EXHIBIT 10.2
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re: )
) Case No. 03-48939
VENTURE HOLDINGS COMPANY LLC, et al.1, ) Jointly Administered
) Honorable Thomas Tucker
Debtors. )
)
)
DEBTORS' JOINT PLAN OF REORGANIZATION
Foley & Lardner
Judy A. O'Neill (P32142)
Laura J. Eisele (P42949)
150 West Jefferson, Suite 1000
Detroit, Michigan 48226
Dated: September 24, 2003 Counsel for Debtors and
Debtors-in-Possession
1 The Debtors include the following entities: Venture Holdings Company
LLC, Vemco, Inc., Venture Industries Corporation, Venture Mold & Engineering
Corporation, Venture Leasing Company, Vemco Leasing, Inc., Venture Holdings
Corporation, Venture Service Company, Experience Management LLC, Venture Europe,
Inc., and Venture EU Corporation.
INTRODUCTION TO PLAN
The above-captioned debtors and debtors-in-possession, Venture Holdings
Company LLC ("Venture"), Vemco, Inc., Venture Industries Corporation, Venture
Mold & Engineering Corporation, Venture Leasing Company, Vemco Leasing, Inc.,
Venture Holdings Corporation, Venture Service Company, Experience Management
LLC, Venture Europe, Inc., and Venture EU Corporation (each, including Venture,
a "Debtor" and collectively, the "Debtors"), jointly propose the following plan
of reorganization (the "Plan") pursuant to Chapter 11 of the Bankruptcy Code.
Under Section 1125(b) of the Bankruptcy Code, a vote to accept or reject
this Plan cannot be solicited from a Holder of a Claim or Interest until such
time as the Disclosure Statement has been approved by the Bankruptcy Court and
distributed to Holders of Claims or Interests. ALL HOLDERS OF CLAIMS AND
INTERESTS ARE ENCOURAGED TO READ THE PLAN AND DISCLOSURE STATEMENT IN THEIR
ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.
ARTICLE 1
DEFINITIONS
The following terms used in the Plan shall have the meanings specified
below, and such meanings shall be equally applicable to both the singular and
plural forms of such terms, unless the context otherwise requires. Any term used
in the Plan, whether or not capitalized, that is not defined in the Plan, but
that is defined in the Bankruptcy Code or Bankruptcy Rules, shall have the
meaning set forth in the Bankruptcy Code or the Bankruptcy Rules.
1.01 ADMINISTRATIVE CLAIMS. The collective reference to all Claims for
post-petition costs and expenses of administration of these Cases with priority
under Section 507(a)(1), 507(b), 503(b) or 1114(e)(2) of the Bankruptcy Code,
including: (a) the actual and necessary costs and expenses incurred after the
Petition Date of preserving the Estates and operating the businesses of Debtors,
(b) any indebtedness or obligations entitled to such priority under the
Bankruptcy Code, including Professional Fees, in each case to the extent allowed
by a Final Order of the Bankruptcy Court under Sections 330(a) or 331 of the
Bankruptcy Code and (c) all fees and charges assessed against the Estates under
Section 1930, Chapter 123 of Title 28, United States Code.
1.02 ADMINISTRATIVE CLAIM BAR DATE. The date by which all applications for
treatment of a Claim as an Allowed Administrative Claim must be filed with the
Bankruptcy Court and which date shall be the 90th day after the Effective Date
for Professional Fees and the 45th day after the Confirmation Date for all other
Administrative Claims.
1.03 AFFILIATE. This term shall have the meaning assigned to it in Section
101(2) of the Bankruptcy Code; provided that for purposes of the Plan, none of
the Venture B Group shall be considered to be Affiliates of the Debtors until a
Recovery.
1.04 ALLOWANCE DATE. The date a Claim becomes an Allowed Claim.
1.05 ALLOWED. With respect to any Claim against a Debtor to the extent
that (i) such Claim has not been withdrawn, paid in full, or otherwise deemed
satisfied in full, (ii) proof of such Claim was filed on or before the Claims
Filing Bar Date or the Administrative Claim Bar Date (or, if not filed by such
date, proof of such Claim was filed with leave of the Bankruptcy Court, after
notice and a hearing and entry of a Final Order) or was deemed timely filed or,
if no proof of claim is so filed, which Claim, as of the Confirmation Date, is
listed by the Debtors in their Schedules as liquidated in amount, not disputed,
and not contingent, and (iii) no objection to the allowance of such Claim or
action to subordinate, avoid, reclassify, classify, exchange, estimate, disallow
or otherwise limit recovery with respect thereto has been filed or interposed on
or before the Claims Objection Bar Date or such an objection or action having
been so interposed, to the extent that such Claim is allowed by a Final Order;
provided, however, that notwithstanding anything to the contrary contained
herein, any Claim specifically deemed allowed or disallowed in the Plan shall
be, or not be (as the case may be), an Allowed Claim to the extent so
specifically provided in the Plan. Unless otherwise ordered by the Bankruptcy
Court prior to Confirmation, or as specifically provided to the contrary in the
Plan with respect to any particular Claim, an "Allowed Claim" shall not include,
except as to any Allowed Secured Claim (i) any interest on such Claim to the
extent accruing or maturing on or after the Petition Date, (ii) punitive or
exemplary damages, or (iii) any fine, penalty, or forfeiture.
1.06 ALLOWED ADMINISTRATIVE CLAIM. Any Administrative Claim that is an
Allowed Claim; provided, however, that, unless an extension of time is granted
in writing by the appropriate Debtor, a Holder of any Administrative Claim
arising prior to the Confirmation Date -- other than for goods or services
provided to the Debtors during the Cases in the ordinary course of business --
must file a request for payment on or before the Administrative Claim Bar Date
in order to have such Administrative Claim eligible to be considered an Allowed
Administrative Claim.
1.07 ALLOWED CLASS CLAIM. Any Allowed Claim in the particular Class
described.
1.08 ALLOWED PRIORITY CLAIM. Any Priority Claim that is an Allowed Claim.
1.09 ALLOWED REJECTION CLAIM. Any Rejection Claim that is an Allowed
Claim.
1.10 ALLOWED SECURED CLAIM. Any Secured Claim that is an Allowed Claim.
1.11 ALLOWED TAX CLAIM. Any Tax Claim that is an Allowed Claim.
1.12 AMENDED OPERATING AGREEMENT. The operating agreement of Venture as
amended effective as of the Effective Date in the form of Exhibit A.
1.13 ASSETS. All of the right, title, and interest of the Debtors in and
to any and all assets and property, whether tangible, intangible, real, or
personal, that constitute property of the Debtors' Estates within the purview of
Section 541 of the Bankruptcy Code, including without limitation, any and all
claims, Causes of Action, or rights of the Debtors under federal or state law.
1.14 AVOIDANCE ACTIONS. All Causes of Action the Debtors may assert under
Sections 502, 510, 541, 542, 543, 544, 545, 547 through 551 and 553 of the
Bankruptcy Code, or under
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related state or federal statutes and common law, including fraudulent transfer
laws, whether or not Causes of Action are commenced to prosecute such Avoidance
Actions, but excluding any and all Causes of Action released under the Plan. A
list of Avoidance Actions is attached as Exhibit B hereto.
1.15 BANK ADEQUATE PROTECTION CLAIM. Any priority or replacement lien
claims granted to the Pre-Petition Lenders pursuant to the terms of the Cash
Collateral Order.
1.16 BANK CLAIMS. All Claims against the Debtors arising under or relating
to the Existing Bank Facility except for the Bank Pre-Petition Priority Claims.
1.17 BANK JUNIOR NOTES. Junior secured notes in the aggregate principal
amount of $50.0 million to be issued on the Effective Date to the Pre-Petition
Lenders in accordance with the Restructured Credit Agreement. The obligations
evidenced by the Bank Junior Notes will be subordinate in right of payment to
the Exit Financing Facility, and the liens securing payment of the Bank Junior
Notes will be subordinate in priority to the liens securing payment of both the
Exit Facility and the Bank Senior Notes.
1.18 BANK PRE-PETITION PRIORITY CLAIMS. Those Bank Claims, in the
approximate amount of $6 million, that are entitled, pursuant to the terms of
the Existing Bank Facility, to priority in right of payment of collateral
proceeds relative to all other Bank Claims.
1.19 BANK SECURED CLAIMS. The Allowed Secured Claims of the Pre-Petition
Lenders.
1.20 BANK SENIOR NOTES. Senior secured notes in an aggregate principal
amount equal to the total principal amount of the Bank Claims on the Effective
Date, minus $225 million. The Debtors estimate that the principal amount of the
Bank Senior Notes will be approximately $195 million. The Bank Senior Notes
shall be issued on the Effective Date to the Pre-Petition Lenders in accordance
with the Restructured Credit Agreement. The obligations evidenced by the Bank
Senior Notes will be subordinate in right of payment to the Exit Financing
Facility and the liens securing payment of the Bank Senior Notes will be
subordinate in priority to the liens securing payment of the Exit Financing
Facility.
1.21 BANKRUPTCY CODE. The Bankruptcy Reform Act of 1978, Title 11, United
States Code, as amended from time to time, and made applicable to these Cases.
1.22 BANKRUPTCY COURT. The United States Bankruptcy Court for the Eastern
District of Michigan, Southern Division, or any other court of competent
jurisdiction exercising jurisdiction over these Cases.
1.23 BANKRUPTCY RULES. The Federal Rules of Bankruptcy Procedure,
promulgated under Section 2075, Title 28, United States Code, as amended from
time to time, and made applicable to these Cases and the local rules of the
Bankruptcy Court as amended from time to time and made applicable to these
Cases.
1.24 BOARD. The board of managers, board of directors or similar governing
body of any Person, as the case may be.
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1.25 BUSINESS DAY. A day other than a Saturday, Sunday, "legal holiday"
(as such term is defined in Bankruptcy Rule 9006(a)), or any other day on which
commercial banks in Detroit, Michigan are authorized or required by law to
close.
1.26 CASE OR CASES. Each of the Cases under Chapter 11 of the Bankruptcy
Code commenced by the Debtors on the Petition Date in the Bankruptcy Court,
styled and jointly administered under the case caption In re Venture Holdings
Company, LLC., et al. and bearing case number 03-48939.
1.27 CASH COLLATERAL ORDER. The final cash collateral order, entered by
the Bankruptcy Court on April 4, 2003, as amended from time to time.
1.28 CAUSES OF ACTION. Any and all actions, proceedings, causes of action,
suits, accounts, controversies, promises to pay, rights to legal remedies,
rights to equitable remedies, rights to payment and claims, whether known,
unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured and whether asserted or assertable directly or derivatively, in law,
equity or otherwise by any of the Debtors against any Person which exists on or
before the Effective Date, including, without limitation, the Avoidance Actions,
the Winget Actions and the Extinguished Actions. Causes of Action shall include
all claims and causes of action described in the Disclosure Statement and
Schedules and Exhibits B and C to the Plan.
1.29 CERTIFICATE OF FORMATION. The certificate of formation of Venture
Delaware.
1.30 CLAIM. Any right to payment from a Debtor arising, or with respect to
which the obligation giving rise to such right has been incurred, before the
Effective Date, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured; or any right arising, or with respect to
which the obligation giving rise to such right has been incurred, before the
Effective Date, to an equitable remedy for breach of performance if such breach
gives rise to a right to payment from a Debtor, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.
1.31 CLAIMS FILING BAR DATE. October 15, 2003 or as otherwise provided in
the Order Establishing Bar Dates for Filing Proofs of Claim and Proofs of
Interest and Approving Form and Manner of Notice Thereof filed with the
Bankruptcy Court on August 29, 2003, or, in the case of Claims allowable as a
result of a judgment or order, the time set by Bankruptcy Rule 3002(4).
1.32 CLAIMS OBJECTION DEADLINE. The date which is 180 days after the
Effective Date, as the same may be from time to time extended by the Bankruptcy
Court.
1.33 CLASS. A category, designated herein, of Claims or Interests that are
substantially similar to the other Claims or Interests in such category as
specified in Article 2 of the Plan.
1.34 COMMON MEMBERSHIP INTERESTS. The common equity interests in Venture
Delaware.
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1.35 CONFIRMATION. The entry of the Confirmation Order by the Bankruptcy
Court on the docket of the Bankruptcy Court.
1.36 CONFIRMATION DATE. The date upon which the Confirmation Order is
entered on the docket of the Bankruptcy Court.
1.37 CONFIRMATION HEARING DATE. The date or dates of the hearing on
confirmation of the Plan, as may be continued from time to time.
1.38 CONFIRMATION ORDER. The order of the Bankruptcy Court confirming the
Plan, in form and substance reasonably acceptable to the Debtors, Winget and the
Steering Committee, and in the form agreed to pursuant to the Contribution
Agreement and attached thereto.
1.39 CONTRIBUTION AGREEMENT. The Contribution Agreement in the form
attached hereto as Exhibit D, pursuant to which (and subject to the terms and
conditions thereof) Winget has committed, inter alia, to contribute on the
Effective Date the equity interests or certain assets of the Transferred Winget
Entities to Venture Delaware in exchange for 100% of the Common Membership
Interests of Venture Delaware pursuant to the terms of the Contribution
Agreement and the Plan.
1.40 CONVERSION DATE. The date that is the earlier of (i) the second
annual anniversary of the Effective Date; or (ii) the date during the Option A
Period upon which Winget exercises Option A.
1.41 CREDITOR. A Person defined as a "creditor" in Section 101(10) of the
Bankruptcy Code.
1.42 CREDITORS' COMMITTEE. The official committee of unsecured creditors
appointed in the Case pursuant to Section 1102(a) of the Bankruptcy Code.
1.43 CREDITORS' TRUST. The trust that is created pursuant to this Plan to
be administered by the Trustee with the advice and/or direction of the Oversight
Committee, all as more specifically set forth in this Plan and the Trust
Agreement.
1.44 CREDITORS' WARRANT. The warrant to be issued to the Creditor's Trust
in substantially the form of the attached Exhibit K, as described in Section
5.05 of the Plan.
1.45 DEBTOR(S). Any or a collective reference to all of Venture Holdings
Company LLC, Vemco, Inc., Venture Industries Corporation, Venture Mold &
Engineering Corporation, Venture Leasing Company, Vemco Leasing, Inc., Venture
Holdings Corporation, Venture Service Company, Experience Management LLC,
Venture Europe, Inc., and Venture EU Corporation.
1.46 DIP FACILITY. All obligations under the Post-Petition Credit
Agreement among Venture, as borrower, the Post-Petition Agent and the lenders
party thereto as amended, and all documents ancillary thereto, including,
without limitation, the guaranties of the other Debtors and Deluxe Pattern
Company executed in connection therewith.
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1.47 DIP ORDER. The Final Order Authorizing Debtors in Possession to Enter
Into Post-Petition Financing Agreement and Obtain Post-Petition Financing
Pursuant to Sections 363 and 364 of the Bankruptcy Code and Providing Adequate
Protection and Granting Liens, Security Interests and Superpriority Claims and
Authorizing Debtors to Enter Into Access and Accommodation Agreements entered by
the Bankruptcy Court on March 31, 2003, as amended from time to time.
1.48 DISBURSING AGENT. The Reorganized Debtors or any Person designated by
the Reorganized Debtors to serve as a disbursing agent under Article 8 of the
Plan.
1.49 DISCLOSURE STATEMENT. The Disclosure Statement that relates to and
accompanies the Plan, as it may be supplemented, amended or modified from time
to time, and that is prepared and distributed in accordance with Section 1125 of
the Bankruptcy Code, and in form and substance acceptable to Debtors, the
Steering Committee and Winget.
1.50 DISPUTED CLAIM. A Claim as to which a Proof of Claim has been filed,
or deemed filed under applicable law, as to which an objection has been or may
be timely filed and which objection, if timely filed, has not been withdrawn or
has not been overruled, denied or resolved by a Final Order. Prior to the
Confirmation Hearing Date, for the purposes of the Plan, unless such Claim is
temporarily allowed pursuant to Bankruptcy Rule 3018, a Claim shall be
considered a Disputed Claim in its entirety if: (i) the amount of the Claim
specified in the Proof of Claim exceeds the amount of any corresponding Claim
scheduled by a Debtor in its Schedules; (ii) any corresponding Claim scheduled
by a Debtor in its Schedules has been scheduled as disputed, contingent, or
unliquidated, irrespective of the amount scheduled; or (iii) no corresponding
Claim has been scheduled by a Debtor in its Schedules.
1.51 DISTRIBUTIONS. The distributions to be made in accordance with the
Plan of, as the case may be: (a) cash, (b) Bank Junior Notes, (c) Bank Senior
Notes, (d) Common Membership Interests, (e) Preferred Membership Interests, (f)
the Creditors' Warrant, (g) other interests in the Creditors' Trust and (h) any
other distributions to Holders of Claims under the terms and provisions of the
Plan.
1.52 EFFECTIVE DATE. The first Business Day: (a) on which no stay of the
Confirmation Order is in effect; and (b) on which all conditions in Article 10
of the Plan have been satisfied or have been waived in accordance with the Plan.
1.53 EMPLOYMENT AGREEMENTS. The Employment Agreements between Venture
Delaware and the CEO, CFO and other officers to be employed by Venture Delaware
after the Effective Date.
1.54 EQUITY INTERESTS. The interests of any Holder of common or preferred
equity securities of or membership interests in Venture, and all options,
warrants, put rights, contractual or otherwise, to acquire any such equity
securities or membership interests, as such interests exist immediately prior to
the Effective Date.
1.55 ESTATE. The estate of a Debtor in this Case, created pursuant to
Section 541 of the Bankruptcy Code.
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1.56 EXCHANGE ACT. The Securities Exchange Act of 1934, as now in effect
or hereafter amended.
1.57 EXECUTORY CONTRACT. Any executory contract or unexpired lease,
subject to Section 365 of the Bankruptcy Code, between a Debtor and any other
Person or Persons, specifically excluding contracts and agreements entered into
pursuant to the Plan.
1.58 EXHIBIT FILING DATE. The date on which Exhibits to the Plan shall be
filed with the Bankruptcy Court, which date shall be at least ten (10) days
prior to the Voting Deadline or such later date as may be approved by the
Bankruptcy Court.
1.59 EXISTING BANK FACILITY. The obligations under the Credit Agreement
among Venture, as Borrower, the Pre-Petition Lenders and Bank One, N.A., as
Administrative Agent (as amended, supplemented and modified to the date of the
Plan), dated as of May 27, 1999, as amended prior to the date hereof, and all
documents executed ancillary thereto.
1.60 EXIT FINANCING FACILITY. The exit financing facility obtained by the
Reorganized Debtors and pursuant to the provisions of the Plan, which shall be
senior in lien and payment priority to the Bank Senior Notes and the Bank Junior
Notes pursuant to the Subordination Agreement and which shall be a condition to
the Effective Date.
1.61 EXIT LENDERS. The lenders under the Exit Financing Facility.
1.62 EXTINGUISHED ACTIONS. Any Causes of Action that the Debtors have
against the Transferred Winget Entities.
1.63 FINAL ORDER. An order or judgment entered by the Bankruptcy Court
that has not been reversed, stayed, modified, or amended and that has not been
and may no longer be appealed from or otherwise reviewed or reconsidered, as a
result of which such order or judgment shall have become final and
non-appealable in accordance with Bankruptcy Rule 8002.
1.64 GENERAL UNSECURED CLAIMS. All Claims which are not Secured Claims,
Priority Claims, Tax Claims or Administrative Claims and are not otherwise
entitled to priority under the Bankruptcy Code or an order of the Bankruptcy
Court.
1.65 GENERAL UNSECURED CREDITORS. Creditors holding General Unsecured
Claims.
1.66 GERMAN INSOLVENCY PROCEEDINGS. Those insolvency proceedings pending
in Germany of Venture Germany GmbH, Venture Verwaltungs GmbH, Venture
Beteiligungs GmbH and Peguform GmbH & Co KG.
1.67 GUARANTY. A guaranty of payment and/or collection of the Existing
Bank Facility executed by the Transferred Winget Entities, Winget or the
Retained Entities in favor of the Pre-Petition Agent for the benefit of the
Pre-Petition Lenders.
1.68 HOLDER. A holder of a Claim or Interest.
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1.69 IMPAIRED. With respect to any Claim or Interest, that such Claim or
Interest is impaired within the meaning of Section 1124 of the Bankruptcy Code.
1.70 INDENTURE TRUSTEE. The Huntington National Bank, the entity currently
serving as indenture trustee under the Old Senior Notes Indentures and the Old
Subordinated Notes Indenture, or any successor trustee appointed thereunder from
time to time.
1.71 INDEPENDENT DIRECTOR. A director who meets the qualifications for
being "Independent' as defined by the rules of the NASDAQ National Market.
1.72 INTERCOMPANY CLAIMS. Claims of a Debtor against another Debtor.
1.73 INTEREST. An ownership interest in Venture as evidenced by an equity
security (as such term is defined in Section 101(16) of the Bankruptcy Code) of
Venture, any rights to any dividends or distributions as a result of such
ownership, and any option, warrant, or right to acquire any such ownership
interest.
1.74 LIEN. A charge against or interest in property to secure payment of a
debt or performance of an obligation.
1.75 MICHIGAN WORKER'S COMPENSATION PROGRAM. The self-insured worker's
compensation programs maintained in Michigan by Debtors that are approved by the
state of Michigan, Department of Consumer and Industry Services pursuant to the
Michigan Workers' Disability Compensation Act, MCL 418.101, et seq.
1.76 NEW LEASES. New long-term leases for the Harper facility, the Masonic
building and the equipment located therein, with the Debtors, on fair market
value terms and in the form attached to the Contribution Agreement.
1.77 NOMINEE. For any Holder of a Claim or Interest, the designated
representative of any such Holder.
1.78 NOTE CLAIMS. The Old Senior Notes Claims and the Old Subordinated
Notes Claims.
1.79 OLD NOTES. The Old Senior Notes and Old Subordinated Notes,
collectively.
1.80 OLD SENIOR NOTES. Collectively, the 9-1/2% Senior Notes due 2005, and
the 11% Senior Notes due 2007, as amended.
1.81 OLD SENIOR NOTES CLAIMS. All Claims against the Debtors on account
of, or relating to, the Old Senior Notes or arising under the Old Senior Notes
Indenture, including any Claim arising from any guaranty of such Old Senior
Notes.
1.82 OLD SENIOR NOTES INDENTURES. The Indenture dated as of July 1, 1997,
as amended, among Venture Holdings Trust, Vemco, Inc., Vemco Leasing, Inc.,
Venture Industries Corporation, Venture Holdings Corporation, Venture Leasing
Company, Venture Mold & Engineering Corporation and Venture Service Company, as
Issuers, and The Huntington
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National Bank, as Trustee, pursuant to which the 9-1/2% Senior Notes due 2005
were issued, and the Indenture dated as of May 27, 1999, between Venture
Holdings Trust, as Issuer, and The Huntington National Bank, as Trustee,
pursuant to which the 11% Senior Notes due 2007 were issued, collectively.
1.83 OLD SUBORDINATED NOTES. The 12% Senior Subordinated Notes due 2009,
as amended.
1.84 OLD SUBORDINATED NOTES CLAIMS. All Claims against the Debtors on
account of, or relating to, the Old Subordinated Notes or arising under the Old
Subordinated Notes Indenture, including any Claim arising from any guaranty of
such Old Subordinated Notes.
1.85 OLD SUBORDINATED NOTES INDENTURE. The indenture dated as of May 27,
1999, as amended, between Venture Holdings Trust, as Issuer, and The Huntington
National Bank, as Trustee, pursuant to which the 12% Senior Subordinated Notes
due 2009 were issued.
1.86 OPERATING AGREEMENT. The limited liability agreement of Venture
Delaware which (i) shall set forth the rights and preferences of the Common
Membership Interests and the Preferred Membership Interests; and (ii) is in the
form attached as Exhibit N to the Contribution Agreement.
1.87 OPTION A. An option of Winget during the Option A Period to cause
Venture Delaware to redeem 100% of the Preferred Membership Interests for the
Option A Exercise Price, as more specifically set forth in the Operating
Agreement.
1.88 OPTION A EXERCISE PRICE. The cash exercise price equal to the par
amount of the Preferred Membership Interests plus all accrued and unpaid
dividends at the time that Option A is exercised.
1.89 OPTION A PERIOD. A period of two years after the Effective Date.
1.90 OTHER SECURED CLAIMS. Any Secured Claim other than the Bank Group
Secured Claims.
1.91 OVERSIGHT COMMITTEE. A three member committee comprised of
representatives selected in accordance with the Trust Agreement, that will
supervise the prosecution, valuation and distribution of Trust Assets.
1.92 PERSON. An individual, a corporation, a partnership, a limited
liability company, an association, a joint stock company, a joint venture, an
estate, a trust, an unincorporated organization, a government or any political
subdivision thereof, or any other entity.
1.93 PETITION DATE. March 28, 2003.
1.94 PLAN. This Joint Plan of Reorganization and all supplements and
exhibits hereto, as the same may be amended or modified by the Debtors from time
to time pursuant to and in accordance with the Plan, the Bankruptcy Code, the
Bankruptcy Rules and the Contribution Agreement.
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1.95 POST-PETITION AGENT. Bank One, N.A. as the Administrative Agent under
the DIP Facility.
1.96 PRE-PETITION AGENT. Bank One, N.A. as the Administrative Agent under
the Existing Bank Facility.
1.97 PRE-PETITION LENDERS. The financial institutions party to the
Existing Bank Facility as lenders, including the Pre-Petition Agent, and their
respective successors and assigns.
1.98 PREFERRED MEMBERSHIP INTERESTS. $175.0 million of preferred
membership interests of Venture Delaware having the rights and preferences set
forth in the Operating Agreement, including certain voting rights and the right
to appoint directors to the Board.
1.99 PRIORITY CLAIMS. All Claims that are entitled to priority pursuant to
Section 507(a) of the Bankruptcy Code and that are not Administrative Claims or
Tax Claims.
1.100 PROFESSIONAL[S]. Any professional(s) employed in this Case pursuant
to Section 327 or Section 1103 of the Bankruptcy Code or otherwise, and any
professional(s) seeking compensation or reimbursement of expenses in connection
with this Case pursuant to Sections 330, 331, and/or 503(b)(4) of the Bankruptcy
Code.
1.101 PROFESSIONAL FEES. All fees due and owing to any Professional for
compensation or reimbursement of costs and expenses relating to services
incurred after the Petition Date and prior to and including the Effective Date,
other than the Professionals for the Pre-Petition Lenders who are paid pursuant
to the DIP Facility and the Existing Bank Facility.
1.102 PROOF OF CLAIM. Any written statement filed under oath in this Case
by a Creditor, in conformance with the Bankruptcy Code and Bankruptcy Rules in
which such Creditor sets forth the amount owed and sufficient detail to identify
the basis for a Claim.
1.103 PRO RATA. Proportionately, so that a Pro Rata distribution with
respect to an Allowed Claim of a particular Class bears the same ratio to all
distributions on account of a particular Class or Classes, as the dollar amount
of such Allowed Claim bears to the dollar amount of all Allowed Claims in such
Class or Classes.
1.104 RECORD DATE. The deadline set by the Bankruptcy Court for
determining the Holders of Claims and Interests entitled to vote on the Plan
which shall be, in any case, not later than the date of entry of an order
approving the Disclosure Statement.
1.105 RECOVERY OR RECOVERED. With respect to any Venture B Group entity,
the return of control of such company to such entity's direct or indirect U.S.
parent upon the conclusion of the German Insolvency Proceedings related to such
entity (which conclusion may occur prior to the termination thereof in
accordance with applicable law).
1.106 REGISTRATION RIGHTS AGREEMENT. A registration rights agreement
pursuant to which the Holders of the Preferred Membership Interests would be
entitled to certain registration rights.
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1.107 REJECTION CLAIMS. All Claims arising as a result of a Debtor's
rejection of executory contracts pursuant to Sections 365 and 1123 of the
Bankruptcy Code, subject to the limitations provided in Section 502(b) of the
Bankruptcy Code. To the extent a Rejection Claim is secured, it will be
considered an Other Secured Claim for purposes of treatment in this Plan.
1.108 REORGANIZATION DOCUMENTS. The Restructured Credit Agreement, the
Bank Senior Notes, the Bank Junior Notes, the Preferred Membership Interests,
the Common Membership Interests, the Operating Agreement, the Amended Operating
Agreement, the Certificate of Formation, the Contribution Agreement (and
exhibits thereto), the Subordination Agreement, the New Leases, the Registration
Rights Agreement, the Creditors' Warrant, the Trust Agreement, the Employment
Agreements, the Exit Financing Facility and all other documents necessary to
effectuate the Plan, which documents shall (a) be filed by the Debtors with the
Bankruptcy Court not later than twenty (20) days before the commencement of the
Confirmation Hearing, unless otherwise specified herein; and (b) be reasonably
satisfactory to Winget, the Steering Committee and the Debtors.
1.109 REORGANIZED DEBTORS. The Debtors from and after the Effective Date
determined after giving effect to the transactions contemplated by the Plan,
including the transactions contemplated under the Contribution Agreement.
1.110 REORGANIZED VENTURE. The Reorganized Debtors and Venture Delaware
taken as a whole (including all contributed assets and all indirect and direct
subsidiaries of the Reorganized Debtors and Venture Delaware) after the
Effective Date of the Plan.
1.111 RESTRUCTURED CREDIT AGREEMENT. The post-Confirmation credit
agreement governing the notes issued to the Pre-Petition Lenders in Class 3
under the Plan.
1.112 RETAINED ACTIONS. Means (a) all claims, rights of action, suits and
proceedings, whether in law or in equity, whether known or unknown, which any
Debtor may hold against any Person, including, without limitation, any Causes of
Action brought prior to the Petition Date, and actions against any Persons for
failure to pay for products or services provided or rendered by the Debtors, (b)
all claims, Causes of Action, suits and proceedings relating to strict
enforcement of the Debtors' intellectual property rights, including patents,
copyrights and trademarks, and (c) all claims or Causes of Action seeking the
recovery of the Debtors' accounts receivable or other receivables or rights to
payment created or arising in the ordinary course of the Debtors' business.
1.113 RETAINED ENTITIES. Those entities listed on Exhibit D to the
Contribution Agreement.
1.114 SCHEDULES. The schedules of assets and liabilities and the
statements of financial affairs filed in the Bankruptcy Court by the Debtors, if
any, as such schedules or statements may be amended or supplemented from time to
time in accordance with Bankruptcy Rule 1009 or orders of the Bankruptcy Court.
1.115 SECURED CLAIMS. All Claims that are secured by a valid, perfected,
enforceable, and non-avoidable Lien on any of the assets of a Debtor or that are
subject to setoff under Section 553 of the Bankruptcy Code, to the extent of the
value of the interest of each Holder of
11
such Claim in such Debtor's interest in the liened Assets or to the extent of
the amount of the setoff, as applicable; provided, however, that if the Holder
of a Secured Claim elects application of Section 1111(b)(2) of the Bankruptcy
Code, then such Holder's Claim shall be a Secured Claim to the extent such Claim
is Allowed.
1.116 SENIOR MANAGEMENT. The Chief Executive Officer, the Chief Financial
Officer, the Chief Operating Officer and the General Counsel of Venture
Delaware.
1.117 SPECIAL COMMITTEE. A special committee of the Board of Venture
Delaware consisting solely of the CEO and the designees of the Holders of the
Preferred Membership Interests, which committee shall have the sole and
exclusive power and authority to evaluate and approve or reject any proposed
related party transaction.
1.118 STEERING COMMITTEE. The Pre-Petition Agent, Barclays Bank PLC,
Highland Capital Management, L.P., Marathon Asset Management, LLC, Apollo
Management, LP and Black Diamond Capital Management L.L.C.
1.119 SUBORDINATION AGREEMENT. An intercreditor and subordination
agreement between the Pre-Petition Lenders and the Exit Lenders, which may
include, at a minimum, the terms set forth on Exhibit E.
1.120 TAX CLAIMS. All Claims that are entitled to priority under Section
507(a) (8) of the Bankruptcy Code.
1.121 TRANSFERRED WINGET ENTITIES. The entities and assets (a) listed in
Exhibit E to the Contribution Agreement and (b) to be transferred pursuant to
Section 9.3(h) of the Contribution Agreement.
1.122 TRUST AGREEMENT. That certain trust agreement which is to govern the
Creditors' Trust, substantially in the form attached as Exhibit F to this Plan,
pursuant to which, among other things, the Trust Assets shall be liquidated and
distributed to the General Unsecured Creditors, in a manner consistent with the
terms of this Plan.
1.123 TRUST ASSETS. The Winget Actions, other than the Extinguished
Actions, the Creditors' Warrant and any equity interests issued pursuant to the
exercise thereof and the Avoidance Actions.
1.124 TRUSTEE. The trustee of the Creditors' Trust as designated in the
Trust Agreement.
1.125 UNIMPAIRED. Means, with respect to any Claim, that such Claim is not
impaired within the meaning of Section 1124 of the Bankruptcy Code.
1.126 UNSECURED CONVENIENCE CLAIMS. Allowed Claims of General Unsecured
Creditors which are either (a) in an amount less than $10,000; or (b) in an
amount in excess of $10,000 which are reduced by an irrevocable written election
of the Holder of such Claim made on a properly delivered ballot; provided,
however, that (y) individual General Unsecured Claims of a single Holder that
are Allowed in an amount of $10,000 or less will not be treated as
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separate Unsecured Convenience Claims if the aggregate of all General Unsecured
Claims held by such Holder exceeds $10,000 and no such election is made, and (z)
any General Unsecured Claim that was originally Allowed in excess of $10,000 may
not be subdivided into multiple General Unsecured Claims of $10,000 or less for
purposes of receiving treatment as an Unsecured Convenience Claim.
1.127 VALUATION DETERMINATION DATE. The date on which the Bankruptcy Court
values the elements of the Creditors' Warrant.
1.128 VALUE OF DEBTORs. The fair market value of the Debtors, including
the Debtors' interests in their direct and indirect subsidiaries as of the
Effective Date, determined in accordance with the Warrant Valuation Procedures,
exclusive of the Value of the Venture B Assets.
1.129 VALUE OF EXTINGUISHED ACTIONS. The value (after giving consideration
to all defenses, counterclaims, offsets or similar rights and litigation costs)
of each Extinguished Action on an entity by entity basis as of the Effective
Date, determined either (i) by a Bankruptcy Rule 9019 settlement between the
Debtors and the Transferred Winget Entities approved prior to the Valuation
Determination Date, or (ii) by the Bankruptcy Court in accordance with the
Warrant Valuation Procedures. For purposes of determining the Value of the
Extinguished Actions, defenses shall include the consideration, to the extent
relevant, of, among other things (a) Liens of the Pre-Petition Lenders on the
assets subject to the Extinguished Actions, (b) any subrogation rights of the
Transferred Winget Entities or Winget subject to defenses, if any, and (c) the
amount of any Claims which would have priority over Class 5 Claims (to the
extent that such priority claims do not reduce the positive balance, if any of
the sum specified in (a)(i) above).
1.130 VALUE OF REORGANIZED VENTURE. The fair market value of the common
equity in Reorganized Venture, determined in accordance with the Warrant
Valuation Procedures (and taking into account, for purposes of such valuation,
the Reorganized Venture's interests in the Venture B Assets).
1.131 VALUE OF VENTURE B ASSETS. The fair market value of the Debtors'
interests in the Venture B Assets as of the Effective Date determined either (i)
by receipt by Venture of actual net after-tax proceeds of the sale of the
Venture B Assets if the sale occurs prior to the Valuation Determination Date or
(ii) in accordance with the Warrant Valuation Procedures.
1.132 VENDOR SUPPORT AGREEMENT. An agreement substantially in the form of
Exhibit G to the Plan pursuant to which a General Unsecured Creditor agrees to
provide post-Confirmation credit on terms set forth in such agreement,
including, without limitation, customary pricing terms, no less than net-60 day
payment terms and credit limits no less than those which were in place as of
January 1, 2002, to one or more of the Reorganized Debtors, which agreement
shall be executed and delivered to the Reorganized Debtors on or before the
Effective Date.
1.133 VENDOR SUPPORT CLAIMS. Claims of the General Unsecured Creditors who
execute and deliver a Vendor Support Agreement.
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1.134 VENTURE. Venture Holdings Company LLC, a Michigan limited liability
company and one of the Debtors hereunder.
1.135 VENTURE B ASSETS. The Peguform related assets in Germany, Spain,
Mexico and Brazil that are owned by the Venture B Group.
1.136 VENTURE B GROUP. The entities listed on Exhibit H to the Plan.
1.137 VENTURE DELAWARE. Venture Companies, LLC, a new Delaware limited
liability company, which will be formed on or before the Effective Date.
1.138 VOTING DEADLINE. The date established by the Bankruptcy Court as the
last date by which Creditors are required to submit ballots in favor of or
against the Plan, as such date may be extended from time to time.
1.139 WARRANT VALUATION PROCEDURES. The procedure by which the Bankruptcy
Court will estimate the Value of the Creditors' Warrant as set forth in Section
5.05(b) of the Plan.
1.140 WINGET. Larry Winget.
1.141 WINGET ACTIONS. All Causes of Action (if any) that the Debtors have
against Winget (personally), companies or entities controlled by Winget or
Affiliates of Winget that are not Extinguished Actions.
ARTICLE 2
CLASSIFICATION OF CLAIMS AND INTERESTS
In accordance with Section 1123(a) (1) of the Bankruptcy Code,
Administrative Claims, Tax Claims and DIP Facility Claims have not been
classified. For the purposes of the Plan, Claims against, or Interests in, the
Debtors are grouped as follows in accordance with Section 1122(a) of the
Bankruptcy Code:
2.01 CLASS 1. PRIORITY CLAIMS. Class 1 consists of all Allowed Priority
Claims. Class 1 is Unimpaired.
2.02 CLASS 2. BANK PRE-PETITION PRIORITY CLAIMS. Class 2 consists of all
Allowed Bank Pre-Petition Priority Claims. Class 2 is Impaired.
2.03 CLASS 3. BANK CLAIMS. Class 3 consists of all Allowed Bank Claims,
including all Bank Secured Claims and all Bank Adequate Protection Claims, held
by the Holders of Bank Claims. Class 3 is Impaired.
2.04 CLASS 4. OTHER SECURED CLAIMS. Class 4 consists of all Other Secured
Claims. Each Other Secured Claim shall constitute a separate sub-class
(designated, for example, as Class 4.1) for purposes of voting and distribution.
Class 4 is Unimpaired.
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2.05 CLASS 5. GENERAL UNSECURED CLAIMS. Class 5 consists of all Allowed
General Unsecured Claims, including the Note Claims, but excluding (i) Unsecured
Convenience Claims and (ii) Vendor Support Claims. Class 5 is Impaired.
2.06 CLASS 6. VENDOR SUPPORT CLAIMS. Class 6 consists of all Holders of
Allowed General Unsecured Claims who opt to become Holders of Vendor Support
Claims. Class 6 is Impaired.
2.07 CLASS 7. UNSECURED CONVENIENCE CLAIMS. Class 7 consists of all
Allowed Unsecured Convenience Claims. Class 7 is Impaired.
2.08 CLASS 8. EQUITY INTERESTS. Class 8 consists of all Allowed Equity
Interests. Class 8 is Impaired.
ARTICLE 3
TREATMENT OF UNCLASSIFIED CLAIMS
3.01 ADMINISTRATIVE CLAIMS. Each Holder of an Allowed Administrative
Claim, except for Holders of DIP Facility Claims and Bank Adequate Protection
Claims, shall receive, in full satisfaction of such Allowed Claim, cash equal to
the amount of such Claim on the later of (i) the Effective Date and (ii) the
date that is ten (10) days after the Allowance Date, unless such Holder shall
have agreed to different treatment of such Allowed Claim; provided, however,
that Allowed Administrative Claims representing obligations incurred in the
ordinary course of business by a Debtor shall be paid or performed in accordance
with the terms and conditions of the particular transactions and any agreements
relating thereto. Nothing herein shall be deemed to accelerate a Debtor's
obligation to make payment on account of any Administrative Claim that is not
due and owing as of the Confirmation Date, is not Allowed, or is subject to
ongoing objections in the Bankruptcy Court or other court of competent
jurisdiction.
3.02 TAX CLAIMS. Each Holder of an Allowed Tax Claim shall receive in full
satisfaction of such Allowed Tax Claim, at the election of the relevant Debtor,
in its sole discretion, either (i) cash equal to the amount of such Claim on the
later of (1) the Effective Date, and (2) the date that is 10 days after the
Allowance Date, unless such Holder shall have agreed to different treatment of
such Allowed Claim, (ii) in accordance with Section 1129(a)(9)(C) of the
Bankruptcy Code, cash payments in equal monthly installments commencing on the
first Business Day of the month succeeding the month in which the Effective Date
occurs and continuing on the first Business Day of each month thereafter, until
the month which is six (6) years after the date of assessment of such Claim
totaling the principal amount of such Claim plus interest on any outstanding
balance from the Effective Date calculated at the interest rate equal to the
Applicable Federal Rate as determined in accordance with Section 1274(d) of the
Internal Revenue Code of 1986, as amended and the regulations promulgated
thereunder, or (iii) such other treatment as to which the Holder of such Allowed
Tax Claim shall have agreed in writing; provided, however, that any Claim or
demand for payment of a penalty (other than a penalty of the type specified in
Section 507(a)(8)(G) of the Bankruptcy Code) shall be disallowed pursuant to
this Plan and the Holder of an Allowed Tax Claim shall not assess or attempt to
collect such penalty from the Debtors, their Estates, the Trust, Reorganized
Venture, or their property.
15
3.03 DIP FACILITY CLAIMS. On the Effective Date, in full satisfaction of
the DIP Facility Claim, the DIP Facility Lenders shall receive (i) cash in an
amount equal to the then outstanding amount of such DIP Facility Claim
(including all accrued and all unpaid interest, fees and expenses) plus (ii) a
comprehensive release of claims from the Debtors and in favor of each DIP
Facility Lender.
3.04 U.S. TRUSTEE FEES. The United States Trustee's quarterly fees shall
be paid in full without prior approval pursuant to 28 U.S.C. Section 1930 on or
before the Effective Date. All fees payable pursuant to 28 U.S.C.Section 1930
will be paid by each of the Reorganized Debtors in accordance therewith until
the closing of its respective Case pursuant to Section 350(a) of the Bankruptcy
Code.
ARTICLE 4
TREATMENT OF CLASSES THAT ARE UNIMPAIRED UNDER THE PLAN
4.01 CLASSES THAT ARE UNIMPAIRED. Classes 1 and 4 are Unimpaired.
Therefore, pursuant to Section 1126(f) of the Bankruptcy Code, the Holders of
Allowed Claims in such Classes are conclusively presumed to have accepted the
Plan. Nothing herein shall be deemed to accelerate any Debtor's obligation to
make payment on account of any Claim in a Class which is Unimpaired under the
Plan or affect the timing of payment under applicable non-bankruptcy law.
Additionally, the Debtors shall retain all rights to dispute or challenge any
Claim asserted hereunder which shall constitute a Claim in a Class that is
Unimpaired under the Plan.
4.02 CLASS 1 - PRIORITY CLAIMS. Unless the Holder of an Allowed Priority
Claim and the Debtors agree to a different treatment, each Holder of an Allowed
Priority Claim shall receive, in full satisfaction of such Allowed Claim, cash
equal to the amount of such Allowed Claim on the latest of (i) the Effective
Date, (ii) the date that is 10 days after the Allowance Date of such Claim, and
(iii) the date when such Allowed Claim becomes due and payable according to its
terms and conditions.
4.03 CLASS 4 - OTHER SECURED CLAIMS. Unless the Holder of an Allowed Other
Secured Claim and the Debtors agrees to a different treatment, either (a) the
legal, equitable, and contractual rights of Holders of Other Secured Claims
shall be reinstated on the Effective Date, or (b) the Debtor shall (i) cure any
pre-petition default (other than defaults of the kind specified in Section
365(b)(2) of the Bankruptcy Code), (ii) reinstate the maturity of such Other
Secured Claim, (iii) compensate the Holder of an Allowed Other Secured Claim for
any damage satisfying Section 1124(2)(c) of the Bankruptcy Code, and (iv) not
otherwise alter the legal, equitable or contractual rights to which such Other
Secured Claim entitles the Holder. The Debtors' failure to object to such Other
Secured Claims in the Case shall be without prejudice to the Debtors' right to
contest or otherwise defend against such Claims in the Bankruptcy Court or other
appropriate non-bankruptcy forum (at the option of the Debtors) when and if such
Claims are sought to be enforced by the Holder of the Other Secured Claim. All
pre-Petition Date Liens on property of the Debtors held by or on behalf of the
Holder of Other Secured Claims with respect to such Claims shall survive the
Effective Date and continue in accordance with the contractual terms of the
underlying agreements with such Holders until, as to each such Holder, the
Allowed Claims of such Holder of an Other Secured Claim are paid in full.
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ARTICLE 5
TREATMENT OF CLASSES THAT ARE IMPAIRED UNDER THE PLAN
5.01 IMPAIRED CLASSES. Classes 2, 3, 5, 6, 7, and 8 are Impaired. Holders
of Allowed Claims in Classes 2, 3, 5, 6 and 7 are allowed to vote as a Class to
accept or reject the Plan. Holders of Class 8 Equity Interests are deemed to
have rejected the Plan pursuant to Section 1126(g) of the Bankruptcy Code.
5.02 ACCEPTANCE BY AN IMPAIRED CLASS. In accordance with Section 1126(c)
of the Bankruptcy Code, and except as provided in Section 1126(e) of the
Bankruptcy Code, an Impaired Class of Claims shall have accepted the Plan if the
Plan is accepted by the Holders of at least two-thirds (2/3) in dollar amount
and more than one-half (1/2) in number of the Allowed Claims of such Class that
have timely and properly voted to accept or reject the Plan.
5.03 CLASS 2 - BANK PRE-PETITION PRIORITY CLAIMS. The Bank Pre-Petition
Priority Claims, including all accrued and all unpaid interest, fees and
expenses thereon, will be deemed to be Allowed Claims and, in full satisfaction
of such Claims, will be paid in full in cash on the Effective Date.
5.04 CLASS 3 - BANK CLAIMS. The Bank Claims shall be Allowed in an amount
equal to the sum of (i) the principal amount of the Bank Claims as of the
Petition Date, plus all unpaid interest and fees accrued through the Petition
Date, plus (ii) all interest and fees (if any) to which the Pre-Petition Lenders
are entitled under Section 506(b) of the Bankruptcy Code. On the Effective Date,
in full satisfaction of all of the obligations of the Debtors and the
Transferred Winget Entities in respect of the Bank Claims (including all Bank
Secured Claims and all Bank Adequate Protection Claims) and the Guaranties, the
Disbursing Agent shall distribute to the Pre-Petition Agent (for the benefit of
the Pre-Petition Lenders) and without further notice, application or hearing,
(a) cash in an amount equal to all interest accrued on the Bank Claims through
the Effective Date plus all unreimbursed fees and expenses incurred by the
Pre-Petition Agent through the Effective Date (regardless of whether such
interest and fees are allowed, or allowable, pursuant to Section 506(b) of the
Bankruptcy Code), (b) cash in an amount equal to 0.5% of the face amount of the
Preferred Membership Interests and the aggregate principal amount of the Bank
Senior Notes and the Bank Junior Notes, (c) the Bank Senior Notes, (d) the Bank
Junior Notes, and (e) the Preferred Membership Interests. In addition, on the
Effective Date: (1) the Pre-Petition Lenders shall be released from any and all
claims held by the Debtors, (2) letters of credit outstanding prior to the
Petition Date shall be cancelled and/or assumed and deemed issued under the Exit
Financing Facility, (3) all pre-petition liens on property of the Debtors held
by or on behalf of the Pre-Petition Lenders shall survive the Effective Date and
shall secure the obligations evidenced by the Bank Senior Notes and the Bank
Junior Notes, but such liens shall be subordinate in priority to the liens
granted to secure payment of the Exit Financing Facility and shall be subject to
the Subordination Agreement, (4) all Guaranties executed by the Debtors (and
their direct and indirect subsidiaries) in favor of the Pre-Petition Lenders
shall be replaced by the Guaranties executed in connection with the Restructured
Credit Agreement, and (5) the obligations evidenced by the Bank Senior Notes and
the Bank Junior Notes shall further be secured by the liens more specifically
described in the Restructured Credit Agreement. The Pre-Petition Lenders shall
be entitled to retain all payments made to the Pre-Petition Lenders prior to the
Effective Date. Guaranties executed by the Transferred Winget
17
Entities, together with the Liens and security interests granted by the
Transferred Winget Entities to secure repayment of such Guaranty obligations,
shall be replaced by the Liens, Guaranties and other rights granted to the
Pre-Petition Lenders under the Restructured Credit Agreement and the ancillary
documents executed in connection therewith. Guaranties executed by the Retained
Entities and Winget in favor of the Pre-Petition Lenders, together with the
Liens and security interests granted by the Retained Entities and Winget to
secure repayment of such Guaranty obligations, shall be released and discharged
upon the Effective Date.
5.05 CLASS 5 - GENERAL UNSECURED CLAIMS. Each Holder of an Allowed Class 5
Claim shall be entitled to receive, in full satisfaction of such Claim, its
respective Pro Rata distribution of Trust Assets from the Creditors' Trust
(subject to any contractual subordination provisions, including the
subordination provisions referenced in Section 8.14 of the Plan). The Trust
Assets includes the Creditors' Warrant, which will be valued as follows:
(a) Each Allowed Claim in Class 5 shall be entitled to receive its
Pro Rata share of the Common Membership Interests in Venture Delaware
represented by the following formula (the "Warrant Valuation Formula"):
(i) Numerator:
(A) the sum of (I) Value of Debtors, plus (II) Value of
Venture B Assets, to the extent that such sum exceeds the
aggregate amount of Allowed Claims in Classes 2 and 3 and
other Claims which would have priority over Class 5 Claims. In
the event the sum is less than zero, the sum shall be deemed
to be zero.
Plus:
(B) Value of Extinguished Actions.
(ii) Denominator: Value of Reorganized Venture
(b) WARRANT VALUATION PROCEDURES. On or before the hearing on the
Disclosure Statement, the Debtors shall file a procedures motion with the
Bankruptcy Court describing the procedures by which the Bankruptcy Court
shall determine, as necessary, the Value of the Extinguished Actions,
Value of the Venture B Assets, Value of Debtors and Value of Reorganized
Venture (the "Warrant Valuation Procedures").
5.06 CLASS 6 - VENDOR SUPPORT CLAIMS. Each Holder of an Allowed Class 5
Claim who (i) provided goods or services to the Debtors prior to the Petition
Date, (ii) elects, on its ballot, to agree to a Vendor Support Agreement and
(iii) executes and delivers a Vendor Support Agreement, shall receive, in lieu
of the treatment such Claim would otherwise receive as an Allowed General
Unsecured Claim, in full satisfaction of such Claim, cash in an amount equal to
50% of its Allowed General Unsecured Claim, which shall be paid in ten (10)
monthly installments equal to 5% of such Allowed Claim, beginning on the first
Business Day of the 4th full month following the month in which the Effective
Date occurs and continuing on the first Business Day of each month thereafter
until such Allowed Claim is paid 50% of the Allowed
18
General Unsecured Claim. In the event, however, that the Bankruptcy Court
concludes that the foregoing treatment renders the Plan unfairly discriminatory
in relation to other non-accepting classes of unsecured creditors (if any), then
Holders of the Vendor Support Claims shall be deemed to be included in (and to
receive the treatment prescribed for) Class 5 General Unsecured Claims and their
vote in Class 6 shall not count. In addition to their votes in Class 6, Holders
of Vendor Support Claims are entitled to vote upon the treatment prescribed for
Class 5 General Unsecured Claims and such votes (i) shall be counted in the
event that the Class 6 treatment is determined to have rendered the Plan
unfairly discriminatory, and (ii) shall not be counted to the extent the Class 6
treatment is approved.
5.07 CLASS 7 - UNSECURED CONVENIENCE CLAIMS. All Allowed Unsecured
Convenience Claims shall be paid not later than 120 days after the Effective
Date, in full satisfaction of such Claims, cash equal to 75% of the Allowed
Claims.
5.08 CLASS 8 - EQUITY INTERESTS. On the Effective Date, all of the Class 8
Equity Interests shall be cancelled and shall be deemed to have rejected the
Plan.
5.09 INTERCOMPANY CLAIMS. All Intercompany Claims will, in the sole
discretion of the applicable Debtor or Venture Delaware, (a) be preserved and
reinstated, (b) be released, waived and discharged as of the Effective Date, or
(c) be contributed to the capital of the obligee corporation.
5.10 NON-CONSENSUAL CONFIRMATION. In the event that any of Classes 5, 6 or
7 fail to accept the Plan, the Debtors reserve the right (i) to modify the Plan
in accordance with Article 14 of the Plan and the Contribution Agreement, and
(ii) to request that the Bankruptcy Court confirm the Plan in accordance with
Section 1129(b) of the Bankruptcy Code notwithstanding such lack of acceptance
by finding that the Plan provides fair and equitable treatment to any impaired
Class of Claims voting to reject the Plan.
ARTICLE 6
MEANS FOR IMPLEMENTATION OF THE PLAN
6.01 VENTURE DELAWARE FORMATION; CONTRIBUTION OF TRANSFERRED WINGET
ENTITIES. On or prior to the Effective Date, Venture Delaware will be organized
as a new Delaware limited liability company, the Operating Agreement will be
executed and Venture Delaware will become the parent entity of Venture. Subject
to and in accordance with the terms and conditions of the Contribution
Agreement, the Transferred Winget Entities will be contributed to Venture
Delaware and the other transactions contemplated by the Contribution Agreement
will occur.
6.02 AMENDED OPERATING AGREEMENT. On the Effective Date, the operating
agreement of Venture shall be amended pursuant to Exhibit A hereto which is by
reference incorporated herein.
6.03 AGREEMENTS ON THE EFFECTIVE DATE. In order to implement the Plan, the
Debtors anticipate that the following agreements, among others (each of which
shall be a Reorganization Document), will be executed or implemented, on or
prior to the Effective Date:
(a) the Exit Financing Facility;
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(b) the Restructured Credit Agreement;
(c) the Bank Senior Notes;
(d) the Bank Junior Notes;
(e) the Trust Agreement;
(f) the Contribution Agreement;
(g) the Creditors' Warrant;
(h) the Preferred Membership Interests;
(i) the Common Membership Interests;
(j) the New Leases;
(k) the Employment Agreements;
(l) the Subordination Agreement;
(m) the Certificate of Formation;
(n) the Amended Operating Agreement;
(o) the Operating Agreement;
(p) the Registration Rights Agreement; and
(q) all other documents necessary to effectuate the Plan.
All of the above documents shall be (a) filed by the Debtors with the
Bankruptcy Court not later than twenty (20) days before the commencement of the
Confirmation Hearing unless otherwise specified herein, and (b) reasonably
satisfactory to Winget, the Steering Committee and the Debtors.
6.04 CANCELLATION OF AGREEMENTS. On the Effective Date, except as
specifically provided in this Plan, (a) any note, bond, indenture, or other
instrument or document evidencing or creating any indebtedness or obligation of
the Debtors and all options, warrants and rights (whether fixed or contingent,
matured or unmatured, disputed or undisputed, contractual, legal, equitable or
otherwise) to acquire any of the foregoing, except such notes or other
instruments evidencing indebtedness or obligations of the Debtors that are
reinstated under the Plan, shall be cancelled, and (b) the obligations of or
Claims against the Debtors under, relating, or pertaining to any agreements,
indenture, or similar document governing any other note, bond, indenture, or
other instrument or document evidencing or creating any indebtedness or
obligation of the Debtors, except such notes or other instruments evidencing
indebtedness or obligations of the Debtors that are reinstated under the Plan,
as the case may be, shall be released and discharged.
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6.05 CORPORATE ACTION.
(a) The Operating Agreement shall, among other things: (i) authorize
the issuance of Common Membership Interests, and of Preferred Membership
Interests, (ii) prohibit the issuance of nonvoting equity securities, as
required by Section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of such certificate of incorporation and bylaws as permitted by
applicable law and (iii) effectuate the provisions of the Plan, in each
case without any further action by the members, managers, stockholders or
directors of the Debtors or Venture Delaware.
(b) On the Effective Date, the execution and delivery of each
Reorganization Document and any other document necessary to effectuate the
transactions contemplated herein and therein, and all other actions
contemplated by the Plan, the Reorganization Documents, or such other
documents shall be authorized and approved in all respects (subject to the
provisions of the Plan). All matters provided for in the Plan involving
the corporate structure of the Debtors or Venture Delaware, and any
corporate action required by the Debtors or Venture Delaware in connection
with the Plan, shall be deemed to have occurred and shall be in effect,
without any requirement of further action by the security holders or
directors of the Debtors or Venture Delaware. On the Effective Date, the
appropriate officers of Venture Delaware and members of the Boards of
Reorganized Venture are authorized and directed to issue, execute and
deliver the agreements, documents, securities and instruments contemplated
by the Plan in the name of, and on behalf of, Reorganized Venture.
6.06 ISSUANCE OF COMMON MEMBERSHIP INTERESTS, PREFERRED MEMBERSHIP
INTERESTS, CREDITORS' WARRANT AND OPTION A.
(a) On the Effective Date, pursuant to the Contribution Agreement
and the Plan: (i) Winget shall receive in exchange for his contribution of
the Transferred Winget Entities pursuant to the Contribution Agreement,
100% of the Common Membership Interests; (ii) Holders of Claims in Class 3
shall receive 100% of the Preferred Membership Interests; and (iii) the
Trustee of the Creditor's Trust will hold the Creditors' Warrant.
(b) Winget will have an option during the Option A Period to cause
Venture Delaware to redeem all outstanding Preferred Membership Interests
for the Option A Exercise Price as more specifically set forth in the
Operating Agreement.
6.07 BOARD. Prior to the Conversion Date, the Board of Venture Delaware
shall consist of seven (7) members. The Chief Executive Officer will serve as a
director. Holders of Common Membership Interests will be entitled to designate
three (3) directors, two (2) of whom will be Independent Directors and one (1)
of whom shall be Winget or his designee, who will act as Chairman of the Board.
Holders of the Preferred Membership Interests will be entitled to designate
three (3) directors, each of whom will be Independent Directors. At least three
(3) Business Days prior to the deadline for filing objections to confirmation of
the Plan, the Steering Committee and Winget shall file certificates with the
Bankruptcy Court identifying those individuals proposed to serve as Board
members, or the means by which such individuals will be
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selected. Each such director shall serve from and after the Effective Date
pursuant to the terms of the Certificate of Formation, the Operating Agreement
and applicable law. In the event the Preferred Membership Interests have not
been redeemed by the Conversion Date, the Holders of the Preferred Membership
Interests shall be entitled immediately and until such time as the Preferred
Membership Interests are redeemed in full, including accrued and unpaid
dividends thereon, to (i) achieve voting control of the Board for all purposes
by replacing directors, electing additional directors and/or taking such other
steps as shall be satisfactory to the Steering Committee, and (ii) achieve
voting control of the voting equity interests of Venture Delaware for all
purposes in a manner satisfactory to the Steering Committee.
6.08 OFFICERS. Venture Delaware's Senior Management (i) shall be
acceptable to the Steering Committee and Winget, and (ii) shall become employed
by Venture Delaware no later than the Effective Date pursuant to employment
agreements, including the Employment Agreements that are reasonably acceptable
to the Exit Lenders, the Steering Committee and Winget. The other officers of
the Debtors immediately prior to the Effective Date shall serve as the officers
of the Reorganized Venture until their successors are duly appointed in
accordance with applicable law. Each officer shall serve from and after the
Effective Date pursuant to the terms of the Certificate of Formation, the
Operating Agreement and applicable law.
6.09 CONTINUATION OF WORKERS' COMPENSATION PROGRAMS. Upon the Effective
Date of the Plan, the Reorganized Debtors shall continue the Michigan Workers'
Compensation Program upon approval by the Michigan Bureau of Workers &
Unemployment Compensation. Nothing in the Plan shall be deemed to discharge,
release, or relieve the Debtors or Reorganized Debtors from any current or
future liability with respect to any of its/their obligations under the Michigan
Workers' Compensation Program. The Reorganized Debtors shall be responsible for
all valid claims for benefits and liabilities under the Michigan Workers'
Compensation Program regardless of when the applicable injuries occurred. All
obligations under the Michigan Workers' Compensation Program shall be paid in
accordance with the terms and conditions of Michigan Workers' Compensation
Program and the Michigan Workers' Disability Compensation Act and all other
applicable laws.
6.10 POST-EFFECTIVE DATE FINANCING. Reorganized Venture expects to enter
into the Exit Financing Facility in order to obtain the funds necessary to: (a)
repay the DIP Facility Claims; (b) make other payments required to be made on
the Effective Date; and (c) conduct their post-reorganization operations.
Documents evidencing the Exit Financing Facility, or commitment letters with
respect thereto, shall be filed by the Debtors with the Bankruptcy Court three
(3) Business Days prior to the Confirmation Hearing Date. Notice of any material
modification to the Exit Financing Facility or the commitment letters with
respect thereto after its filing with the Bankruptcy Court shall be provided to
the Pre-Petition Agent, the Post-Petition Agent, Winget and the Creditors'
Committee not less than three (3) Business Days prior to the Effective Date and
shall require consent thereto as provided in the Contribution Agreement. In the
Confirmation Order, the Bankruptcy Court shall approve the Exit Financing
Facility in substantially the form filed with the Bankruptcy Court and authorize
the Reorganized Debtors to execute the same together with such other documents
as the Exit Lenders may reasonably require in order to effectuate the treatment
afforded to such parties under the Exit Financing Facility.
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6.11 PRESERVATION OF CAUSES OF ACTION. In accordance with Section
1123(b)(3) of the Bankruptcy Code, and except as otherwise provided in the Plan
and/or the Confirmation Order, the Reorganized Debtors shall retain and may (but
are not required to) enforce all Retained Actions, but not Winget Actions or
Avoidance Actions (which shall be transferred to the Creditors' Trust and
preserved for its benefit pursuant to the Plan), and other similar claims
arising under applicable state laws, including, without limitation, fraudulent
transfer claims, if any, and all other Causes of Action of a trustee and
debtor-in possession under the Bankruptcy Code. The Debtors or the Reorganized
Debtors, in their sole discretion, will determine whether to bring, settle,
release, compromise, or enforce any rights (or decline to do any of the
foregoing) with respect to the Retained Actions, other than the Avoidance
Actions and the Winget Actions. The Reorganized Debtors or any successor may
pursue such litigation claims in accordance with the best interests of the
Reorganized Debtors or any successors holding such rights of action. The failure
of the Debtors to specifically list any Claim, Causes of Action, right of
action, suit or proceeding in the Schedules or on Exhibits B and C of the Plan
does not, and will not be deemed to, constitute a waiver or release by the
Debtors of such Claim, Causes of Action, right of action, suit or proceedings,
and the Reorganized Debtors will retain the right to pursue such Claims, Causes
of Action, rights of action, suits or proceedings in their sole discretion and,
therefore, no preclusion doctrine, collateral estoppel, issue preclusion, claim
preclusion, estoppel (judicial, equitable or otherwise) or laches will apply to
such claim, right of action, suit or proceeding upon or after the confirmation
or consummation of the Plan. Notwithstanding the foregoing, the Extinguished
Actions are extinguished as of the Effective Date other than for purposes of
determining the Value of Extinguished Actions in the Creditors' Warrant.
6.12 ADMINISTRATION OF THE PLAN.
(a) After the Effective Date, Reorganized Venture shall perform
those responsibilities, duties, and obligations set forth in this Plan,
including, without limitation, to prosecute any litigation pertaining
thereto and to oversee and govern the continuing affairs and operations of
Reorganized Venture on a going forward basis.
(b) After the Effective Date, Reorganized Venture may retain such
management, law firms, accounting firms, experts, advisors, agents,
consultants, investigators, appraisers, auctioneers, or other
professionals as it may deem necessary, including, without limitation, the
Disbursing Agent, to aid it in the performance of its responsibilities
pursuant to the terms of the Plan. It shall not be a requirement that any
such parties retained by Reorganized Venture be a "disinterested person"
(as such term is defined in Section 101(14)) of the Bankruptcy Code, and
such retained parties may include Professionals or other Persons who had
previously been active in this Case on behalf of the Debtors, any Creditor
or other party in interest. The Debtors may pay these Professionals
without Bankruptcy Court approval of any of their post-Effective Date fees
and expenses.
(c) The Boards and the management of Reorganized Venture shall
perform the duties and obligations imposed on them by the Plan with
reasonable diligence and care under the circumstances.
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(d) Reorganized Venture shall be responsible for filing any federal,
state, and local tax returns for the Debtors.
(e) To the extent the manner of performance is not specified,
Reorganized Venture will have the discretion to carry out and perform all
other obligations or duties imposed on them by the Plan or by law in any
manner its respective Board so chooses, as long as such performance is not
inconsistent with the intents and purposes of the Plan.
6.13 EMPLOYMENT AGREEMENTS. On or before the Effective Date, the
Employment Agreements shall be entered into by Venture Delaware and approved by
the Bankruptcy Court.
6.14 CONTRIBUTION AGREEMENT. On the Effective Date, the transactions under
the Contribution Agreement shall have closed in accordance with the terms
thereof.
6.15 SUBSTANTIVE CONSOLIDATION. On the Effective Date Estates shall be
substantively consolidated, but only for the purposes of (1) treatment of and
making distributions to Holders of Claims under the Plan, (2) voting under the
Plan, and (3) filing Claims. For such limited purposes, and provided that the
Pre-Petition Lenders have voted to accept the Plan, on the Effective Date, (a)
all obligations under guaranties of any Debtor of the payment, performance, or
collection of another Debtor with respect to any Class of Claims or Interests
shall be deemed satisfied in full by the treatment of such Class of Claims or
Interests in the Plan; (b) any obligation of any Debtor and all guaranties with
respect to any Class of Claims or Interests executed by one or more of the other
Debtors and any joint or several liability of any of the Debtors shall be
treated as a single obligation, and any obligation of two or more Debtors, and
all multiple impaired Claims against Debtors on account of such joint
obligations, shall be treated and Allowed only as a single Claim against the
consolidated Debtors; and (c) each Claim filed in the Case shall be deemed filed
against the consolidated Debtors and shall be deemed a Claim against and an
obligation of the consolidated Debtors. Except as set forth above, such
substantive consolidation will not (other than for purposes related to the Plan)
(a) affect the legal and corporate structures of the Debtors or Reorganized
Debtors, subject to the right of the Debtors or Reorganized Debtors to effect
the restructuring transactions contemplated by the Plan, and (b) except as
otherwise stated in the Plan, affect Intercompany Claims.
6.16 CONTINUATION OF BUSINESS. On and after the Effective Date,
Reorganized Venture shall continue to engage in the Debtors' business,
including, without limitation, performing under all purchase orders existing as
of the Effective Date. Reorganized Venture retains all claims, defenses,
counterclaims and offsets with respect to such purchase orders in existence as
of the Effective Date.
6.17 DISBANDING OF CREDITORS COMMITTEE. On the Effective Date, the
Creditors' Committee will be disbanded. Neither Reorganized Venture nor the
Creditors' Trust will be responsible for any fees or expenses of the Creditors'
Committee, or of its professionals and agents, incurred after the Effective Date
unless otherwise ordered by the Bankruptcy Court.
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ARTICLE 7
CREDITORS' TRUST
7.01 APPOINTMENT OF TRUSTEE. The Trustee for the Creditors' Trust shall be
appointed on the Effective Date. A notice shall be filed no later than the ten
(10) days prior to the Confirmation Hearing Date designating the Person who is
selected to serve as Trustee.
7.02 CREATION OF CREDITORS' TRUST. On the Effective Date, the Creditors'
Trust shall be established for the benefit of all Class 5 Creditors and become
effective without further order of the Bankruptcy Court. The Class 5 Claims
shall be satisfied by delivery of the Trust Assets to the Creditors' Trust. The
Bankruptcy Court shall retain jurisdiction for purposes of determining the value
of the Creditor's Warrant in accordance with Section 5.05 of the Plan.
7.03 TRANSFER OF TRUST ASSETS. On the Effective Date, the Trust Assets,
without further act or deed of the Trustee or the Bankruptcy Court, shall be
transferred from the Estates to the Creditors' Trust, free and clear of all
Liens, Claims and interests and shall become the corpus of the Creditors' Trust.
On the Effective Date, the Debtors are authorized to, and shall execute and
deliver such instruments and other documents as are necessary, appropriate or
deemed advisable by the Trustee to transfer title to the Trust Assets to the
Creditors' Trust.
7.04 AUTHORITY. The Trustee shall have full authority, subject to the
direction of the Oversight Committee, to take any steps necessary to administer
the Trust Agreement, including, without limitation, the duty and obligation to
liquidate the Trust Assets, make distributions to General Unsecured Creditors,
and settle any Winget Actions or Avoidance Actions. Upon such assignment, the
Trustee, on behalf of the Creditors' Trust, will assume and be responsible for
any responsibilities, duties and obligations of the Debtors with respect to the
subject matter of the assignments, and the Debtors and the Reorganized Debtors
will have no further rights or obligations with respect thereto.
7.05 INTERESTS IN CREDITORS' TRUST. Interests in the Creditors' Trust
shall be uncertificated and shall be non-transferable except by operation of
law. Holders of interests in the Creditors' Trust shall have no voting rights
with respect to such interests. The Creditors' Trust will have a term of three
(3) years from the Effective Date, without prejudice to the rights of the
Oversight Committee to extend such term conditioned upon the Creditors' Trust
not then becoming subject to the Exchange Act or changing its tax status. The
terms of the Trust Agreement may be amended by the Trustee or the Debtors to the
extent necessary to ensure that the Creditors' Trust will not become subject to
the Exchange Act.
7.06 EMPLOYMENT OF PROFESSIONALS. The Trustee may retain such law firms,
accounting firms, experts, advisors, consultants, investigators, appraisers,
auctioneers or other professionals as it may deem necessary to aid in the
performance of its responsibilities pursuant to the terms of this Plan
including, without limitation, the liquidation and distribution of Trust Assets.
7.07 TAX STATUS. For federal income tax purposes, it is intended that the
Creditors' Trust be classified as a liquidating trust under Department of
Treasury Regulations Section 301.7701-4 and that such trust is owned by its
beneficiaries. Accordingly, for federal income tax
25
purposes, it is intended that the beneficiaries be treated as if they had
received a distribution of an undivided interest in the Trust Assets and then
contributed such interests to the Creditors' Trust.
7.08 WINGET ACTIONS. Winget and the Oversight Committee shall negotiate in
good faith to resolve the Winget Actions for 90 days after the Effective Date.
If settlement is not reached, the Oversight Committee and Winget shall select a
mutually satisfactory arbitrator who shall recommend a resolution after
non-binding arbitration. In the event that the non-binding arbitration does not
result in agreement of the parties, the Trustee, upon direction from the
Oversight Committee, shall have the authority to pursue the Winget Actions as
the Trustee deems appropriate, and the Bankruptcy Court shall retain
jurisdiction to hear any such actions.
7.09 EXPENSES OF CREDITORS' TRUST; COMPENSATION AND REIMBURSEMENT OF
OVERSIGHT COMMITTEE. All costs and expenses associated with the administration
of the Creditors' Trust shall be the sole responsibility of, and paid by, the
Creditors' Trust. The Trustee shall receive, from the Creditors' Trust,
reasonable compensation for services rendered. The Trustee shall also be
reimbursed by the Creditors' Trust for all out-of-pocket expenses reasonably and
necessarily incurred in the performance of its duties hereunder and under the
Trust Agreement. The members of the Oversight Committee shall not be entitled to
receive compensation for their services, but they shall be reimbursed by the
Creditors' Trust for all out-of-pocket expenses reasonably incurred in the
performance of their duties hereunder and under the Trust Agreement. All
compensation and reimbursement shall be paid from Trust Assets.
7.10 COOPERATION; ACCESS. Reorganized Venture shall reasonably cooperate
with the Trustee in pursuing Avoidance Actions and Winget Actions and shall
afford reasonable access during normal business hours, upon reasonable notice,
to personnel and books and records of the Reorganized Debtors to representatives
of the Creditors' Trust to enable the Trustee to perform the Trustee's duties
under the Trust Agreement. Reorganized Venture shall not be required to incur
any expenses in connection with the Creditors' Trust absent reimbursement from
the Creditors' Trust. The Bankruptcy Court retains jurisdiction to determine the
reasonableness of a request of assistance and/or a related expenditure. Any
requests for assistance shall not interfere with Reorganized Venture's business
operations.
7.11 INDEMNIFICATION; EXCULPATION. The Trustee and each member of the
Oversight Committee shall be indemnified from the Trust Assets to the fullest
extent permitted by law against any liability, damage or expense arising out of
or resulting from or related to, any act taken or omitted, so long as such
liability, damage or expense does not result from willful fraud, willful
misconduct, bad faith or gross negligence. The Trustee, the members of the
Oversight Committee, and their attorneys, employees, accountants, consultants or
agents, shall (i) not have or incur any liability to any Person or entity for
any act or omission in connection with, or arising out of, the administration of
this Plan or the property to be distributed under this Plan, except if such act
or omission is determined by a Final Order to reflect bad faith or to constitute
willful misconduct or gross negligence, (ii) be entitled to rely upon the advice
of counsel with respect to their duties and responsibilities under this Plan,
and (iii) be fully protected in acting, or in refraining from acting, in
accordance with such advice; provided, however, nothing contained herein shall
relieve the Creditors' Trust from its duties and responsibilities to make the
payments required under this Plan.
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7.12 THE OVERSIGHT COMMITTEE.
(a) The Oversight Committee shall be appointed on the Effective
Date. On or before the date that is ten (10) days prior to the
Confirmation Hearing Date, a notice shall be filed with the Bankruptcy
Court identifying the members of the Oversight Committee. The Oversight
Committee may adopt such bylaws as it may deem appropriate. The Trustee
shall consult regularly with the Oversight Committee when carrying out the
purpose and intent of the Creditors' Trust.
(b) In the case of an inability or unwillingness of any member of
the Oversight Committee to serve, such member shall be replaced by
designation of the remaining members of the Oversight Committee. If any
position on the Oversight Committee remains vacant for more than thirty
(30) days, such vacancy shall be filled within fifteen (15) days
thereafter by the designation of the Trustee without the requirement of a
vote by the other members of the Oversight Committee.
(c) Upon the certification by the Trustee that all Trust Assets have
been distributed, abandoned or otherwise disposed of, the members of the
Oversight Committee shall resign their positions, whereupon they shall be
discharged from further duties and responsibilities.
(d) The Oversight Committee may, by majority vote, approve all
settlements of the Winget Actions and the Avoidance Actions which the
Trustee may propose, subject to Bankruptcy Court approval of such
settlements after notice and a hearing, provided, however, that the
Trustee may seek Bankruptcy Court approval of a settlement of a Winget
Action or Avoidance Action if the Oversight Committee fails to act on a
proposed settlement of such Claim within fifteen (15) days of receiving
notice of such proposed settlement by the Trustee.
(e) The Oversight Committee may, by majority vote, authorize the
Trustee to invest the Trust Assets in prudent investments other than those
described in Section 345 of the Bankruptcy Code.
(f) The Trustee may be removed in accordance with the Trust
Agreement
7.13 DISTRIBUTION OF TRUST ASSETS. The cash proceeds of Trust Assets shall
be used first to pay the expenses of the Trust, the Trustee and the Oversight
Committee and the costs and expenses of the Trustee and the Trustee's
professionals. Thereafter, the cash proceeds of the Trust Assets shall be
distributed to Holders of Claims in accordance with their interests in the
Creditors' Trust as set forth in this Plan at least annually beginning with the
second calendar quarter after the Effective Date. The Trustee shall not be
required to make any such annual distribution in the event that the aggregate
proceeds and income available for distribution to Holders of Claims is not
sufficient, in the Trustee's discretion (after consultation with the Oversight
Committee), to make a distribution at that time. The Trustee will make
continuing efforts to dispose of the Trust Assets, make timely distributions,
and not unduly prolong the duration of the Creditors' Trust.
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ARTICLE 8
PROVISIONS GOVERNING DISTRIBUTIONS
8.01 DISBURSEMENTS. The Disbursing Agent will make all distributions
required under this Plan except with respect to (i) the Creditor's Trust which
shall be made by the Trustee and (ii) the Claims of the Pre-Petition Lenders,
which distributions shall be made by the Disbursing Agent to the Pre-Petition
Agent. Distributions shall be made at the times provided herein or as otherwise
ordered by the Bankruptcy Court. Notwithstanding anything herein to the
contrary, the Trustee shall not distribute the Creditors' Warrant or any Common
Membership Interests obtained upon exercise of the Creditors' Warrant absent
consent of the Venture Delaware, Winget and the holders of the Preferred
Membership Interests.
8.02 NO INTEREST ON CLAIMS OR INTERESTS. Unless otherwise specifically
provided for in this Plan, Confirmation Order or the DIP Facility, post-Petition
Date interest shall not accrue or be paid on Claims or Interests, and no Holder
of any Claim or Interest shall be entitled to interest accruing on or after the
Petition Date.
8.03 CLAIMS ADMINISTRATION RESPONSIBILITY.
(a) REORGANIZED DEBTORS. The Reorganized Debtors will retain
responsibility for administering, disputing, objecting to, compromising or
otherwise resolving, subject to Bankruptcy Court approval, with respect to
all Claims against the Debtor.
(b) FILING OF OBJECTIONS. Unless otherwise extended by the
Bankruptcy Court, any objections to Claims shall be served and filed on or
before the Claims Objection Deadline.
8.04 DELIVERY OF DISTRIBUTIONS. Distributions to Holders of Allowed Claims
shall be made by the Disbursing Agent (a) at the addresses set forth on the
proofs of claim filed by such Holders (or at the last known addresses of such
Holders if no proof of claim is filed or if the Debtors have been notified in
writing of a change of address), (b) at the addresses set forth in any written
notices of address changes delivered to the Disbursing Agent after the date of
any related proof of claim, or (c) at the addresses reflected in the Schedules
if no proof of claim has been filed and the Disbursing Agent has not received a
written notice of a change of address. If any Creditor's distribution is
returned as undeliverable, no further distribution to such Creditor shall be
made unless and until the Disbursing Agent is notified of such Creditor's
then-current address, at which time all missed distributions shall be made to
such Creditor without interest. Amounts in respect of undeliverable
distributions shall be returned to the Reorganized Debtors or the Creditors'
Trust, as applicable, until such distributions are claimed. All funds or other
undeliverable distributions returned to the Reorganized Debtors or the
Creditors' Trust, as applicable, and not claimed within six (6) months of return
shall be distributed to the other Creditors of the Class of which the Creditor
to whom the distribution was originally made is a member in accordance with the
provisions of the Plan applicable to distributions to that Class. Upon such
reversion, the Claim of any Creditor or their successors with respect to such
property shall be discharged and forever barred notwithstanding any federal or
state escheat laws to the
28
contrary. Nothing contained in the Plan shall require the Disbursing Agent or
the Trustee to attempt to locate any Creditor holding an Allowed Claim.
8.05 PROCEDURES FOR TREATING AND RESOLVING DISPUTED CLAIMS.
(a) NO DISTRIBUTION PENDING ALLOWANCE. No distributions will be made
with respect to all or any portion of a Disputed Claim unless and until
all objections to such Disputed Claim have been settled or withdrawn or
have been determined by a Final Order, and the Disputed Claim has become
an Allowed Claim.
(b) DISTRIBUTION RESERVE. The Disbursing Agent, after consultation
with Reorganized Venture, or the Trustee, after consultation with the
Oversight Committee, will create a reserve from the property to be
distributed by them under the Plan.
(c) DISTRIBUTION AFTER ALLOWANCE. Payments and distributions from
any reserve created under Section 8.05(b) of the Plan to a Creditor on
account of a Disputed Claim, to the extent that it ultimately becomes an
Allowed Claim, will be made in accordance with provisions of this Plan
that govern distributions to such Creditor.
8.06 MANNER OF CASH PAYMENTS UNDER THE PLAN. Any cash payment to be made
by the Disbursing Agent or the Trustee pursuant to the Plan may be made by a
check or wire transfer on a United States bank selected by the Disbursing Agent
or the Trustee; provided, however, that payments made to foreign Holders of
Allowed Claims may be paid, at the option of the Disbursing Agent or the
Trustee, in such funds and by such means as are necessary or customary in a
particular foreign jurisdiction.
8.07 DELIVERY OF OLD SUBORDINATED NOTES AND OLD SENIOR NOTES. Prior to
being entitled to receive any distribution provided for under the Plan, the
Indenture Trustee or the Holders of Old Subordinated Notes or Old Senior Notes
shall deliver to the Trustee the certificates or other instruments evidencing
such Old Senior Notes and Old Subordinated Notes.
8.08 DIRECTION TO PARTIES. From and after the Effective Date, the
Disbursing Agent, the Trustee, Reorganized Venture may apply to the Bankruptcy
Court for an order directing any necessary party to execute or deliver or to
join in the execution or delivery of any instrument required to effect a
transfer of property dealt with by the Plan, and to perform any other act,
including the satisfaction of any Lien, that is necessary for the consummation
of the Plan, pursuant to Section 1142(b) of the Bankruptcy Code.
8.09 SETOFFS. The Reorganized Debtors, the Disbursing Agent or the Trustee
may, pursuant to Section 553 of the Bankruptcy Code, set off against any Allowed
Claim and the distributions to be made pursuant to the Plan on account of such
Claim, all claims, rights, and causes of action of any nature that any such
Debtor may hold against the Holder of such Allowed Claim that are not otherwise
waived, released, or compromised in accordance with the Plan; provided, however,
that neither the failure to effect such a setoff nor the allowance of any Claim
hereunder shall constitute a waiver or release by such Debtor of any such
claims, rights, and causes of action that the Debtor may possess against such
Holder.
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8.10 EXEMPTION FROM CERTAIN TRANSFER TAXES. Pursuant to Section 1146(c) of
the Bankruptcy Code, any transfers from the Debtors to Reorganized Venture, the
Creditors' Trust or any other Person or entity pursuant to this Plan in the
United States shall not be subject to any document recording tax, stamp tax,
conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer
tax, mortgage recording tax or other similar tax or governmental assessment. The
Confirmation Order shall direct the appropriate state or local governmental
officials or agents to forego the collection of any such tax or governmental
assessment and to accept for filing and recordation any of the foregoing
instruments or other documents without the payment of any such tax or
governmental assessment.
8.11 WITHHOLDING AND REPORTING REQUIREMENTS. In connection with this Plan
and all distributions hereunder, the Disbursing Agent and the Trustee shall
comply with all applicable tax withholding and reporting requirements imposed by
any federal, state, provincial, local or foreign taxing authority, and all
distributions hereunder shall be subject to any such withholding and reporting
requirements. The Disbursing Agent and the Trustee shall be authorized to take
any and all actions that may be necessary or appropriate to comply with such
withholding and reporting requirements. Notwithstanding any other provision of
this Plan, each Holder of an Allowed Claim or Interest that is to receive a
distribution pursuant to this Plan shall have sole and exclusive responsibility
for the satisfaction and payment of any tax obligations imposed by any
governmental unit, including income, withholding and other tax obligations, on
account of such distribution.
8.12 NO FRACTIONAL DISTRIBUTIONS. No fractional shares or amounts of
Common Membership Interests or Preferred Membership Interests will be issued or
distributed under the Plan. Each Person entitled to receive Common Membership
Interests or Preferred Membership Interests will receive the total whole number
of Common Membership Interests or Preferred Membership Interests to which such
Person is entitled. Whenever any distributions to a Person would otherwise call
for distribution of a fraction of a Common Membership Interests or Preferred
Membership Interests, the actual distribution of such security will be rounded
to the next higher or lower whole number with fractions of less than or equal to
one-half (1/2) being rounded to the next lower whole number. No consideration
will be provided in lieu of fractional new securities that are rounded down. The
total number of new securities to be distributed to each Class of Claims will be
adjusted as necessary to account for the rounding provided herein. Any other
provision of the Plan notwithstanding, neither the Debtors, the Disbursing Agent
nor the Servicer will be required to make distributions or payments of fractions
of dollars. Whenever any payment of a fraction of one dollar under the Plan
would otherwise be called for, the actual payment made will reflect a rounding
of such fraction to the nearest whole dollar (up or down), with one-half (1/2)
dollars being rounded down.
8.13 CLOSING OF THE CASE. As soon as practicable after the Effective Date,
the Bankruptcy Court shall close all of the Cases, except that the case
captioned In re Venture Holdings Company, LLC., bearing case number 03-48939,
shall remain open. After the Estate has been fully administered, the Bankruptcy
Court will close the Chapter 11 Case in accordance with Section 350 of the
Bankruptcy Code. Any monies remaining in the Estate at the time the Chapter 11
Case is closed shall revert to the Reorganized Debtors.
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8.14 CONTINUED ENFORCEMENT OF SUBORDINATION PROVISIONS. The Trustee shall
comply with any request by the Indenture Trustee to enforce the subordination
provisions under the Old Subordinated Notes for the benefit of Holders of the
Old Senior Notes by remitting distributions otherwise payable to Holders of the
Old Junior Notes, Pro Rata, to Holders of Old Senior Notes.
ARTICLE 9
EXECUTORY CONTRACTS
9.01 ASSUMPTION OF EXECUTORY CONTRACTS. As of the Confirmation Date, but
subject to the occurrence of the Effective Date, all Executory Contracts
(including all insurance contracts providing coverage to the Debtors' directors,
officers, shareholders, agents, employees, representatives, and others for
conduct in connection with the Debtors (to the extent such policies are
Executory Contracts)) will be deemed assumed by the relevant Debtor and retained
by Venture Delaware or such Debtor, as appropriate, in accordance with the
provisions and requirements of Sections 365 and 1123 of the Bankruptcy Code,
except those Executory Contracts that (i) have been rejected by order of the
Bankruptcy Court, (ii) are the subject of a motion to reject pending on the
Confirmation Date which is later granted by the Bankruptcy Court, or (iii) which
are identified on Exhibit I attached hereto, which shall be deemed rejected as
of the Confirmation Date. Entry of the Confirmation Order by the Bankruptcy
Court shall constitute approval of such assumptions pursuant to Sections 365(a)
and 1123 of the Bankruptcy Code, subject to the occurrence of the Effective
Date. Each Executory Contract assumed pursuant to this Article 9 shall revest in
and be fully enforceable by Venture Delaware or the relevant Reorganized Debtor,
as appropriate, in accordance with its terms, except as may be modified by (i)
the provisions of the Plan, (ii) any order of the Bankruptcy Court approving and
authorizing its assumption, (iii) applicable federal law, or (iv) agreement of
the parties to such Executory Contracts.
9.02 CURE OF DEFAULTS OF ASSUMED EXECUTORY CONTRACTS. Any monetary amounts
by which each Executory Contract to be assumed pursuant to the Plan is in
default shall be satisfied, pursuant to Section 365(b)(1) of the Bankruptcy
Code, by the relevant Debtor, by payment of the default amount (as such amount
has been agreed upon by Venture Delaware, or in the event of a dispute regarding
such default amount, as such amount has been determined by a Final Order of the
Bankruptcy Court) in cash on or before thirty (30) days after the Effective Date
or on such other terms as the parties to such Executory Contracts may otherwise
agree. Notwithstanding the foregoing, in the event of a dispute regarding: (1)
the amount of any cure payments, (2) the ability of Venture Delaware, the
relevant Debtor or any assignee to provide "adequate assurance of future
performance" (within the meaning of Section 365 of the Bankruptcy Code) under
the contract or lease to be assumed, or (3) any other matter pertaining to
assumption, the cure payments required by Section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute
and approving the assumption. The relevant Debtor shall provide notice to any
non-Debtor party to any Executory Contract to be assumed pursuant to the Plan of
the amount of any default amount owed under the applicable Executory Contract on
or before 30 days after the date of entry of the Confirmation Order. Any
non-Debtor party that fails to respond or object within fifteen (15) days after
the date of such notice of proposed default amount owed shall be deemed to have
consented to such proposed amount.
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9.03 REJECTION CLAIMS. Each Person who is a party to an Executory Contract
rejected pursuant to this Article 9 shall be entitled to file, not later than
thirty (30) days after the Confirmation Date, a Proof of Claim for alleged
Rejection Claims. If no such Proof of Claim for Rejection Claims is timely
filed, any such Claim shall be forever barred and shall not be enforceable
against Reorganized Venture, the Trustee, any Debtor or the Estates. The
Bankruptcy Court shall retain jurisdiction to determine any objections to
Rejection Claims.
9.04 CLASSIFICATION OF REJECTION CLAIMS. Except as otherwise provided
under the Plan, Rejection Claims against any Debtor shall be treated as Allowed
General Unsecured Claims against such Debtor to the extent they are treated as
Allowed Claims, and shall be satisfied in accordance with the Plan and the
Confirmation Order.
ARTICLE 10
CONDITIONS PRECEDENT TO CONFIRMATION AND EFFECTIVENESS
10.01 CONDITIONS PRECEDENT TO CONFIRMATION. The following are conditions
precedent to the Confirmation of the Plan:
(a) The Bankruptcy Court shall have approved Disclosure Statement.
(b) The Confirmation Order shall be in form and substance as
provided for in the Contribution Agreement.
(c) The Contribution Agreement shall be in full force and effect
without modification except as permitted thereby.
10.02 CONDITIONS PRECEDENT TO EFFECTIVENESS. Notwithstanding any other
provision of the Plan or the Confirmation Order, the Effective Date of the Plan
shall not occur, and the Plan shall not be binding on any party, unless and
until each of the following conditions has been satisfied or waived, in
accordance with Section 10.04, in writing by the Debtors:
(a) The Confirmation Order shall have been entered and shall not
have been vacated or stayed.
(b) The closing and an initial funding shall have occurred under the
Exit Financing Facility and all conditions precedent to the consummation
thereof (other than the occurrence of the Effective Date of the Plan)
shall have been waived or satisfied in accordance with the terms thereof.
(c) All Reorganization Documents shall have been delivered and all
conditions precedent thereto shall have been satisfied or waived;
(d) All other actions, documents and agreements necessary to
implement the Plan as of the Effective Date shall have been delivered and
all conditions precedent thereto shall have been satisfied or waived;
(e) The Contribution Agreement shall be in full force and effect and
no party thereto shall be in breach or default of the terms thereof;
32
(f) The Steering Committee, Winget, Venture Delaware and the
Pre-Petition Agent shall have approved the terms of the Employment
Agreement;
(g) The Debtors shall have sufficient cash to make distributions
required under the Plan on the Effective Date, including, but not limited
to, the cash payment to the Pre-Petition Lenders and the DIP Facility
Claim; and
(h) The Warrant Valuation Procedures shall be approved by the
Bankruptcy Court.
10.03 EFFECT OF FAILURE OF CONDITIONS TO EFFECTIVE DATE. In the event that
one or more of the conditions set forth in Section 10.02 has not occurred or
duly been waived by the Debtors, Winget and the Steering Committee pursuant to
Section 10.04 of the Plan on or before One Hundred Twenty (120) days after the
Confirmation Date, upon notification submitted by the Debtors to the Bankruptcy
Court, (a) the Confirmation Order shall be vacated, (b) no distributions under
the Plan shall be made, (c) the Debtors and all Holders of Claims and Interests
shall be restored to the status quo ante as of the day immediately preceding the
Confirmation Date as though Confirmation never occurred, and (d) the parties'
respective obligations with respect to the Claims and Interests shall remain
unchanged and nothing contained herein shall constitute or be deemed a waiver or
release of any Claims or Interests by or against the Debtors or any other person
in any further proceeding involving any Debtor.
10.04 WAIVER OF CONDITIONS. The Debtors may (with the consent of Winget
and the Steering Committee), but shall have no obligation to, waive any
conditions set forth in Section 10.02, without notice and without leave of or
order of the Bankruptcy Court. To be effective, any such waiver shall be in
writing and signed by the Debtors, or shall be a stipulation on the record in
this Case of which a transcript is made.
ARTICLE 11
TITLE TO PROPERTY AND RELEASES
11.01 VESTING OF PROPERTY. Except as otherwise provided in the Plan or the
Confirmation Order, upon the Effective Date, (a) the Debtors shall continue to
exist as the Reorganized Debtors, with all the powers of corporations under
applicable law and without prejudice to any right to alter or terminate such
existence (whether by merger or otherwise) under applicable state law, and (b)
all property of the Estates, wherever situated, shall vest in the relevant
Reorganized Debtor, as appropriate, subject to the provisions of the Plan and
the Confirmation Order. Thereafter, Reorganized Venture may operate their
businesses and may use, acquire, and dispose of property free of any
restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the Bankruptcy
Court. After the Effective Date, all property retained by Reorganized Venture
pursuant hereto shall be free and clear of all Claims, debts, Liens, security
interests, encumbrances, and interests, except as contemplated hereby and except
for the obligation to perform according to the Plan and the Confirmation Order.
11.02 DISCHARGE AND INJUNCTION. Except as may otherwise be provided herein
or in the Confirmation Order, the rights afforded and the payments and
distributions to be made under the Plan shall be in complete exchange for, and
in full and unconditional settlement, satisfaction,
33
discharge, and release of any and all existing debts and Claims and Interests of
any kind, nature, or description whatsoever against the Debtors, the Reorganized
Venture, their Assets, property or their Estates, and shall effect a full and
complete release, discharge, and termination of all Liens, security interests,
or other claims, interests, or encumbrances upon all of the Debtors' Assets and
property. Further, all Persons are precluded from asserting, against any of the
Debtors or Reorganized Venture, or any property that is to be distributed under
the terms of the Plan, any claims, obligations, rights, causes of action,
liabilities, or equity interests based upon any act, omission, transaction, or
other activity of any kind or nature that occurred prior to the Effective Date,
other than as expressly provided for in the Plan, or the Confirmation Order,
whether or not (a) a Proof of Claim based upon such debt is filed or deemed
filed under Section 501 of the Bankruptcy Code; (b) a Claim based upon such debt
is Allowed; or (c) the Holder of a Claim based upon such debt has accepted the
Plan. Except as otherwise provided in the Plan or the Confirmation Order, all
Holders of Allowed Claims and Interests arising prior to the Effective Date
shall be permanently barred and enjoined from asserting against Reorganized
Venture or any Debtor, or their successors, or the Assets, any of the following
actions on account of such Allowed Claim or Interest: (a) commencing or
continuing in any manner any action or other proceeding on account of such Claim
or Interest against Reorganized Venture, any of the Debtors, or the property to
be distributed under the terms of the Plan, other than to enforce any right to
distribution with respect to such property under the Plan; (b) enforcing,
attaching, collecting, or recovering in any manner any judgment, award, decree,
or order against Reorganized Venture, the Debtors or any of the property to be
distributed under the terms of the Plan, other than as permitted under
sub-paragraph (a) above; (c) creating, perfecting, or enforcing any Lien or
encumbrance against property of Reorganized Venture, any of the Debtors, or any
property to be distributed under the terms of the Plan; (d) asserting any right
of setoff, subrogation, or recoupment of any kind, directly or indirectly,
against any obligation due any Debtor, Reorganized Venture, the Assets or any
other property of the Debtors, Reorganized Venture, or any direct or indirect
transferee of any property of, or successor in interest to, any of the foregoing
Persons; and (e) acting or proceeding in any manner, in any place whatsoever,
that does not conform to, or comply with, the provisions of the Plan.
11.03 NO WAIVER OF DISCHARGE. Except as otherwise specifically provided
herein, nothing in the Plan shall be deemed to waive, limit, or restrict in any
way the discharge granted to the Debtors upon Confirmation of the Plan by
Section 1141 of the Bankruptcy Code.
11.04 TERM OF INJUNCTIONS OR STAYS. Unless otherwise provided in the Plan,
all injunctions or stays provided for in this Case pursuant to Sections 105 or
362 of the Bankruptcy Code, or otherwise, and in effect on the Confirmation
Date, shall remain in full force and effect until the Effective Date, at which
time they are replaced with the injunction set forth in Section 11.02 herein.
11.05 RELEASE BY DEBTORS.
(a) On the Effective Date, the Debtors, hereby waive, release, and
discharge all of the Debtors' shareholders, members, directors and
officers, employees, agents, managers, advisors, attorneys or
representatives (in their capacity as such and in no other capacity) (the
"Released Parties"), from all liability based upon any act or omission
related to post-petition service with, for, or on behalf of the Debtors or
their
34
Affiliates through and including the Effective Date. The immediately
preceding sentence shall not, however, apply to (i) any indebtedness of
any Person to any Debtor for money borrowed by such Person, (ii) any
setoff or counterclaim that a Debtor may have or assert against any
Person, provided that the aggregate amount thereof shall not exceed the
aggregate amount of any Claims held or asserted by such Person against
such Debtor, (iii) any garnishments; and (iv) any of the Retained Actions.
(b) Notwithstanding any provision of the Plan to the contrary, the
releases contained in this Section 11.05 shall not be construed as or
operate as a release of, or limitation on objections to, Claims.
11.06 PRESERVATION OF INSURANCE. Notwithstanding anything provided herein
to the contrary, the Plan shall not be deemed in any way to diminish or impair
the enforceability of any insurance policies that may cover claims against a
Debtor or any other Person.
ARTICLE 12
MODIFICATION AND RESERVATION OF RIGHTS
IN THE EVENT OF NONACCEPTANCE OF THE PLAN
Each Debtor hereby reserves the right to request that the Bankruptcy Court
confirm the Plan over the objection of any Impaired Class in accordance with the
applicable provisions of Section 1129(b) of the Bankruptcy Code. In the event
that any Impaired Class or Classes of Allowed Claims shall not accept the Plan,
upon the written request of the Debtors filed with the Bankruptcy Court, the
Plan shall be modified, revised, and amended to provide such treatment as set
forth in such request, to assure that the Plan does not discriminate unfairly,
and is fair and equitable, with respect to the Classes rejecting the Plan, and,
in particular, to provide the treatment necessary to meet the requirements of
Sections 1129(a) and (b) of the Bankruptcy Code with respect to (i) the
rejecting Classes and (ii) any other Classes adversely affected by the
modifications caused by this Article.
ARTICLE 13
RETENTION OF JURISDICTION
13.01 CLAIMS AND CAUSES OF ACTIONS. Following the Effective Date, the
Bankruptcy Court shall retain such jurisdiction over this Case as is legally
permissible, including without limitation, such jurisdiction as is necessary to
ensure that the purposes and intent of the Plan are carried out. The Bankruptcy
Court shall also expressly retain jurisdiction: (a) to hear and determine all
Claims against the Debtors; and (b) to enforce all Causes of Action that may
exist on behalf of any Debtor.
13.02 RETENTION OF ADDITIONAL JURISDICTION. Following the Effective Date,
the Bankruptcy Court shall retain jurisdiction for the purpose of classification
of Claims and Interests, the re-examination of Claims that have been Allowed,
and the determination of such objections as may be filed to any Claims,
including Section 502(c) of the Bankruptcy Code proceedings for estimation of
Claims. The Bankruptcy Court shall further retain jurisdiction for the following
additional purposes:
35
(a) to determine all questions and disputes regarding title to the
Assets of the Debtors, all causes of action, controversies, disputes, or
conflicts, whether or not subject to any pending action as of the
Effective Date, between any Debtor and any other party, including, without
limitation, the Winget Actions, the Avoidance Actions, the Extinguished
Actions, and any other right to recover assets pursuant to the provisions
of the Bankruptcy Code;
(b) to modify the Plan after the Confirmation Date in accordance
with the terms of the Plan and pursuant to the Bankruptcy Code and the
Bankruptcy Rules;
(c) to enforce and interpret the terms and conditions of the Plan;
(d) to enter such orders, including, but not limited to, such future
injunctions as are necessary to enforce the respective title, rights, and
powers of the Debtors, and to impose such limitations, restrictions,
terms, and conditions on such title, rights, and powers as the Bankruptcy
Court may deem necessary;
(e) to enter an order closing this Case;
(f) to correct any defect, cure any omission, or reconcile any
inconsistency in the Plan or the Confirmation Order as may be necessary to
implement the purposes and intent of the Plan;
(g) to determine the allowance of Claims;
(h) to determine any and all applications for allowances of
compensation and reimbursement of expenses and the reasonableness of any
fees and expenses authorized to be paid or reimbursed under the Bankruptcy
Code or the Plan;
(i) to determine any applications or motions pending on the
Effective Date for the rejection of any Executory Contract and to hear and
determine, and, if need be, to liquidate any and all Claims arising
therefrom;
(j) to determine any and all motions, applications, adversary
proceedings, and contested matters that may be pending on the Effective
Date;
(k) to consider any modification of the Plan, whether or not the
Plan has been substantially consummated, and to remedy any defect or
omission or to reconcile any inconsistency in any order of the Bankruptcy
Court, to the extent authorized by the Plan or the Bankruptcy Court;
(l) to determine all controversies, suits, and disputes that may
arise in connection with the interpretation, enforcement, or consummation
of the Plan;
(m) to consider and act on the compromise and settlement of any
Claim against or Cause of Action by or against any Debtor arising under or
in connection with the Plan;
36
(n) to issue such orders in aid of execution of the Plan as may be
authorized by Section 1142 of the Bankruptcy Code;
(o) to hear and determine the Warrant Valuation Procedures and any
other matters related to the Creditors' Warrant
(p) to adjudicate any and all disputes relating to the Creditors'
Trust, including, without limitation, the distribution of the Trust
Assets; and
(q) to determine such other matters or proceedings as may be
provided for under Title 28 or any other title of the United States Code,
the Bankruptcy Code, the Bankruptcy Rules, other applicable law, the Plan,
or in any order or orders of the Bankruptcy Court, including, but not
limited to, the Confirmation Order or any order that may arise in
connection with the Plan or the Confirmation Order.
13.03 FAILURE OF BANKRUPTCY COURT TO EXERCISE JURISDICTION. If the
Bankruptcy Court abstains from exercising, or declines to exercise,
jurisdiction, or is otherwise without jurisdiction over any matter arising out
of this Case, including the matters set forth in this Article, this Article
shall not prohibit or limit the exercise of jurisdiction by any other court
having competent jurisdiction with respect to such matter.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.01 GOVERNING LAW. Except to the extent the Bankruptcy Code or
Bankruptcy Rules are applicable, and subject to the provisions of the
Reorganization Documents and any other contract, instrument, release, indenture,
or other agreement or document entered into in connection with the Plan, the
rights and obligations arising under the Plan shall be governed by, and
construed and enforced in accordance with, the laws of the State of Michigan,
without giving effect to the principles of conflicts of law thereof.
14.02 REVOCATION OR WITHDRAWAL OF THE PLAN. The Debtors, with the consent
of the Steering Committee and Winget, reserve the right to revoke or withdraw
the Plan prior to the Confirmation Date. If the Debtors so revoke or withdraw
the Plan, then the Plan shall be null and void and, in such event, nothing
contained herein shall be deemed to constitute a waiver or release of any Claims
by or against, or any Interests in, any Debtor or any other Person or to
prejudice in any manner the rights of any Debtor or any Person in any further
proceedings involving any Debtor.
14.03 SUCCESSORS AND ASSIGNS. The rights, benefits, and obligations of any
Person named or referred to in the Plan shall be binding upon, and shall inure
to the benefit of, the heirs, executors, administrators, successors, or assigns
of such Person.
14.04 TIME. In computing any period of time prescribed or allowed by the
Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
14.05 MODIFICATION OF THE PLAN AND AMENDMENTS. Subject to any limitations
in the Contribution Agreement, the Debtors may alter, amend, or modify the Plan
or any exhibits
37
thereto under Section 1127(a) of the Bankruptcy Code at any time prior to the
Confirmation Hearing subject to the prior consent of the Steering Committee.
Subject to any limitations in the Contribution Agreement, after the Confirmation
Date and prior to the Effective Date, the Debtors may, under Section 1127(b) of
the Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any
defect or omission or reconcile any inconsistencies in the Plan, the Disclosure
Statement or the Confirmation Order, and such matters as may be necessary to
carry out the purposes and effects of the Plan, subject to the prior consent of
the Steering Committee.
14.06 NO PENALTY OR LATE CHARGES. Except as expressly stated in the Plan,
or allowed by a Final Order of the Bankruptcy Court, no interest, penalty or
late charge is to be allowed on any Claim subsequent to the Petition Date.
14.07 PROFESSIONALS' FEES. No Professionals' Fees shall be paid with
respect to any Claim or Interest except as specified herein or as allowed by a
Final Order of the Bankruptcy Court. All final applications for Professional
Fees for services rendered in connection with these Cases prior to the
Confirmation Date shall be filed with the Bankruptcy Court not later than ninety
(90) days after the Effective Date.
14.08 AMOUNTS OF CLAIMS. All references to Claims and amounts of Claims
refer to the amount of the Allowed Claim; provided, however, that Claims that
have been objected to and that have not been Allowed or disallowed prior to the
day set for return of ballots shall be voted and counted at the amount of the
Claim, unless a proceeding to estimate the Claim is brought before the
Bankruptcy Court. The Debtors and other interested parties reserve the right,
both before and after Confirmation, to object to Claims so as to have the
Bankruptcy Court determine or estimate the Allowed amount of such Claim under
the Plan.
14.09 EXCULPATION. The Debtors, Venture Delaware, the Indenture Trustee,
the Pre-Petition Agent, the Post-Petition Agent, the Steering Committee (and
each of its members), Winget and their respective shareholders, members,
partners, officers, directors, employees and agents (including any attorneys,
financial advisors, investment bankers and other professionals retained by such
persons) shall have no liability to any Person for any act or omission made in
good faith in connection with, or arising out of the Plan, (and any Bankruptcy
Court orders related thereto), the Reorganization Documents, the solicitation of
votes for the pursuit of confirmation of the Plan, the consummation of the Plan,
or the administration of the Plan or the property to be distributed under the
Plan, except for fraud, bad faith, willful misconduct or gross negligence as
determined by a Final Order of the Bankruptcy Court and, in all respects, shall
be entitled to rely upon the advice of counsel with respect to their duties and
responsibilities under the Plan; provided, however that nothing in this Section
14.09 shall in no way alter or relieve Winget of any obligations under the
Contribution Agreement or the Winget Actions.
14.10 SECURITIES LAW MATTERS. It is an integral and essential element of
the Plan that the issuance of Common Membership Interests and Preferred
Membership Interests pursuant to the Plan shall be exempt from registration
under the Securities Act, pursuant to Section 1145 of the Bankruptcy Code and
from registration under state securities laws. Any such securities issued to an
"affiliate" of the Debtors within the meaning of the Securities Act or any
Person the Debtors reasonably determines to be an "underwriter," and which does
not agree to resell such securities only in "ordinary trading transactions,"
within the meaning of Section 1145(b)(1) of
38
the Bankruptcy Code shall be subject to such transfer restrictions and bear such
legends as shall be appropriate to ensure compliance with the Securities Act.
Nothing in the Plan is intended to preclude the Securities and Exchange
Commission from exercising its police and regulatory powers relating to the
Debtors or any other entity.
14.11 RULES OF INTERPRETATION. For purposes of the Plan: (i) whenever from
the context it is appropriate, each term, whether stated in the singular or the
plural, shall include both the singular and the plural, and pronouns stated in
the masculine, feminine, or neuter gender shall include the masculine, feminine,
and the neuter gender; (ii) any reference in the Plan to a contract, instrument,
release, indenture, or other agreement or document being in a particular form or
on particular terms and conditions means that such document shall be
substantially in such form or substantially on such terms and conditions; (iii)
any reference in the Plan to an existing document or exhibit filed, or to be
filed, shall mean such document or exhibit, as it may have been or may be
amended, modified, or supplemented in accordance with its terms; (iv) unless
otherwise specified, all references in the Plan to Sections, Articles, and
Exhibits are references to Sections, Articles, and Exhibits of or to the Plan;
(v) the words "herein" and "hereto" refer to the Plan in its entirety rather
than to a particular portion of the Plan; (vi) captions and headings to Articles
and Sections are inserted for convenience of reference only and are not intended
to be a part of or to affect the interpretation of the Plan; and (vii) the rules
of construction set forth in Section 102 of the Bankruptcy Code shall apply.
14.12 SEVERABILITY. Except as to terms which, if unenforceable, would
frustrate the overall purposes of the Plan, should any provision in the Plan be
determined to be unenforceable, such determination shall in no way limit or
affect the enforceability and operative effect of any or all other provisions of
the Plan.
14.13 IMPLEMENTATION. The Debtors shall take all steps, and execute all
documents including appropriate releases, necessary to effectuate the provisions
contained in the Plan.
14.14 INCONSISTENCY. In the event of any inconsistency between the Plan
and the Disclosure Statement, the provisions of the Plan shall govern, and in
the event of any inconsistency between the Plan and any Reorganization Document,
the provisions of the Plan shall govern.
14.15 SERVICE OF DOCUMENTS. Any pleading, notice or other document
required by the Plan to be served on or delivered to the following parties shall
be sent by first class U.S. mail, postage prepaid to:
39
Venture Delaware: with copies to:
Venture Holdings Company, LLC Foley & Lardner
33662 James J. Pompo Dr. 150 W. Jefferson, Suite 1000
P.O. Box 278 Detroit, MI 48226
Fraser, MI 48026 Attn: Judy A. O'Neill, Esq.
Attn: James E. Butler, Jr. Laura J. Eisele, Esq.
Winget: with copies to:
Mr. Larry Winget Greenberg Traurig, PC
33662 James J. Pompo Dr. 77 West Wacker Drive, Suite 2500
Fraser, MI 48026-0278 Chicago, IL 60601
Attn: Nancy Mitchell,Esq.
Nancy Peterman, Esq.
and
Allard & Fish PC
2600 Buhl Building
535 Griswold St.
Detroit, MI 48226
Attn: Ralph McKee, Esq.
Pre-Petition Agent: with copies to:
Bank One, N.A. Sidely Austin Brown & Wood LLP
One Bank One Plaza Bank One Plaza
Chicago, IL 60170 Chicago, IL 60603
Attn: Linda Thompson Attn: Larry J. Nyhan, Esq.
Creditors' Committee: with copies to:
AIG Global Investment Corp. Akin Gump Strauss Hauer & Feld LLP
1999 Avenue of the Stars, 34th Fl. 590 Madison Avenue
Los Angeles, CA 90067 New York, NY 10022
Attn: Thomas Musante, Chairperson Attn: Fred S. Hodera, Esq.
and
Pepper Hamilton, LLP
100 Renaissance Center, Suite 3600
Detroit, MI 48243-7110
Attn: I. William Cohen, Esq.
40
14.16 NO ADMISSIONS. Notwithstanding anything herein to the contrary,
nothing contained in the Plan shall be deemed as an admission by any Person with
respect to any matter set forth herein.
14.17 FILING OF ADDITIONAL DOCUMENTS. On or before the Effective Date, the
Debtors may file with the Bankruptcy Court such agreements and other documents
as may be necessary or appropriate to effectuate and further evidence the terms
and conditions of the Plan.
14.18 SUBSTANTIAL CONSUMMATION. Substantial consummation of the Plan under
Section 1101(2) of the Bankruptcy Code shall not be deemed to occur, the Case
shall remain open and not be deemed fully administered, and no final decree
closing this Case shall be entered pursuant to Section 350(a) of the Bankruptcy
Code and Bankruptcy Rule 3022, until the Effective Date, at the earliest.
(SIGNATURES APPEAR ON FOLLOWING PAGE)
41
VENTURE HOLDINGS COMPANY LLC VENTURE INDUSTRIES CORPORATION
By: James E. Butler By: James E. Butler
--------------------------------- ---------------------------------
An Authorized Officer An Authorized Officer
VEMCO, INC. VENTURE LEASING COMPANY
By: James E. Butler By: James E. Butler
--------------------------------- ---------------------------------
An Authorized Officer An Authorized Officer
VENTURE MOLD & ENGINEERING CORPORATION VENTURE HOLDINGS CORPORATION
By: James E. Butler By: James E. Butler
--------------------------------- ---------------------------------
An Authorized Officer An Authorized Officer
VEMCO LEASING, INC. EXPERIENCE MANAGEMENT LLC
By: James E. Butler By: James E. Butler
--------------------------------- ---------------------------------
An Authorized Officer An Authorized Officer
VENTURE SERVICE COMPANY VENTURE EU CORPORATION
By: James E. Butler By: James E. Butler
--------------------------------- ---------------------------------
An Authorized Officer An Authorized Officer
VENTURE EUROPE, INC.
By: James E. Butler
---------------------------------
An Authorized Officer
Submitted by:
/s/ Laura J. Eisele
-----------------------
Foley & Lardner
Judy A. O'Neill (P32142)
Laura J. Eisele (P42949)
150 West Jefferson, Suite 1000
Detroit, Michigan 48226
Counsel for Debtors and Debtors-in-Possession
EXHIBIT A
FORM OF AMENDED OPERATING AGREEMENT
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit A - Page 1
EXHIBIT B
AVOIDANCE ACTIONS
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit B - Page 1
EXHIBIT C
CAUSES OF ACTION
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit C - Page 1
EXHIBIT D
CONTRIBUTION AGREEMENT
Exhibit D - Page 1
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
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
i
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
ii
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
iii
SCHEDULES
Schedule 1.1 - Permitted Liens
Schedule 4.1 - Allocation of Winget Interests
Disclosure Schedule
iv
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 Section 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 Section 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.
1
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
4
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).
5
"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).
6
"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).
7
"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.
8
"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.
9
"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
10
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),
11
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
12
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,
13
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;
14
(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;
15
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 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
16
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
17
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
18
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").
19
(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
20
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
21
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,
22
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
24
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
26
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
27
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,
28
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
29
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
30
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;
32
(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
33
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
36
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;
37
(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;
38
(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.
39
(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,
40
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
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:
42
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
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
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
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
(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
(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
--------------------------------------
_____________, 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: /s/ Thomas C. Krueger
------------------------------
Its: Secretary Treasurer
A. JAMES SCHUTZ
/s/ A. James Schutz
---------------------------------
MICHAEL G. TORAKIS
/s/ Michaek G. Torakis
---------------------------------
ANNALISA JOLENE TOTH
/s/ Annalisa J. W. Toth
---------------------------------
GWENDOLYN MAY WINGET
/s/ Gwendolyn May Winget
---------------------------------
LARRY JOSEPH WINGET, JR.
/s/ Larry Joseph Winget, Jr.
---------------------------------
NORMAN MATTHEW WINGET
/s/ Norman Matthew Winget
---------------------------------
ADELICIA JO JEAN TIGNANELLI
/s/ Adelicia Jo Jean Tignanelli
---------------------------------
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
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
EXHIBIT B
TRANSFERRING WINGET ENTITIES
Venture Sales & Engineering Corp.
P.I.M Management Company
EX-3
EXHIBIT C
[INTENTIONALLY OMITTED]
EX-4
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
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
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
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
EXHIBIT G
[INTENTIONALLY OMITTED]
EX-9
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.
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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.
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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.
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(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, 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 judgement 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 right 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.
WITNESS: LANDLORD:
HARPER PROPERTIES OF CLINTON TWP.
LIMITED PARTNERSHIP, a Michigan partnership
______________________ By:______________________________
______________________ Name:____________________________
Its:_____________________________
TENANT:
VENTURE INDUSTRIES CORPORATION, a
Michigan corporation
/s/ illegible
______________________ By: /s/ James R. Buturn
______________________________
/s/ illegible
______________________ Name: James R. Buturn
____________________________
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
beginning 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
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 "Rest 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
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 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 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 is 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, invites 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 extent 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
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
By: /s/ Thomas C. Krueger
- --------------------------- ------------------------------------
Name: /s/ Thomas C. Krueger
------------------------------------
Its: Secretary Treasurer
- --------------------------- ------------------------------------
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:
VENTURE REAL ESTATE ACQUISITION COMPANY,
a Michigan corporation
By:
- --------------------------- ------------------------------------
Name:
------------------------------------
Its:
- --------------------------- ------------------------------------
TENANT:
VENTURE INDUSTRIES CORPORATION, a Michigan
corporation
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
- --------------------------- ------------------------------------
Name: /s/ [ILLEGIBLE]
------------------------------------
/s/ [ILLEGIBLE] Its: EVP
- --------------------------- ------------------------------------
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 1/4 OF SEC 5 AND NE 1/4 AND NE 1/4 OF NW 1/4 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 N01 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 NO1 DEGREE 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
EXHIBIT J
EQUIPMENT USAGE AGREEMENT
EX-12
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
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
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 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 sole 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
($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 fails 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 of 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
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. This 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
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. Kruger
------------------------------
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:
------------------------------
AND
User:
VENTURE INDUSTRIES CORPORATION
By: /s/ James E. Butler
------------------------------
Its: EVP
------------------------------
-----------------
SCHEDULE A
MAKE SIZE SERIAL NO. USAGE FEE
- -------------------------------------------------------------------------------
HPM 2500 IX S/N 67-291
Molding Machine
- -------------------------------------------------------------------------------
IMPCO/INGERSO S/N C-3833-71
L RAND 2500 X
350
Molding Machine
- -------------------------------------------------------------------------------
IMPCO/INGERSO S/N 3816-71
L RAND 2500 X
350
Molding Machine
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
8
EXHIBIT K
ESCROW AGREEMENT
EX-13
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 Agreements.
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 a 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
2
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
judgement 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
3
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
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: /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) 276-1843
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
EXHIBIT L
FORM OF CONFIRMATION ORDER
EX-14
EXHIBIT M
EMPLOYMENT AGREEMENT
EX-15
EXHIBIT N
FORM OF OPERATION AGREEMENT
EX-16
EXHIBIT E
FORM OF SUBORDINATION AGREEMENT
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit E - Page 1
EXHIBIT F
FORM OF TRUST AGREEMENT
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit F - Page 1
EXHIBIT G
FORM OF VENDOR SUPPORT AGREEMENT
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit G - Page 1
EXHIBIT H
VENTURE B GROUP
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit H - Page 1
EXHIBIT I
EXECUTORY CONTRACTS
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit I - Page 1
EXHIBIT J
CLAIMS NOT RELEASE PURSUANT TO SECTION 11.6
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit J - Page 1
EXHIBIT K
FORM OF CREDITOR'S WARRANT
TO BE FILED BY THE EXHIBIT FILING DATE
Exhibit K - Page 1