunder, no effect shall be given to
existing rent concessions, abatements, or tenant improvement allowances
(if any).
SECTION 3: BASE RENT
3.01 Tenant shall pay to Landlord Base Rent in monthly installments during
the Term. The initial Base Rent shall be the fair market value rent as
determined pursuant to that certain Contribution Agreement between
Larry J. Winget and The Larry J. Winget Living Trust, the Other
Transferors named therein, and Venture Holding Company, LLC dated
September 22,2003, (the "Contribution Agreement") provided, however,
that if the Term commences pursuant to Section 2.01 prior to a
determination of fair market rent value rent under the Contribution
Agreement then the rent shall be determined either by (i) the agreement
of the Landlord and the Tenant as to the fair market value rent or (ii)
the determination of an independent appraiser mutually selected by the
Landlord and the Tenant, as to the fair market value rent based on
similar facilities, locations, business operations, and taking into
account the leasehold improvements actually paid for by the Landlord
thereunder to the extent not reimbursed by the Tenant. During each
Option Period, Base Rent shall be determined in the manner described in
Section 2.01.
3.02 Each monthly installment of rent will be paid in advance in the manner
set forth in Section 5 hereof. The first installment shall be due and
payable on the Commencement
2
Date and each succeeding installment shall be due and payable on the
first day of each and every month thereafter (the "RENT DAY") during
the Term and any extension thereof at the office of the Landlord at the
address shown on the cover page of this Lease or at such other place as
Landlord may designate from time to time in writing. The Base Rent and
Operating Costs, subject to Section 4.01(ii), for a partial calendar
month, if any, at the beginning of the Term shall be prorated on a
daily basis (based on the actual number of days in the applicable
calendar month) and shall be payable on the Commencement Date.
SECTION 4: OPERATING COSTS
4.01 DEFINITIONS
(i) "REAL ESTATE TAXES" means real estate taxes and assessments,
general and special, assessed and levied upon the Building and
the Real Estate. The "BUILDING" means the Building of which
the Premises are a part and "REAL ESTATE" means the land on
which the Building is situated and, as and to the extent
designated by Landlord, the parking areas, walks, drives,
plazas, landscaped areas and other common areas located on the
Real Estate and serving the Building. For purposes of
calculating Real Estate Taxes hereunder, Landlord may take the
benefit of the provisions of any statute or ordinance
permitting any assessment to be paid over a period of time and
the installments of such assessment which would become due and
payable by virtue of such provisions during the Term of this
Lease or any extension hereof, together with any interest
thereon, will be included in the calculation of Real Estate
Taxes. In the event that the United States or the city,
county, state or other political subdivision of any
governmental authority having jurisdiction imposes a tax,
assessment or surcharge of any kind or nature upon, against,
measured by or with respect to the rentals payable by the
tenants of the Building or on the income of Landlord derived
from the Building (expressly excluding any portion of
Landlord's Michigan Single Business Tax), or with respect to
Landlord's ownership of the Building and the Real Estate
either by way of substitution for all or any part of the taxes
and assessments levied or assessed against the Building and
the Real Estate, or, in addition thereto (but not including
federal, state or local income taxes unless levied by way of
substitution), such tax, assessment or surcharge will be
deemed a Real Estate Tax for purposes of this Section. In no
event shall the Real Estate Taxes include any penalty or
interest charge which may be due by virtue of Landlord's late
or non-payment thereof. In addition, the term "Real Estate
Taxes" shall not include any taxes measured by the net income
of Landlord, franchise, succession, inheritance or real estate
transfer taxes.
(ii) "OPERATING COSTS" Tenant shall pay as Operating Costs
hereinafter referred to as the "Operating Costs") all
operating costs and impositions for the Building as set forth
in this Section. Tenant shall make all payments of Operating
Costs directly to the parties entitled to receive such
payments. Impositions to be paid by Tenant shall include,
collectively, all real estate taxes (subject to Section 1.02)
on the Premises (including without limitation those levied by
special taxing districts), or the use, lease, ownership or
operation thereof, personal property tax on the property
covered by this Lease that is classified by governmental
authorities as personal property, assessments (including all
assessments for public improvements or benefits) water, sewer,
gas heat, light, power, cable television, and any other
utility assessment or other rents and charges, excises,
levies, fees and all other governmental charges of any kind or
nature whatsoever, general or special, foreseen or unforeseen,
ordinary or extraordinary, with respect to the Premises or any
part thereof, including all interest and penalties thereon,
which at any time prior to, during or with respect to the
Initial Term may be assessed or imposed on or with respect to
or be a lien upon Landlord or the Premises or any part thereof
or any rent therefrom or any estate, title or interest therein
and any and all community associations, and/or association
charges, fees, dues and assessments, and interest and
penalties thereon. Operating Costs to be paid by Tenant shall
include any and all expenses, costs and disbursements of every
kind and nature whatsoever, which are required to operate,
repair, maintain, replace and rebuild the Premises and every
component thereof in comparable condition as
3
it was at the commencement of this Lease and in compliance
with Applicable Laws and in accordance with the requirements
of any insurance carrier providing insurance under this Lease.
Operating Costs shall exclude only the following: (i) any
interest on borrowed money or debt amortization arising by,
through, or under Landlord (except interest incurred after an
in connection with a Default by Tenant); (ii) depreciation on
the Building; and (iii) costs of Landlord's overhead.
SECTION 5: MANNER OF PAYMENT
5.01 The Base Rent, Operating Costs and all other charges payable by Tenant
hereunder will be paid promptly when due, without relief from valuation
laws, notice or demand therefor, and without deduction, abatement,
counterclaim or setoff for any reason whatsoever, except as otherwise
provided herein. All amounts payable by Tenant to Landlord under the
provisions of this Lease will be paid by Tenant in lawful money of the
United States at the place herein provided for notices to Landlord or
at such other place or to such other person as Landlord may from time
to time designate by notice to Tenant.
5.02 In the event the amount of the Real Estate Taxes are not contested by
Landlord, then Tenant, upon written notice to Landlord, shall have the
right to contest the amount of the Taxes at Tenant's sole cost and
expense, by the appropriate proceedings diligently contested in good
faith. Notwithstanding such proceedings, Tenant shall promptly pay and
discharge such Taxes and any penalties or interest assessed thereon,
unless such proceedings and the posting of a bond or other security
shall (a) operate to prevent or stay the collection of the Taxes and
secure any accruing penalties or interest and (b) operate to cure
Landlord's default in the payment of Taxes required under any mortgage
upon the Demised Premises. Landlord agrees to join Tenant in such
proceedings, if necessary, provided Tenant pays all costs and expenses
incurred by Landlord, including actual attorneys' fees.
SECTION 6: DELINQUENT PAYMENTS
6.01 If Tenant neglects or fails to pay within five (5) days after the date
it receives a written notice from Landlord that the same is due and
payable, any Base Rent, Operating Costs or any other amount required to
be paid to Landlord under this Lease, Tenant shall pay to Landlord, in
addition to such unpaid amounts, a late payment charge and interest
upon such unpaid amounts from five (5) days after the due date thereof
to the date of payment at the Applicable Rate as defined in
subparagraph (ii) of this paragraph 6.01.
(i) LATE PAYMENT CHARGES. Tenant acknowledges that late payment by
Tenant to Landlord of Base Rent or any other amount required
to be paid to Landlord under this Lease will cause Landlord to
incur costs not contemplated by this Lease, the exact amount
of which is extremely difficult and impracticable to
ascertain. Such administration costs include, without
limitation, processing and accounting charges and late charges
that may be imposed upon Landlord by virtue of its debt
obligations. Accordingly, if Tenant fails to make any of such
payments within five (5) days after Tenant's receipt of
written notice from Landlord that such payment is due, Tenant
shall pay a late charge (in addition to the interest payable
under subparagraph (ii) below) equal to Two Hundred Fifty
Dollars ($250.00). The parties acknowledge that such late
charge represents a fair and reasonable estimate of the
administrative costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord
shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount nor prevent Landlord from
exercising any of the other rights and remedies granted
hereunder.
(ii) INTEREST CHARGE; APPLICABLE RATE. If Tenant neglects or fails
to pay, within five (5) days after the date the same is due
and payable, any Base Rent or any other amount required to be
paid to Landlord under this Lease, Tenant will pay an interest
charge on all such unpaid amounts (other than the late payment
charge) at an applicable rate per annum equal to two
4
percent (2%) over the prime interest rate charged by Comerica
Bank of Detroit ("COMERICA PRIME") to its best commercial
customers on the date when the sum becomes due, but not in
excess of the maximum interest rate permitted by law. This
obligation to pay late charges and interest will exist in
addition to and not in lieu of the other default provisions in
this Lease.
(iii) MAXIMUM CHARGE. Notwithstanding the foregoing provisions of
this Section, in no event shall the amounts charged under this
Section exceed the maximum amount which may be lawfully
charged by Landlord under applicable law. In the event the
amounts provided for under this Section shall exceed such
lawful charge, then the amounts payable under this Section
shall be reduced to the maximum amount of such lawful charge.
SECTION 7:
7.01 [INTENTIONALLY OMITTED]
SECTION 8: BREACH; INSOLVENCY; REENTRY
8.01 If any rental payable by Tenant to Landlord remains unpaid for more
than five (5) days after Tenant's receipt of written notice of
nonpayment or if Tenant violates or defaults in the performance of any
of its non-monetary obligations in this Lease (including the Rules and
Regulations) and the non-monetary violation or default continues for a
period of thirty (30) days after Tenant's receipt of written notice,
then Landlord may (but will not be required to) declare this Lease
forfeited and the Term ended, or reenter the Premises, or may exercise
all other remedies available under Michigan law. If any non-monetary
default is one that will reasonably require more than thirty (30) days
to correct, Tenant shall not be deemed to be in default hereof if,
after receiving written notice of nonperformance from Landlord, Tenant
has promptly commenced the curing of such default and is diligently
pursuing the same to completion. Except for the negligence or
intentional act or omission of Landlord, its agents, contractors or
employees, Landlord will not be liable for damages to person or
property by reason of any legitimate reentry or forfeiture. In the
event of reentry by Landlord without declaration of forfeiture, the
liability of Tenant for the rent provided herein will not be
relinquished or extinguished for the balance of the Term. Tenant will
pay, in addition to the rental and other sums agreed to be paid
hereunder, reasonable attorneys' fees, costs and expenses in any suit
or action instituted by or involving Landlord to enforce the provisions
of or the collection of the rentals due Landlord under this Lease,
including, subject to applicable law, any proceeding under the Federal
Bankruptcy Code.
8.02 Subject to the provisions set forth in this Section 8.02, if Tenant is
adjudged bankrupt or insolvent, files or consents to the filing of a
petition in bankruptcy under Federal or State law, applies for or
consents to the appointment of a receiver for all or substantially all
of its assets, makes a general assignment for the benefit of its
creditors, fails generally to pay its debts as they become due, or does
anything which under the applicable provisions of the Federal
Bankruptcy Code would permit a petition to be filed by or against
Tenant, then Tenant shall be in default under this Lease and, to the
extent from time to time permitted by applicable law, including but not
limited to the Federal Bankruptcy Code, Landlord shall be entitled to
exercise all remedies set forth in the preceding paragraph in this
Section 8. Tenant acknowledges that its selection to be a tenant of the
Building was premised in material part on Landlord's determination of
Tenant's creditworthiness and ability to perform the economic terms of
this Lease and Landlord's further determination that Tenant and the
character of its occupancy and use of the Premises would be compatible
with the nature of the Building and the other tenants thereof. In the
event of an assignment, Landlord must be assured that the financial
condition of the assignee is sound and that its use of the Premises
will be compatible with the Building and its other tenants. The
provisions of this Section 8.02 shall be enforced to the full extent
permitted under the applicable provisions of the Federal Bankruptcy
Code.
8.03 In the event of declaration of forfeiture at or after the time of
reentry, Landlord may release the Premises or any portion(s) of the
Premises for a term or terms and at a rent which may be less than or
exceed the balance of the Term and the rent reserved under this
5
Lease. In such event Tenant will pay to Landlord, as liquidated damages
for Tenant's default, any deficiency between the total rent reserved
and the net amount, if any, of the rents collected on account of the
lease or leases of the Premises which otherwise would have constituted
the balance of the Term of this Lease. In computing such liquidated
damages, there will be added to the deficiency any reasonable expenses
which Landlord may incur in connection with re-leasing, such as legal
expenses, attorneys' fees, brokerage fees and expenses, advertising and
for keeping the Premises in good order or for preparing the Premises
for re-leasing. Any such liquidated damages will be paid in monthly
installments by Tenant on the Rent Day and any suit brought to collect
the deficiency for any month will not prejudice Landlord's right to
collect the deficiency for any subsequent month by a similar
proceeding.
8.04 Notwithstanding anything to the contrary contained in this Lease,
Landlord and Tenant shall each have the duty and obligation to
mitigate, in every reasonable manner, any and all damages that may or
shall be caused or suffered by virtue of defaults under, or violations
of any of the terms and provisions of, this Lease committed by the
other party.
SECTION 9: FACILITIES; UTILITIES; SERVICES
9.01 [INTENTIONALLY OMITTED]
SECTION 10: INJURIES TO PERSONS AND PROPERTY
10.01 Except for the negligence or intentional acts or omissions of Landlord,
its agents, contractors or employees, Landlord will not be liable for
injury to person or property arising out of the acts, omissions or
neglect of any tenant, its servants, agents, employees, invitees,
visitors or licensees, or other occupants of or visitors to the
Building or the Premises, or of any person in or about the Building or
the Premises, or of owners or occupants of or persons on or about
surrounding properties; nor for injury to persons or property arising
out of patent or latent defects, structural or otherwise, in the
Building or any appurtenance thereof, or arising out of the condition
or the Building, or by or from the bursting, stoppage or leaking of or
from any pipes or drains, or from the malfunctioning of any utility,
facility or installation, after the Commencement Date of this Lease.
10.02 Except for the negligence or intentional acts or omissions of Landlord,
its agents, contractors or employees, Tenant, at its expense, will
defend, indemnify and save Landlord, its licensees, servants, agents,
employees and contractors harmless from any loss, damage, claim of
damage, liability or expense to or for any person or property at law or
in equity, whether based on contract, tort, negligence or otherwise,
arising directly or indirectly out of or in connection with the
condition of the Premises, the use or misuse thereof by Tenant or any
other person, the acts or omissions of Tenant, its licensees, servants,
agents, employees or contractors, the failure of Tenant to comply with
the Rules and Regulations or with any other provision of this Lease on
the part of Tenant to be performed, or any event on the Premises
whatever the cause.
10.03 Except for the negligence or intentional acts or omissions of Landlord,
its agents, contractors or employees, all property kept, stored or
maintained by Tenant in and about the Premises will be kept, stored or
maintained at the sole risk of Tenant and Landlord will not be
responsible for any property entrusted to employees of Landlord.
10.04 Except for the negligence or intentional acts or omissions of Tenant,
its agents, contractors, guests, invitees or employees, Landlord, at
its expense, will defend, indemnify and save Tenant, its licensees,
servants, agents, employees, directors, officers and contractors
harmless from any loss, damage, claim of damage, liability or expense
to or for any person or property, at law or in equity, and whether
based on contract, tort, negligence of otherwise (collectively,
"Claims"), arising out of or in connection with the (i) condition of
the Building or the Real Estate, (ii) any repairs made by Landlord or
on behalf of Landlord in the Premises or the Building or on the Real
Estate, or (iii) Landlord's operation of the Building or the Real
Estate (provided, however, in each case that the Claims are
attributable to Landlord's negligent or intentional acts or omissions)
or arising out of any default by Landlord hereunder.
6
SECTION 11: INSURANCE
11.01 Tenant, during the entire Term, will keep in full force and effect
comprehensive general liability insurance with respect to the Premises,
with contractual liability endorsement, in which the limits of
liability are not less than the amounts set forth in Paragraph F of the
Summary, and with a company or companies having not less than an "A"
rating by A.M. Best Company. Landlord will be named as an additional
insured under all such insurance policies (which shall contain
cross-liability endorsements) and a current certificate evidencing such
coverage and any renewals thereof will be furnished to Landlord once a
year. If Tenant fails to keep such insurance in force, Landlord, at
Tenant's reasonable expense, may secure such insurance and the premium
will be paid by Tenant within ten (10) days after receipt of an invoice
therefor.
11.02 Tenant shall provide and keep in force throughout the Term commercial
general liability insurance with respect to Tenant's operation of the
Building and the Real Estate, for bodily injury or death and for damage
to property of others, with policy limits of not less than those
required to be maintained by Tenant hereunder. Tenant shall also during
the Term provide and keep in force so called "all risk" fire insurance
(including the standard extended coverage endorsement for perils and
leakage from fire protective devices) in respect of the Building and to
the extent of its full replacement value, as reasonably estimated by
Tenant or required by its mortgagee from time to time. Tenant may
procure such other insurance as it shall deem desirable or its
mortgagee shall require. Insurance effected by Tenant shall be subject
to such deductibles and exclusions as Tenant shall determine to be
reasonable, but not to exceed Two Hundred Fifty Thousand Dollars
($250,000.00). Tenant shall maintain the foregoing insurance coverages
with a company or companies having not less than a "A" rating by A.M.
Best Company. Landlord shall be named as an additional insured on all
of Tenant's commercial general liability policies (which shall contain
cross-liability endorsements) and a current certificate evidencing such
coverage and any renewals thereof shall be furnished to Landlord at
least once a year. Tenant's commercial liability insurance shall
contain contractual liability coverage. In the event Tenant fails to
provide a current certificate evidencing the coverage required herein,
Landlord shall be entitled, at Tenant's sole cost and expense, to
procure such insurance and to continue carrying such insurance until
such time as Tenant provides satisfactory evidence that it has complied
with the insurance requirements hereof.
SECTION 12: DAMAGE
12.01 INSURED LOSS shall herein mean damage or destruction which was caused
by an event required to be covered by the insurance described in
Section 11.
12.02 In the event the Building is damaged or destroyed to the extent of less
than fifty percent (50%) of the replacement value thereof, Landlord, at
its sole cost and expense, unless it elects to terminate this Lease
pursuant to this Section 12, will proceed with reasonable speed to
repair the Premises or the Building, as the case may be (i) to a
condition substantially equal to the condition of the Premises or the
Building existing immediately prior to such damage or destruction, (ii)
pursuant to all applicable requirements of law and duly constituted
governmental authority, and (iii) in the case of the Premises, in
accordance with specifications, working plans and drawings prepared by
Landlord, at its sole cost and expense, and approved in advance by
Tenant, which appeal shall not be unreasonably withheld or delayed. The
building insurance proceeds under the policies maintained by Tenant
shall be applied toward the cost of all repairs and restoration
Landlord is required to make under this Section 12.02 and such repairs
and restoration proceeds shall be available to the Landlord to
facilitate such repairs and restoration of the Premises Tenant shall
reimburse Landlord for any amounts not covered by the insurance
proceeds.
In the event the Building is damaged or destroyed to the extent of more
than fifty percent (50%) of the replacement value thereof, Landlord
will have the right to elect to demolish, rebuild or reconstruct the
Building if it is damaged by fire or other casualty and, if Landlord so
elects, whether or not the Premises have been damaged, this Lease may
be terminated by Landlord upon written notice to the Tenant and the
rent will be adjusted to the date of the fire or other casualty. In the
event of the Building is damaged or destroyed
7
to the extent of more than fifty percent (50%) of the replacement value
thereof, Tenant shall have the right to terminate the Lease, by written
notice, and the rent will be adjusted to the date of the fire or other
casualty.
If such damage makes the Premises untenantable and was not caused by
any act, neglect or default of Tenant, its servants, agents, employees,
visitors or licensees, there will be an equitable abatement of rent for
the period during which and to the extent that the Premises are
untenantable and until Landlord fully repairs and restores the Premises
and the Building to a condition substantially equal to the condition
thereof which existed immediately prior to that fire or other casualty
(or to the condition otherwise approved by Tenant). If repair of the
Premises is delayed by Tenant's failure to adjust its own insurance
claim, there will be no abatement of rent for the period of such delay.
Notwithstanding anything to the contrary contained herein, in the event
Landlord has not completed the repairs and restoration of the Premises
and/or the Building within eight (8) months after the date such damage
and such delay is not the result of Tenant's failure to provide the
necessary insurance proceeds to repair such damage or destruction, then
Tenant, at its option, may cancel and terminate this Lease upon ten
(10) days written notice to Landlord. Further, if the Building shall be
damaged or destroyed to the extent of more than thirty-five percent
(35%) of the replacement cost thereof within twenty-four (24) months of
the expiration of the Term of this Lease, as the same may have been
extended, either Landlord or Tenant shall have the right to terminate
this Lease as of the date of such damage or destruction by giving
written notice to the other party within thirty (30) days following
such damage or destruction, unless Tenant, within thirty (30) days
following the receipt of such notice from Landlord shall exercise an
option to extend the Term of this Lease pursuant to Section 2 hereof.
If this Lease is terminated pursuant to this Section 12, Landlord and
Tenant shall each be released from its respective liability and
obligations hereunder accruing from and after the date of such damage
or destruction.
SECTION 13: ALTERATIONS
13.01 Tenant will not alter, add to or improve the Premises without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld or delayed so long as the proposed alteration,
addition or improvement does not involve modifications of any
structural elements of the Premises. All alterations, additions,
improvements and related work performed by Tenant (or pursuant to its
authority) shall be performed in accordance with all applicable laws,
rules, regulations and ordinances and between such hours and by such
contractors and mechanics as may be approved by Landlord. All
alterations, additions, improvements and replacements made or provided
by either party on the Premises, except movable furniture, trade
fixtures and other personal property provided at Tenant's expense, will
be the property of Landlord and will remain on and be surrendered with
the Premises upon termination, without damage. Tenant will keep the
Premises free of liens of any sort in connection with work done on the
Premises by Tenant (or pursuant to its authority). Notwithstanding
anything to the contrary contained in this Section 13, Tenant shall be
permitted to make interior, non-structural alterations, additions or
improvements to the Premises, other than those pertaining to the HVAC
or plumbing systems, without obtaining Landlord's consent therefor,
provided the cost of any such alterations, additions or improvements
shall not exceed Fifty Thousand Dollars ($50,000.00) during any Lease
Year during the Term hereof.
SECTION 14: CARE OF PREMISES
14.01 Except as otherwise provided in this Lease, Tenant, during the Term of
this Lease, including any extension thereof, shall properly maintain
and make all necessary repairs and replacements to (i) the entire
Building and Premises, including the windows, doors, roof, outer walls
and structural portions thereof, (ii) the electrical, plumbing,
heating, ventilating and cooling and other mechanical systems whether
located inside or outside the Building, and whether serving the
Premises or the common areas of the Building and (iii) the common areas
on or about the Real Estate and/or Building, including all of the
parking areas on or about the Real Estate. Tenant shall be responsible
for all repairs and maintenance to the Real Estate and Building whether
as a result of ordinary wear and tear or resulting from fire unless
provided otherwise, casualty or acts of God.
8
Tenant agrees, during the Term hereof, to operate, manage and maintain
in good operating condition and repair, clean and free from rubbish,
debris, dirt, snow and ice, adequately drained in a safe sanitary
condition, all of the common area lighting facilities, landscaping,
parking and other common areas on or about the Real Estate.
14.02 It is intended by the parties hereto that Landlord shall have no
obligation, in any manner whatsoever, to repair and maintain the
Premises nor the building located thereon nor the equipment therein,
whether structural or non structural, all of which obligations are
intended to be that of Tenant under Section 14 hereof.
Except as otherwise provided in this Lease, Tenant, at its sole
expense, will keep the Premises, including, without limitation, all
Tenant's personal property, fixtures and equipment, at all times in
good, sanitary and safe condition and repair in accordance with the
laws of the State of Michigan and in accordance with all directions,
rules and regulations of the health officer, fire marshal, building
inspector or other proper officers of the governmental agencies having
jurisdiction, and Tenant will comply with all requirements of law,
ordinance or otherwise affecting the Premises. Tenant, at its expense,
will repair (or replace as needed) all damage to the Premises, the
Building, the common areas of the Building or its fixtures and
equipment, caused by the act, neglect or default of Tenant, its
servants, agents, employees, visitors or licensees. If Tenant fails to
make such repairs and/or replacements, if any, and provided Landlord
gives Tenant ten (10) days prior written notice of any such repairs and
provided further that Landlord in the performance of any such repairs
does not unreasonably interfere with the conduct of Tenant's business,
Landlord may do so and the sole cost will be paid by Tenant to Landlord
within thirty (30) days after receipt of Landlord's detailed invoice.
Tenant will permit no waste or nuisance upon or damage or injury to the
Premises or utilities supplied thereto.
SECTION 15: USE OF PREMISES
15.01 The Premises will be used for the purpose described in Paragraph G of
the Summary and for no other or added purposes without the prior
written approval of Landlord. In no event may Tenant use or permit the
use of any part of the Premises, any laws, ordinances, rules or
regulations of any municipal, county, state or federal body, including,
without limitation the Americans with Disabilities Act. Tenant will not
conduct its business in any manner prohibited by any code or principles
of that business and in no event in any manner prohibited by law.
Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot which such floor was designed to carry
and which is allowed by law. Landlord reserves the right to reasonably
prescribe the weight and position of all equipment, furniture, file
cabinets and other heavy objects, which must be placed and maintained
by Tenant at Tenant's expense, in settings sufficient in Landlord's
reasonable judgment to absorb and prevent vibration, noise and
annoyance.
SECTION 16: ACCESS TO PREMISES
16.01 Upon reasonable prior written notice to Tenant (except in the event of
an emergency, and then at any time), Tenant will permit Landlord and
its agents access to the Premises during all normal business hours for
the purpose of examining the Premises, maintaining existing pipes and
conduits in and through the Premises and making any repairs,
alterations or additions which Landlord may deem necessary for the
safety, preservation or improvement of the Premises or the Building.
Landlord will be allowed to take all material into the Premises that
may be reasonably required for such work and to perform such acts
without the same constituting an eviction of Tenant in whole or in
part, provided Landlord shall not unreasonably interfere with the
conduct of Tenant's business. The rent will not abate while the
repairs, alterations, improvements or additions are being made unless
any such repairs (i) extend over a period of more than three (3)
consecutive business days; and (ii) preclude Tenant from conducting its
business in a commercially reasonable manner within the Premises for a
period of more than three (3) consecutive business days, in which case
fifty percent (50%) of the Base Rent shall be abated in proportion to
the percentage of the Premises that cannot be used for Tenant's
business in a commercially reasonable manner. Said rent abatement shall
be for that period beyond three (3) consecutive business days during
which Tenant is precluded from using the
9
applicable portion of the Premises for Tenant's business in a
commercially reasonable manner as a result of any repairs, alterations,
improvements or additions being made by Landlord. Notwithstanding
anything contained herein to the contrary, in no event shall rent abate
if repairs or replacements to the Premises or any other portion of the
Building are necessitated by Tenant's negligence or breach of this
Lease.
SECTION 17: EMINENT DOMAIN
17.01 If any part of the Premises or more than twenty-five percent (25%) of
the parking areas are taken by any public authority under power of
eminent domain or by private sale or conveyance in lieu of eminent
domain, this Lease will terminate as of the date of such taking or sale
and Tenant may receive a pro rata refund of any rent paid in advance.
Landlord reserves the right, however, to elect to demolish, rebuild or
reconstruct the Building if any portion of the Building is so taken, or
to cease operation of the Building if such material part of the parking
for the Building is taken that Landlord determines, in its discretion,
that it would be uneconomic to continue operation of the Building; and,
if Landlord so elects, whether or not the Premises are involved in the
taking, this Lease may be terminated by Landlord on written notice to
Tenant and the rent will be adjusted to the date Tenant's possession of
the Premises is terminated. All damages awarded for the taking will
belong to and be the property of Landlord regardless of the basis on
which they are awarded, but Landlord will not be entitled to any
portion of the award made to Tenant for removal and installation of
fixtures or moving expenses and loss of business.
SECTION 18: ASSIGNMENT OR SUBLETTING
18.01 Tenant agrees not to assign or in any manner transfer this Lease or any
interest in this Lease without the previous written consent of
Landlord, and not to sublet the Premises or any part of the Premises or
allow anyone to use or to come in with, through or under it without
like consent. In no event may Tenant assign or otherwise transfer this
Lease or any interest in this Lease at any time while in default
thereunder. One such consent will not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by any other
person. Tenant may, however, assign this Lease to a corporation with
which it may merge or consolidate, to any parent or subsidiary of
Tenant or subsidiary of Tenant's parent, or to a purchaser of
substantially all of Tenant's assets if the assignee executes an
agreement required by Landlord assuming Tenant's obligations. The
acceptance of rent from an assignee, subtenant or occupant will not
constitute a release of Tenant from the further performance of the
obligations of Tenant contained in this Lease.
SECTION 19: SURRENDER
19.01 At the expiration (or earlier termination) of the Term, Tenant shall
surrender the Premises broom clean and in as good condition and repair
as they were at the time Tenant took possession, reasonable wear and
tear and casualty excepted, and promptly upon surrender will deliver
all keys and Building security cards for the Premises to Landlord at
the place then fixed for payment of rent. Any reasonable costs and
expenses incurred by Landlord in connection with repairing any damage
to the Premises occasioned by the removal of Tenant's personal property
therefrom, together with the reasonable costs, if any, of removing from
the Premises any personal property of Tenant left therein, shall be
invoiced to Tenant and shall be payable within thirty (30) days after
receipt of Landlord's detailed invoice.
SECTION 20:
REMOVAL OF TENANT'S PROPERTY UPON EXPIRATION OR TERMINATION
20.01 If Tenant fails to remove all its personal property (or property of
others in its possession) from the Premises within three (3) days
following the expiration or termination of this Lease (for any cause)
or as reasonably extended, Landlord, at its option, may remove the
property in any reasonable manner that it chooses and may store the
property without liability to Tenant. Tenant agrees to pay Landlord, in
accordance with Section 19 hereof, any and all reasonable expenses
incurred in such removal, including court costs, attorneys' fees and
storage charges on the property for any length of time it is in
Landlord's possession. Under no circumstances will Landlord be
obligated to retain any
10
property left on the Premises or in Landlord's possession for more than
three (3) days following the expiration or earlier termination of this
Lease or as reasonably extended and Landlord may dispose of the
property in any manner it deems necessary, including public or private
sale or by destruction, discard or abandonment, and the proceeds of any
such sale will be applied against any sums due Landlord under this
Lease.
SECTION 21
21.01 [INTENTIONALLY OMITTED]
SECTION 22: HOLDING OVER
22.01 If Tenant remains in possession of the Premises after the expiration of
this Lease without executing a new lease, it will be deemed to be
occupying the Premises as a tenant from month to month, subject to all
the provisions of this Lease to the extent that they can be applicable
to a month-to-month tenancy, except that the Base Rent for each month
will be one hundred fifty percent (150%) of the regular monthly
installments of Base Rent last in effect as shown in Paragraph C of the
Summary. Nothing herein shall be construed or deemed to constitute a
consent by Landlord to Tenant holding over, nor a waiver by Landlord of
its rights to remove or evict Tenant by reason of the expiration of the
Term.
SECTION 23: SUBORDINATION; ESTOPPEL CERTIFICATES
23.01 Tenant agrees that Landlord may choose to make this Lease subordinate
or paramount to any construction loans, mortgages, trust deeds and
ground or underlying leases now or hereafter affecting the Premises and
to any and all advances to be made thereunder, and to the interest and
charges thereon, and all renewals, replacements and extensions thereon,
provided the mortgagee, lessor or trustee named in any such mortgages,
trust deeds or leases agrees to recognize this Lease and Tenant's
rights hereunder in the event of foreclosure if Tenant is not in
default. Tenant will execute promptly any instrument or certificate
that Landlord may request to confirm such subordination, provided any
such instrument or certificate is in a form and substance reasonably
acceptable to Tenant. Within thirty (30) days following the date
hereof, Landlord shall furnish Tenant with a subordination and
non-disturbance agreement, executed by the mortgagee under any mortgage
covering the Building and Real Estate, which shall be in a form and
substance reasonably acceptable to Tenant.
23.02 Either Tenant or Landlord, within fifteen (15) days after reasonable
request by the other party, will execute and deliver to Tenant or
Landlord an estoppel certificate identifying the Commencement Date and
expiration date of the Term and stating that this Lease is unmodified
and in full force and effect or is in full force and effect as
modified, stating the modifications and stating that Tenant or Landlord
does not claim that the other party is in default in any way or listing
any such claimed defaults. The certificate also will confirm the amount
of monthly Base Rent as of the date of the certificate, the date to
which the rent has been paid in advance and the amount of any security
deposit or prepaid rent.
SECTION 24: QUIET ENJOYMENT
24.01 Landlord agrees that Tenant may peaceably and quietly enjoy the
Premises, subject to the terms, provisions, covenants, agreements,
stipulations, rules and conditions of this Lease, without disturbance
or hindrance by any person holding under or through Landlord, if Tenant
pays the Base Rent and observes and performs all the provisions of this
Lease and the Rules and Regulations.
SECTION 25: NO REPRESENTATIONS BY LANDLORD
25.01 Except as expressly stated in this Lease, Landlord makes no
representations with respect to the Premises or the Building and, by
taking possession of the Premises, Tenant will be deemed to have
accepted the Premises and the Building in the condition then existing.
25.02 Tenant shall not keep any toxic or hazardous substances (as such terms
are defined under applicable law) in the Premises, or the Building or
on the Real Estate, provided the terms
11
"toxic" and "hazardous substances" shall not be deemed to include items
customarily kept in buildings of the type and kind in which Tenant
operates, unless the maintenance of such items in the Premises or the
Building or on the Real Estate would be prohibited by applicable law.
If, however, any such items kept in the Premises, Building, or on the
Real Estate result in the contamination thereof, Tenant shall take all
reasonable actions, at its sole cost and expense, to return the
Premises, the Building, or the Real Estate to the condition existing
prior to the introduction of those items therein. Tenant agrees to
indemnify, defend and hold Landlord and its agents and employees
harmless from any claims, judgments, damages, penalties, fines,
liabilities (including sums paid in settlement of claims) or reasonable
costs, including attorneys fees, which arise prior to, during or after
the Term of this Lease, including any extension thereof, from or in
connection with the presence or suspected presence of toxic or
hazardous substances in the soil, ground water or soil vapor on or
under the Real Estate, the Building, or the Premises as a result of the
acts of Tenant, its agents, contractors or employees, unless such toxic
or hazardous substances are present as a result of the negligence, or
willful act or omission of Landlord, its agents, contractors, guests,
invitees or employees. Tenant's obligation to indemnify Landlord under
this Section 25.02 shall survive the expiration or earlier termination
of this Lease.
SECTION 26: LANDLORD'S RIGHT TO CURE DEFAULTS
26.01 Subject to, and except as otherwise provided under the other terms and
conditions of this Lease, if Tenant defaults in the performance of any
provision of this Lease, Landlord will have the right to cure such
default for the account of Tenant upon ten (10) days prior written
notice to Tenant, and Tenant, within thirty (30) days after being
billed, will reimburse Landlord, as Operating Costs, for any reasonable
expenditure made by Landlord in order to cure such default, together
with interest as provided in Section 6 if the reimbursement is not made
when due.
SECTION 27: WAIVER OF SUBROGATION
27.01 Landlord and Tenant hereby waive any and all right of recovery against
each other for any loss or damage caused by fire or any other casualty
covered by the fire and extended property insurance coverage, vandalism
and malicious mischief insurance policies carried (pursuant to the
terms hereof) by Landlord with respect to the Building and carried by
Tenant with respect to Tenant's fixtures and the contents of the
Premises.
SECTION 28: BILLS AND NOTICES
28.01 Bills, statements, notices or communications which Landlord may desire
or be required to give to Tenant will be deemed sufficiently given or
rendered only if in writing, sent by registered, certified or first
class mail (with respect to bills only), postage prepaid, addressed to
Tenant at the address set forth on the cover page of this Lease or at
such other address as Tenant designates by written notice, and the time
of the rendition of a bill or statement and of the giving of a notice
or communication will be deemed to be the time when received by Tenant.
Any notice by Tenant to Landlord must be served by registered or
certified, postage prepaid, addressed to Landlord at the address set
forth on the cover page of this Lease or at such other address as
Landlord designates by written notice. Rejection or refusal to accept
or the inability to deliver because of a changed address of which no
notice was given shall be deemed to be receipt of the notice, demand,
request or other instrument.
SECTION 29
29.01 [INTENTIONALLY OMITTED]
SECTION 30
30.01 [INTENTIONALLY OMITTED]
SECTION 31
31.01 [INTENTIONALLY OMITTED]
12
SECTION 32
32.01 [INTENTIONALLY OMITTED]
SECTION 33
33.01 [INTENTIONALLY OMITTED]
SECTION 34
34.01 [INTENTIONALLY OMITTED]
SECTION 35: GENERAL
35.01 Many references in this Lease to persons, entities and items have been
generalized for ease of reading. Therefore, references to a single
person, entity or item will also mean more than one person, entity or
thing whenever such usage is appropriate (for example, "TENANT" may
include, if appropriate, a group of persons acting as a single entity
or as tenants-in-common). Similarly, pronouns of any gender should be
considered interchangeable with pronouns of other genders.
35.02 All agreements and obligations of Tenant under this Lease are joint and
several in nature. Any waiver or waivers by either party of any of the
provisions of this Lease will not constitute a waiver of any later
breach of that provision, and any consent or approval given by either
party with respect to any act, neglect or default by the other party
will not waive or make unnecessary waiving party's consent or approval
with respect to any later similar act, neglect or default by the other
party.
35.03 Topical headings appearing in this Lease are for convenience only. They
do not define, limit or construe the contents of any paragraphs or
clauses.
35.04 This Lease can be modified or amended only by a written agreement
signed by Landlord and Tenant.
35.05 All provisions of this Lease are and will be binding on the heirs,
executors, administrators, personal representatives, successors and
permitted assigns of Landlord and Tenant.
35.06 The laws of the State of Michigan will control in the construction and
enforcement of this Lease.
35.07 Whenever the approval or consent of either party is required hereunder,
such approval or consent shall not be unreasonably delayed, withheld or
conditioned.
35.08 In the event that either party shall be delayed or hindered in or
prevented from the performance of any act (other than the payment of
Base Rent or Operating Costs under the terms of this Lease) by reason
of riots, strikes, labor troubles, inability to produce materials or
other reason not the fault of the party delayed in performing the work
or performing the acts required under the terms of this Lease,
including delays caused by the acts of the other party, performance of
such acts shall be excused for the period of delay and the period for
the performance of any such acts shall be extended for a period
equivalent to the period of such delay.
SECTION 36: ENTIRE AGREEMENT
36.01 This Lease and the Exhibit attached hereto and forming a part hereof
set forth all of the covenants, agreements, stipulations, promises,
conditions and understandings between Landlord and Tenant concerning
the Premises and the Building and there are no covenants, agreements,
stipulations, promises, conditions or understandings, either oral or
written, between them other than herein set forth.
13
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
WITNESSES: LANDLORD:
VENTURE REAL ESTATE ACQUISITION COMPANY, a
Michigan corporation
/s/ ALLEN (ILLEGIBLE) By: /s/ THOMAS C. KRUEGER
- ------------------------- --------------------------------------
Name: Thomas C. Krueger
--------------------------------------
/s/ LINDA SAGIN Its: Secretary Treasurer
- ------------------------- --------------------------------------
TENANT:
VENTURE INDUSTRIES CORPORATION, a Michigan
corporation
/s/ (ILLEGIBLE) By: /s/ JAMES E. BUTLER
- ------------------------- --------------------------------------
Name: James E. Butler
--------------------------------------
/s/ KATHLEEN (ILLEGIBLE) Its: EVP
- ------------------------- --------------------------------------
14
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
Land in the City of Fraser, County of Macomb, State of Michigan, described as:
ASSESSOR'S PLAT NO. 5 OF LOTS 1; 2; 3; AND PARTS OF 4; 5; AND 6 OF THE
SUBDIVISION OF NW l/4 OF SEC 5 AND NE l/4 AND NE l/4 OF NW l/4 OF SEC
6. T1N R13E. PART OF LOT 96 DESC AS FOLL: BEG AT SE COR LOT 96; TH S
88(degrees)20'24"W 575 FT ALG S LINE OF LOT 96; TH NO1(degrees)37'36"W
310.6 FT; TH N88(degrees)18'37"E 759.96 FT ALG N LINE LOT 96; TH
S29(degrees)09'24"W 362.0 FT ALG NE'LY R/W LINE G.T.W.R.R. TO PT BEG.
AND THE FOLLOWING PARCEL DESCRIBED AS FOLLOWS: BEG AT THE SE'LY COR OF
SAID LOT 91; TH ALG THE S LINE OF LOT 91, N88(degrees)18'37"W 759.96
FT; TH N01(degrees)37'36"W 672.79 FT; TH S88(degrees)18'37"E 1167.46
FT; TH ALONG THE W'LY LINE OF THE G.T.W.R.R. AND THE E'LY LINE OF SAID
LOT 91; S29(degrees)09'24"W 801.62 FT TO THE PT OF BEG. EXC THE N 30 FT
FOR ROAD PURP. SUBJECT TO ALL EASEMENTS OF RECORD. L14 P. 29 CITY OF
FRASER.
Commonly known as: 17085 Masonic, Fraser, Michigan
Tax Parcel Identification Numbers: .
-----------------------------------------
15
EXECUTION COPY
EXHIBIT J
EQUIPMENT USAGE AGREEMENT
EX-12
EXECUTION VERSION
EQUIPMENT USAGE AGREEMENT
WHEREAS, VENTURE EQUIPMENT ACQUISITION COMPANY ("Acquisition") and
VENTURE INDUSTRIES CORPORATION (collectively, the "Parties") desire to enter
into an Equipment Usage Agreement (the "Agreement") concerning the machinery and
equipment set forth in Schedule A attached hereto and made a part hereof,
presently located at 17085 Masonic, Fraser, Michigan, for a usage fee as set
forth on Schedule A;
AND WHEREAS, Acquisition has agreed to the following terms:
NOW THEREFORE, THIS EQUIPMENT USAGE AGREEMENT is hereby made and
entered into as of September 22, 2003, among VENTURE EQUIPMENT ACQUISITION
COMPANY (hereinafter with its successors and assigns, referred to as "Owner"),
and VENTURE INDUSTRIES CORPORATION (hereinafter referred to as "User"), who
hereby amend, as of the Effective Date (as defined hereinafter), all other
agreements, if any, by and between the Parties concerning the rental or usage of
the machinery and equipment listed on Schedule A (the "Equipment") as follows:
1. USAGE FEE PAYABLE BY USER.
(A) User, in consideration and in respect of the right granted
by Owner to use the Equipment, shall pay to Owner for any one month a sum
determined by an independent appraiser mutually selected by the Parties, as
prorated for each piece of Equipment (the "Usage Fee"). The Usage Fee shall be
determined and set forth on Schedule A by such independent appraiser within
forty-five (45) days after the execution of this Agreement, and shall be
retroactive to the Effective Date. On the date that the Usage Fee is determined,
all fees for the period from the Effective Date to the date of determination of
the Usage Fee shall be immediately due and owing. The Usage Fee set forth on
Schedule A shall be amended, from time to time, for any additions or deletions
of Equipment, with the rates for any new Equipment being calculated on the same
basis that the rates for the initial Equipment were calculated. The
determination of the Usage Fee shall take into account additions, alterations or
improvements actually paid for by the Owner to the extent not reimbursed by the
User. In addition, on the fifth anniversary of the Effective Date of this
Agreement, the Usage Fee shall be prospectively adjusted to reflect the rate of
inflation (as measured by the Revised Consumer Price Index - All Items Figured
for All Urban Consumers, published by the United States Department of Labor,
Bureau of Labor Statistics, or, if such index is not published, a comparable
index selected by the Parties) from the Effective Date to such anniversary date.
(B) The Usage Fee shall be payable monthly at Owner's place of
business or such other place as Owner shall direct in writing.
(C) The due date of the first payment of the Usage Fee shall
be the date in the next calendar month which numerically corresponds to the
Effective Date (or if there is no such
1
EXECUTION VERSION
date in the next calendar month, the last date of such month), such period being
herein considered a "month," with subsequent payments being due at one month
intervals.
(D) Nothing herein to the contrary withstanding, User shall
not be liable for any payments to Owner accrued after this Agreement has been
terminated.
2. USAGE RIGHT.
(A) In consideration of the payment of Usage Fees, Owner
hereby (i) agrees to make available for pick-up by User or use on Owner's
premises on an as-is, where-is basis, and (ii) grants to User the right, subject
to Section 2(B) and Section 4, to use the Equipment during the period from the
Effective Date to the date of termination of this Agreement.
(B) Owner shall be permitted to use the Equipment when not in
use by User, subject to the following conditions. At any time that Owner desires
that itself or a third party use such Equipment (or any portion thereof) which
is on User's premises, (i) Owner shall give User not less than ten (10) days
prior notice of the dates of intended use, (ii) the scheduling of such use shall
not unreasonably interfere with the requirements of User's business, (iii) Owner
shall arrange on terms reasonably satisfactory to User for Owner or any third
party user to fully indemnify and hold User harmless from any damage, liability
or other cost which is the result of any negligence or intentional harm caused
by them or their invitees, employees, agents or sub-contractors to the extent to
which such damage, liability or other cost is not recoverable from User's
insurance carrier, including any deductible, and (iv) during any period that
Owner or such third party is using such Equipment, Owner or such third party
user shall reimburse User for any electrical charges or other variable costs of
User which User incurs as a result of the access permitted above.
(C) Notwithstanding anything contained herein to the contrary,
under no circumstances or condition shall any act or omission, including the
affixing of such Equipment to the premises, result in Owner losing any right of
ownership to the Equipment. Owner shall have the right, and User shall cooperate
in aiding Owner, to enter into a security agreement with User and/or file any
financing statement required by the Uniform Commercial Code in order to protect
Owner's rights in this regard.
3. TERM. This Agreement shall be effective upon release of this
Agreement pursuant to and in accordance with the terms of the Escrow Agreement,
dated September 16, 2003, by and among Larry J. Winget, Venture Holdings
Company, LLC and First American Title Insurance Company (the "Effective Date")
and shall expire on the fifth anniversary of the Effective Date, unless
otherwise terminated pursuant to Section 11. This Agreement shall be renewable
at the request of the User for successive five-year terms with a mutually agreed
upon adjustment to the Usage Fees set forth on Schedule A.
4. CONTINUOUS OWNER ACCESS. Owner shall have reasonable access to the
Equipment at User's premises subject to the convenience and requirements of
User's business
2
EXECUTION VERSION
and upon not less than two (2) days prior written notice in order to (i) make
repairs or improvements and (ii) perform testing.
5. CARE AND REPAIR OF PROPERTY. User shall keep the Equipment in good
repair, condition, and working order, and shall furnish any and all parts and
labor required for that purpose.
6. LOSS. User shall utilize the Equipment (a) in a careful and proper
manner that reasonably follows the common methods of usage of such Equipment,
(b) in a manner fit for the usage which the Equipment itself is customarily
used, and (c) in compliance with all applicable laws, ordinances and
regulations. User shall be liable to Owner for any loss or damage to the
Equipment which results from User's negligence or misuse of the Equipment.
Otherwise, Owner, subject to User's obligation to insure the Equipment in
accordance with Section 9, shall bear the entire risk of loss of and damage to
the Equipment. User shall be liable for any loss, damage or liability to third
parties, including User's invitees, employees, agents and sub-contractors as a
result of the use of such Equipment by User, its employees, agents,
sub-contractors (other than Owner and its agents) and invitees.
7. REMOVAL UPON TERMINATION. Whether or not the Equipment has attached
to the premises or otherwise become a fixture, upon (a) termination of this
Agreement, (b) termination of User's right to use any particular piece of
Equipment, or (c) the need for Owner to repair the Equipment, Owner shall be
permitted to remove such Equipment and shall have full right of access to the
premises in order to enable Owner to remove such Equipment from User's premises
during normal business hours or such other hours as User shall reasonably
specify; provided, that Owner shall not unduly interfere with the right of User
to conduct its business.
8. ALTERATIONS AND IMPROVEMENTS TO THE EQUIPMENT. User may, at its sole
cost and expense, modernize, add to and/or improve the Equipment from time to
time; provided, that either (i) such modernization, addition and/or improvement
does not materially reduce the value of the Equipment or (ii) permission of
Owner is first obtained. User shall, in its sold discretion, be entitled to
remove, from time to time, any such addition, alteration or improvement;
provided, that such addition, alteration or improvement (i) was not initially
made to replace a part or parts of the Equipment or (ii) does not affect the
functionality of the Equipment. User shall be responsible for the repair of any
damages resulting from such removal.
9. INSURANCE. User shall maintain, and provide Owner with a copy
thereof, a liability policy which shall name Owner as an additional insured
party, and shall provide (A) comprehensive insurance against risk of loss and
damage to the Equipment and (B) comprehensive general liability insurance,
including blanket contractual coverage against claims for, or arising out of,
bodily injury, death, or property damage from the Equipment. The initial limits
of coverage shall be not less than FIVE MILLION DOLLARS ($5,000,000.00) with
respect to injury or death of a single person and not less than TEN MILLION
DOLLARS
3
EXECUTION VERSION
($10,000,000.00) with respect to any one occurrence; and not less than FIVE
MILLION DOLLARS ($5,000,000.00) with respect to any one occurrence of property
damage. The initial limits of coverage shall be subject to mutually agreed upon
adjustments within forty-five (45) days after the Audit Committee of Venture
Holdings Company LLC makes a determination as to whether such limits of coverage
should be increased or decreased.
10. ASSIGNMENT. The rights of Owner and User hereunder shall not be
assigned, pledged, transferred or otherwise disposed of without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
11. TERMINATION; EVENTS OF DEFAULT.
(A) User may terminate this Agreement for any reason upon 30
days written notice to Owner.
(B) Owner may terminate this Agreement, and pursue any remedy
available under law or equity, upon occurrence of any of the following: (1) User
fails to pay any Usage Fee when due and such failure shall continue for ten (10)
days; (2) User shall fail to observe or perform any other provision hereof and
such failure shall continue for forty-five (45) days after notice to User of
such failure (provided that in the case of any such default which cannot be
cured by the payment of money and cannot with diligence be cured within such
forty-five (45) day period, if User shall commence promptly to cure the same and
thereafter prosecute the curing thereof with diligence, the time within which
such default may be cured shall be extended for such period as is necessary to
complete the curing thereof with diligence); (3) User ceases to do business as a
going concern, makes an assignment for the benefit of creditors, admits in
writing its inability to pay its debts as they become due, or files a voluntary
petition in bankruptcy; or (4) within sixty (60) days after the commencement of
any proceedings seeking reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, if such proceeding shall not have been dismissed, or if within sixty
(60) days after the appointment of any trustee, receiver or liquidator of User
or of all or any substantial part of its assets and properties, if such
appointment shall not have been vacated.
12. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Michigan, United States of America, without regard to its conflicts of
laws rules.
13. INTEGRATION. This writing constitutes the entire agreement between
the Parties as to the matters set forth herein and shall supersede all previous
or contemporaneous negotiations, commitments, and writings with respect to the
matters set forth herein.
14. MODIFICATION. The Parties may, by written instrument, amend, modify
or extend this Agreement. This Agreement may only be so amended, modified or
extended by a
4
EXECUTION VERSION
writing signed by authorized representatives of both Parties. The terms and
provisions of this Agreement shall prevail over any conflicting, additional, or
other terms appearing in any notice, request, instruction, invoice, or other
writing submitted by either Party under this Agreement at any time.
15. WAIVER. No waiver of any provision or breach of this Agreement
shall be construed as a continuing waiver, or shall constitute a waiver of such
provisions or breach, or of any other provision or breach.
16. HEADINGS INTERPRETATION. The section headings herein are included
solely for convenience and shall in no event affect or be used in connection
with the interpretation of this Agreement. Each separate provision of this
Agreement shall be treated as severable, to the end that if any one or more such
provisions shall be adjudged or declared illegal, invalid, or unenforceable,
this Agreement shall be interpreted and shall remain in full force and effect,
as though such provision or provisions had never been contained in this
Agreement.
17. NOTICES. Any notice, demand, delivery, invoice, or other writing
required or desired to be given or made pursuant to this Agreement shall be in
writing, and shall be deemed to have been given and received, and to be
effective for all purposes, the third business mail day after having been mailed
via the United States Postal Service in an envelope properly stamped and
addressed to the proper party at the address (or such other address as the
recipient shall have designated in writing) that follows:
If to Owner:
VENTURE EQUIPMENT ACQUISITION COMPANY
33662 James J. Pompo Drive
Fraser, Michigan 48026-0278
With copy to:
Allard & Fish P.C.
2600 Buhl Building
535 Griswold Street
Detroit, Michigan 48226
Attn.: Ralph McKee
Greenberg Traurig, LLP
77 W. Wacker Drive
Suite 2400
Chicago, IL 60601
Attn.: Nancy Mitchell
5
EXECUTION VERSION
If to User:
VENTURE INDUSTRIES CORPORATION
33662 James J. Pompo Dr., PO Box 278
Fraser, Michigan 48026
Attention: Chief Financial Officer
With copy to:
Dykema Gossett PLLC
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, Michigan 48108
Attn: Barbara A. Kaye
6
IN WITNESS WHEREOF, the Owner and User have executed this Usage
Agreement to be effective as of the Effective Date.
Owner:
VENTURE EQUIPMENT ACQUISITION COMPANY
By: /s/ THOMAS C. KRUEGER
---------------------------------
Its: Secretary Treasurer
--------------------------------
AND
User:
VENTURE INDUSTRIES CORPORATION
By:
---------------------------------
Its:
--------------------------------
IN WITNESS WHEREOF, the Owner and User have executed this Usage
Agreement to be effective as of the Effective Date.
Owner:
VENTURE EQUIPMENT ACQUISITION
COMPANY
By:
--------------------------
Its:
-------------------------
User:
VENTURE INDUSTRIES CORPORATION
By: /s/ JAMES E. BUTLER
--------------------------
Its: EVP
-------------------------
EXECUTION VERSION
SCHEDULE A
<Table>
<Caption>
MAKE SIZE SERIAL NO. USAGE FEE
- --------------------- --------------- --------------- ---------------
HPM 2500 IX
Molding Machine S/N 67-291
IMPCO/INGERSOL
RAND 2500 X
350
Molding Machine S/N C-3833-71
IMPCO/INGERSOL
RAND 2500 X
350
Molding Machine S/N 3816-71
</Table>
8
EXECUTION COPY
EXHIBIT K
ESCROW AGREEMENT
EX-13
EXECUTION VERSION
ESCROW AGREEMENT
This Escrow Agreement, dated as of September 22, 2003 (this
"Agreement"), is among Larry J. Winget ("Winget"), Venture Holdings Company LLC,
a Michigan limited liability company ("Venture Holdings"), and First American
Title Insurance Company (the "Escrow Agent").
RECITALS
A. Winget, the Larry J. Winget Living Trust and the other Transferors
named therein (collectively, the "Transferors") and Venture Holdings have
entered into a certain Contribution Agreement (the "Contribution Agreement"),
and have delivered a copy thereof to the Escrow Agent.
B. Winget has caused to be executed the following instruments
(collectively, the "Leases"):
(i) a lease of the real estate commonly known as 34501 Harper,
Mt. Clements, Michigan, between Harper Partners of Clinton Township Limited
Partnership, as lessor, and Venture Industries Corporation ("Industries"), as
lessee;
(ii) a lease of the real estate commonly known as 17085
Masonic, Fraser, Michigan, between Venture Real Estate Acquisition Company, as
lessor, and Industries, as lessee; and
(iii) an Equipment Usage Agreement between Venture Equipment
Acquisition Company and Industries.
C. Winget and Venture Holdings desire that the Escrow Agent hold the
Leases in escrow, and deliver them to Winget or Venture Holdings as provided in
this Agreement.
AGREEMENT
1. Establishment of Escrow. Winget deposits with the Escrow Agent the
Leases. The Escrow Agent acknowledges receipt of the Leases and agrees to hold
and release and deliver the Leases in accordance with the terms contained in
this Escrow Agreement.
2. Release and Delivery of Leases.
(a) Notice to the Escrow Agent. Upon receipt of a written notice
pursuant to subparagraph (a)(i), (ii) or (iii) below (each, a "Notice"), and
after the elapse of the Waiting Period (as defined below), and subject to
paragraph (b) below, the Escrow Agent shall release and deliver the Leases as
follows:
(i) upon receipt by the Escrow Agent of a Notice from Venture
Holdings stating that the Closing Date has occurred and directing the Escrow
Agent to release
and deliver the Leases to Venture Holdings, the Escrow Agent shall release and
deliver, after the elapse of the Waiting Period, the Leases to Venture Holdings;
(ii) upon receipt by the Escrow Agent of a Notice from Venture
Holdings stating that a Transferor has breached the Contribution Agreement
(other than a failure of a representation or warranty to be true and correct
that does not otherwise result from a breach of the Contribution Agreement by
such Transferor), setting forth in reasonable detail the factual and/or legal
basis and circumstances of the breach and directing the Escrow Agent to release
and deliver the Leases to Venture Holdings, the Escrow Agent shall release and
deliver, after the elapse of the Waiting Period, the Leases to Venture Holdings.
(iii) upon receipt by the Escrow Agent of a Notice from Winget
stating that, for a reason other than that set forth in subparagraph (ii) above,
the transactions contemplated by the Contribution Agreement have not been
consummated and the Contribution Agreement has been terminated, and directing
the Escrow Agent to release and deliver the Leases to Winget, the Escrow Agent
shall release and deliver, after the elapse of the Waiting Period, the Leases to
Winget.
(b) Objection to the Notice.
(i) At the time of delivery of any Notice to the Escrow Agent,
a duplicate copy of such Notice shall be delivered to Winget or Venture
Holdings, as the case may be (with proof of such delivery to the Escrow Agent
consisting of a photocopy of the registered or certified mail or overnight
courier receipt or the signed receipt if delivered by hand) ("Proof of
Delivery")). The Escrow Agent shall have no responsibility to determine whether
a copy of a Notice was delivered to Winget or Venture Holdings, as the case may
be, other than confirming it has received Proof of Delivery. Winget or Venture
Holdings, as the case may be, shall have a period of five (5) business days
following receipt of such Notice (the "Waiting Period") within which to object
in a written statement (an "Objection") to the claims made in the Notice. The
Objection shall state in reasonable detail the factual and/or legal basis for
such Objection and shall be delivered to the Escrow Agent, with a copy of such
Objection to the other party, prior to the expiration of the Waiting Period.
(ii) If Winget or Venture Holdings, as the case may be, makes
an Objection prior to the expiration of the Waiting Period, the Escrow Agent
shall not make any delivery of the Leases unless and until the dispute is
resolved finally pursuant to Sections 2(c) and/or 2(d) hereof. Conversely,
absent a timely Objection, after the expiration of the Waiting Period, the
Escrow Agent shall release and deliver the Leases in the manner described in the
applicable subparagraph of Section 2(a) hereof.
(iii) Nothing herein shall be construed to permit or require
the Escrow Agent to determine the sufficiency or legitimacy of either a Notice
or an Objection.
(c) Resolution of Disputes. If Winget or Venture Holdings, as the
case may be, delivers an Objection in accordance with Section 2(b), Winget and
Venture Holdings shall attempt in good faith for a period of thirty (30) days
thereafter (the "Negotiation Period") to agree upon the respective rights of the
parties with respect to the Leases. If Winget and Venture
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Holdings should so agree, a memorandum setting forth such accord shall be
prepared and signed by each of Winget and Venture Holdings and furnished to the
Escrow Agent. Such memorandum shall direct the disposition of the Leases. The
Escrow Agent shall be entitled to rely on any such memorandum and to release and
deliver the Leases in accordance with the terms thereof.
(d) Litigation. In the event Winget and Venture Holdings are unable
to reach an accord with regard to the respective rights of the parties with
respect to the Leases by the end of the Negotiation Period, then either party
may institute such actions or proceedings as they deem appropriate to resolve
the dispute. The Escrow Agent shall be entitled to act in accordance with any
judgment made and entered by any court (which judgment shall constitute a final
determination regardless of any existing right to appeal) and to authorize the
release and delivery of the Leases in accordance therewith. The Escrow Agent
shall not be obligated to inquire as to whether such court has jurisdiction of
the matter or of the parties.
3. Escrow Agent Fees and Expenses. For acting as Escrow Agent and
carrying out the duties of the Escrow Agent in accordance with the terms of this
Agreement, the Escrow Agent shall be entitled to such fees as are set forth on
Schedule A attached hereto. The Escrow Agent shall also be entitled to be
reimbursed for all of its out-of-pocket expenses, including without limitation
postage, stationery and supplies, printing, telephone and telegraph tolls,
travel and legal fees, that it incurs in performing its duties hereunder. All
fees and out-of-pocket expenses of the Escrow Agent for performance of its
duties hereunder shall be borne and paid equally by Winget and Venture Holdings.
4. Limitation of Liability; Indemnification of Escrow Agent.
(a) This Escrow Agreement sets forth all matters pertinent to the
escrow contemplated by this Escrow Agreement and no additional obligations of
the Escrow Agent shall be implied from the terms of this Escrow Agreement or any
other agreement. The duties of the Escrow Agent under this Escrow Agreement
shall be entirely administrative and shall be only as specifically provided in
this Escrow Agreement. Accordingly, the Escrow Agent, including its members,
employees and agents, shall:
(i) not be liable for any error of judgment or for any act
done or step taken or omitted by it in good faith, except for
any such acts, steps or omissions resulting from its own gross
negligence or willful misconduct;
(ii) be obligated to act only in accordance with written
notice received by it as provided in this Escrow Agreement;
(iii) have no responsibility to inquire into or determine the
genuineness, authenticity, or sufficiency of any security,
check, or other document or instrument submitted to it in
connection with its duties under this Escrow Agreement;
(iv) be entitled to deem the signatories of any document or
instrument submitted to it under this Escrow Agreement as
being those purported to be authorized to sign such document
or instrument on behalf of Venture
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Holdings and Winget and shall be entitled to rely upon the
genuineness of the signatures of such signatories without
inquiry and without requiring substantiating evidence of any
kind;
(v) be entitled to refrain from taking any action contemplated
by this Escrow Agreement in the event that it becomes aware of
any disagreement between or among Venture Holdings and Winget
as to any facts or as to the happening of any contemplated
event precedent to such action;
(vi) if any dispute shall arise between or among Venture
Holdings and Winget with respect to the release and delivery
of the Leases, be permitted to interplead the Leases into a
court of competent jurisdiction, and thereafter be fully
relieved from any and all liability or obligation with respect
to the Leases, and the parties further agree to pursue any
redress or recourse in connection with such a dispute without
making the Escrow Agent a party to such dispute; and
(vii) neither be responsible for, nor chargeable with
knowledge of, the terms and conditions of any other agreement,
instrument or document between or among Venture Holdings and
Winget, including but not limited to the Contribution
Agreement, and shall be required to act only pursuant to the
terms and provisions of this Escrow Agreement.
(b) The Escrow Agent is jointly and severally indemnified and saved
harmless by Venture Holdings and Winget from all losses, costs, and expenses,
including attorney's fees, which may be incurred by it as a result of its
involvement in any arbitration or litigation arising from the performance of its
duties under this Escrow Agreement, provided that such litigation shall not have
resulted from any action taken or omitted by it and for which it shall have been
adjudged to have been grossly negligent or engaged in willful misconduct and
such indemnification shall survive the termination of this Escrow Agreement
until extinguished by any applicable statute of limitations.
5. Resignation or Removal. The Escrow Agent may resign as Escrow Agent
following the giving of 30 days prior written notice to the other parties to
this Agreement and the Escrow Agent shall be replaced by mutual agreement of
Venture Holdings and Winget. Similarly, the Escrow Agent may be removed and
replaced following the giving of 30 days prior written notice to the Escrow
Agent by mutual agreement of Venture Holdings and Winget. In either event, the
duties of the Escrow Agent shall terminate 30 days after the date of such
written notice (or as of such earlier date as may be mutually agreeable) and the
Escrow Agent shall then deliver the Leases then in its possession to a successor
Escrow Agent as shall be appointed by Venture Holdings, or failing such
appointment, the Escrow Agent may petition any court of competent jurisdiction
for the appointment of a successor Escrow Agent or other appropriate relief, and
such resulting appointment shall be binding upon all of the parties to this
Agreement. Upon acknowledgment by any successor Escrow Agent of the Leases, the
then acting Escrow Agent shall be fully released and relieved of all duties,
responsibilities and obligations under this Escrow Agreement, except for any
liability with respect to any previous acts, steps or omissions
4
resulting from its own gross negligence or willful misconduct as set forth in
Section 4 of this Escrow Agreement.
6. Notices. All notices and other communications required or permitted
under this Escrow Agreement shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed by registered or certified mail,
postage prepaid and return receipt requested (such mailed notice to be effective
on the date such receipt is acknowledged), addressed as follows:
If to Venture Holdings, to the address listed on the signature page to
this Escrow Agreement.
with a copy to: Dykema Gossett PLLC
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, Michigan 48108
Attention: Barbara A. Kaye
Fax: (734) 214-7694
Email: bkaye@dykema.com
If to Winget, to the address listed on the signature page to this
Escrow Agreement.
with a copy to: Greenberg Traurig, LLP
77 W. Wacker Drive
Suite 2500
Chicago, Illinois 60601
Attention: Nancy A. Mitchell
Fax: (312) 456-8435
Email: mitchelln@gtlaw.com
If to the Escrow Agent: First American Title Insurance Company
30 N. LaSalle Street, Suite 310
Chicago, Illinois 60602
Attention: Jim McIntosh
Fax: (312) 553-0480
Email: jmcintosh@firstam.com
Any notice delivered by certified mail shall be effective on the fifth
day after deposited in the United States mail. Any notice delivered by
recognized commercial overnight courier shall be effective on the next business
day after delivery to the recognized commercial overnight courier. Any notice
delivered by facsimile transmission or e-mail shall be effective on the day of
transmission. The addresses indicated for any party may be changed by similar
written notice.
7. Entire Agreement. This Escrow Agreement constitutes the entire
understanding between the parties as to the subject matter of this Escrow
Agreement and no waiver or modification of the terms of this Escrow Agreement
shall be valid unless in writing and signed by Venture Holdings, Winget and the
Escrow Agent and only to the extent specifically set forth in writing.
5
8. Continuance of Agreement. This Escrow Agreement shall be binding
upon the parties to this Escrow Agreement and their respective successors and
assigns.
9. Applicable Law. This Escrow Agreement shall be governed by and
construed under and pursuant to the internal laws of the State of Michigan
without regard to its conflict of laws principles.
10. Counterparts. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
11. Invalid Clause. If any term, covenant, condition or provision of
this Escrow Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions of this Escrow
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
SIGNATURES APPEAR ON NEXT PAGE
6
TN WITNESS WHEREOF, each of the parties has caused this Escrow
Agreement to be duly executed by their respective officers as of the day and
year first above written,
COMPANY:
VENTURE HOLDINGS COMPANY LLC
By: /s/ JAMES E. BUTLER
-----------------------------------
Its: EVP
----------------------------------
Address: 33662 James J. Pompo Drive
Fraser, Michigan 48026
Facsimile Number: (586) 276-1843
Email: jbutler@ventureindustries.com
WINGET:
By:
-----------------------------------
Larry J. Winget
Address:
------------------------------
--------------------------------
Facsimile Number:
---------------------
Email:
--------------------------------
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
IN WITNESS WHEREOF, each of the parties has caused this Escrow
Agreement to be duly executed by their respective officers as of the day and
year first above written.
COMPANY:
VENTURE HOLDINGS COMPANY LLC
By:
------------------------------------
Its:
-----------------------------------
Address: 33662 James J.Pompo Drive
Fraser, Michigan 48026
Facsimile Number: (586)276-l843
Email: jbutler@ventureindustries.com
---------------------------------
WINGET:
By: /s/ LARRY J. WINGET
------------------------------------
Larry J. Winget
Address: 33662 James J. Pompo Drive
-------------------------------
Fraser, Michigan 48026
-------------------------------
Facsimile Number: (586)294-9580
Email: lwinget@ventureindustries.com
---------------------------------
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
------------------------------------
[Name]
[Title]
7
IN WITNESS WHEREOF, each of the parties has caused this Escrow
Agreement to be duly executed by their respective officers as of the day and
year first above written.
COMPANY:
VENTURE HOLDINGS COMPANY LLC
By:
------------------------------------
Its:
-----------------------------------
Address: 33662 James J.Pompo Drive
Fraser, Michigan 48026
Facsimile Number: (586)276-l843
Email:
---------------------------------
WINGET:
By:
------------------------------------
Larry J. Winget
Address:
-------------------------------
-------------------------------
Facsimile Number:
----------------------
Email:
---------------------------------
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By: /s/ GREGORY CHAPARRO
------------------------------------
[Name] Gregory Chaparro
[Title] Vice President &
National Counsel
Schedule A
A flat fee of $500.00.
8
EXECUTION COPY
EXHIBIT L
FORM OF CONFIRMATION ORDER
EX-14
EXECUTION COPY
EXHIBIT M
EMPLOYMENT AGREEMENT
EX-15
EXECUTION COPY
EXHIBIT N
FORM OF OPERATING AGREEMENT
EX-16