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EXHIBIT 10.1
VENTURE HOLDINGS TRUST
This Trust, originally effective December 28, 1987, is hereby amended and
restated in its entirety effective the 16th day of February, 1994, by and among
LARRY J. WINGET as Settlor, Beneficiary, Special Advisor and Trustee
(hereinafter sometimes referred to as the "Settlor" or "Beneficiary", or, when
acting as such, the "Special Advisor" or "Trustee").
WITNESSETH
Whereas, the Settlor has previously transferred to the Trust, as of
the original effective date of the Trust, all of the Settlor's right, title and
interest in Venture Industries Corporation, Venture Mold & Engineering
Corporation, Venture Industries Canada Ltd., Vemco, Inc., Vemco Leasing, Inc.,
Venture Leasing Company and Venture Holdings Corporation;
And Whereas, the Trustee has acknowledged the receipt of said
property, for the term and upon the conditions hereinafter set forth;
And Whereas, the Settlor intends to transfer to the Trust as of the
effective date of this amended and restated Trust agreement all of the
Settlor's right, title and interest in Venture Service Company;
Now, therefore, it is agreed by and among the Trustee and the Settlor as
follows:
ARTICLE I
FORM
SECTION 1.1 NAME
This Trust shall be named the "VENTURE HOLDINGS TRUST" and may be
referred to as the "Trust", "Venture Holdings Trust" or "Venture Holdings Trust
dated (or effective) December 28, 1987" or "Venture Holdings Trust amended (or
restated) February 16, 1994".
SECTION 1.2 PLACE OF BUSINESS
The principal office and location of the Trust shall be 33662 James J.
Pompo Dr., Fraser, Michigan 48026 or such other place as the Trustee may from
time to time designate.
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SECTION 1.3 TERM
The Trust, having commenced on December 28, 1987, and having been amended
and restated on the date above written, shall continue until terminated by the
Special Advisor, but in no case shall the termination occur prior to the
earliest of:
(A) Larry J. Winget's death (at which time, notwithstanding any other
provision herein, but only if any of the Notes (as hereinafter defined) are
still outstanding, the provisions of Section 5.6(E) shall be fully complied
with and the Trust shall then terminate).
(B) The time when none of the following notes are outstanding:
(1) The notes representing $70,000,000 of aggregate principal
indebtedness issued pursuant to that certain First Amended and
Restated Trust Indenture dated as of February 1, 1994 between the
Constituent Companies named therein and NBD Bank, N.A. (formerly, the
National Bank of Detroit), as Trustee (which Trust Indenture, as it
may be hereafter amended or modified, is herein referred to as the
"Senior Trust Indenture"); and
(2) The notes representing $100,000,000 of aggregate principal
indebtedness issued pursuant to that certain Indenture dated as of
February 16, 1994 between the Issuers and Guarantor named therein and
Comerica Bank, as Indenture Trustee (which Indenture, as it may be
hereafter amended or modified, is herein referred to as the
"Subordinated Trust Indenture"),
(3) The note representing up to $25,000,000 of aggregate
principal indebtedness issued pursuant to that certain Amended and
Restated Credit Agreement dated as of December 12, 1991, between the
Borrowers named therein and NBD Bank, N.A., as lender (which Credit
Agreement, as amended from time to time, is herein referred to as the
"Credit Agreement"),
all of which notes (herein sometimes referred to as the "Notes") have been
issued or are to be issued to various holders or lenders (herein sometimes
collectively referred to as the "Note Holders") under and pursuant to certain
instruments, agreements and related collateral documents (all of which
instruments, agreements and documents, including the Notes, are hereinafter
sometimes referred to as the "Loan Documents") as a result of indebtedness
incurred or guaranteed or contemplated to be incurred or guaranteed by the
Trust and Venture Industries Corporation, Venture Mold & Engineering
Corporation, Venture Industries Canada Ltd., Vemco, Inc., Vemco Leasing, Inc.,
Venture Leasing Company, Venture Holdings Corporation and Venture Service
Company (which entities, and any other entities which may from time to time be
contributed to the Trust, are herein sometimes jointly referred to as the
"Subsidiaries").
(C) The provisions of Section 5.6(E) have been fully complied with.
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SECTION 1.4 PURPOSE
The primary purpose for which the Trust is organized is to create a
single centralized entity to facilitate the borrowing under the Senior Trust
Indenture and Subordinated Trust Indenture including the receipt, disbursement
and repayment of the proceeds therefrom and to guarantee the indebtedness to
NBD Bank, N.A. under the Credit Agreement.
ARTICLE II
TRUST ESTATE AND BENEFICIARY
SECTION 2.1 TRUST PROPERTY
The Trust Estate shall, as of the effective date of this amendment and
restatement, consist of (a) all of the outstanding stock of Venture Industries
Corporation, Venture Mold & Engineering Corporation, Venture Industries Canada
Ltd., Vemco, Inc., Vemco Leasing, Inc., Venture Leasing Company, Venture
Holdings Corporation and Venture Service Company and (b) certain interests in
life insurance policies on the life of Larry J. Winget as have been assigned to
the Trust. The Settlor may from time to time make additional contributions to
the Trust Estate.
SECTION 2.2 BENEFICIARY OF INCOME AND CORPUS
(A) (1) Nothing herein to the contrary withstanding, during the
lifetime of the Beneficiary, Larry J. Winget, he shall be the only
income and corpus beneficiary of the Trust.
(2) Upon the death of Larry J. Winget, the Larry J. Winget
Living Trust, dated the 23rd day of December, 1987, as it may be now
or hereafter amended or supplemented, shall be the beneficiary.
(3) Any other person or entity shall be prohibited from
obtaining a beneficial interest in the Trust Estate prior to the
termination of the Trust.
(B) If and when Larry J. Winget becomes disabled or is unavailable
(as such terms are defined in Section 3.2) (the "S Trust Commencement Date"),
then:
(1) The Trust shall distribute all of its income (as defined
in Section 643(b) of the Internal Revenue Code (the "Code"), or its
successors and supplements, in light of Section 2.3, below) (herein,
its "Income") arising with respect to the period from and after the S
Trust Commencement Date and continuing for the duration of such
disability or unavailability (the "S Trust Period"); provided, that at
any time during the S Trust Period after any of the following events
has occurred, this provision shall not apply:
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(a) the 30th day after the S Trust Commencement
Date, if the Trust has not made application to the Internal
Revenue Service by such date for a ruling to the effect that
it is a grantor trust as defined in Section 1361 (c)(2)(A)(i)
of the Code, or its successors and supplements, or a trust
under Section 1361(d) of the Code, or its successors and
supplements;
(b) the private ruling request referred to in (a)
has been revoked; or
(c) the Internal Revenue Service has in writing
either (i) determined that the Trust is a grantor trust as
defined in Section 1361(c)(2)(A)(i) of the Code, or its
successors and supplements, or (ii) determined that the Trust
is not a grantor trust as defined in Section 1361(c)(2)(A)(i)
of the Code, or its successors and supplements, and is not a
trust under Section 1361(d) of the Code, or its successors and
supplements.
(2) The Trust shall not take any action or fail to take any
reasonable action that would cause it to have Income for the S Trust
Period in excess of the amount the Trust would be permitted to
distribute in respect of its Equity Interests pursuant to Section 1009
of the Subordinated Trust Indenture and Section 6.15 of the Senior
Trust Indenture; provided however, that if the Trust shall have
received a private letter ruling from the Internal Revenue Service
that it is a grantor trust described in Section 1361(c)(2)(A)(i) of
the Code, or its successors and supplements, the foregoing provisions
of this clause (2) shall not apply for the period such ruling applies
to.
(C) The Income interest of the Beneficiary in the Trust shall
terminate on the earlier of his death or the termination of the Trust.
(D) Nothing herein to the contrary withstanding, upon termination of
the Trust during the life of the Beneficiary and during an S Trust Period and
upon compliance with Section 5.6(E), the Trustee shall distribute all of the
accumulated Income and corpus of the Trust to the Beneficiary.
(E) Upon termination of the Trust due to the death of the Beneficiary,
the Trustee shall act in accordance with Section 5.6(E).
(F) If the Notes are no longer outstanding, the Beneficiary shall
have the power to amend this Trust in order to change the identity of the
recipient, upon the Beneficiary's death, of the income and corpus of the Trust
Estate. The Trustee shall recognize the effectiveness of such amendment upon
the receipt of notice from the Beneficiary that he has exercised this power.
(G) Nothing herein to the contrary withstanding, the Beneficiary
shall not have the power to sell, assign, pledge, or in any other manner
transfer its beneficial interest in the income and corpus of the Trust Estate
except as permitted by Section 5.6(E).
SECTION 2.3 TRUST ACCOUNTING
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(A) For purposes of this Trust and Section 643(b) of the Code and Act
340 of Michigan Compiled Acts, 1965, or its successors and supplements (the
"Act"), the Income of the Trust shall be determined by:
(1) making all determinations of gross income or receipts on
the cash basis, irrespective of principles of tax accounting or
generally accepted accounting principles; provided, that interest
income on sales of assets held by the Trust shall be allocated to
principal;
(2) expenses and expenditures to be subtracted from gross
income or receipts shall be the sum of (a) all expenses or
expenditures, including the amounts necessary to repay principal,
interest, make whole amount (if any) and other payments on any
indebtedness; but not including the cost (other than compensation of
the Trustee or its advisors and any investment counselor or broker) of
the following charges paid from principal (i) investing and
reinvesting principal, (ii) protecting or determining the amount of or
identity of trust principal, (iii) one half of the cost of protecting
or determining the amount of both the principal and income of the
Trust, (iv) extraordinary expenses incurred in making capital
additions to tangible property (rather than merely repairing or
improving the property with a view towards maintaining its value or
use), and (v) taxes on the sale of principal, in each case determined
on the cash basis, irrespective of principles of tax accounting or
generally accepted accounting principles (all of which are herein
referred to as the "Expenses") and (b) any additional amount necessary
to accrue, under generally accepted principles of accounting, Expenses
for the period in question; provided, all Expenses shall be without
duplication of any Expenses deducted in a prior period;
(3) to the extent not prohibited by law, during the S Trust
Period, Income shall be defined to be and shall be determined
(including, without limitation, the making of elections, allocations
of expenses, and choice of method of accounting) so that the amount of
such Income is not in excess of the amount the Trust would be
permitted to distribute in respect of its Equity Interests pursuant to
Section 1009 of the Subordinated Trust Indenture and Section 6.15 of
the Senior Trust Indenture; provided, however, that if the Trust shall
have received a private letter ruling from the Internal Revenue
Service that it is a grantor trust described in Section
1361(c)(2)(A)(i) of the Code, or its successors and supplements, the
foregoing provisions of this clause (3) shall not apply for the period
such ruling applies to; and
(4) otherwise determining and allocating the Trust's gross
income and receipts and expenses and expenditures to principal and
income in accordance with the "Act".
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ARTICLE III
SPECIAL ADVISOR
SECTION 3.1 SPECIAL ADVISOR'S(S') POWERS
Subject to the requirement that in no event shall the Special Advisor take any
action or fail to take any reasonable action which would cause the Trust to
violate any term of the Loan Documents:
(A) (1) The Special Advisor shall have the power to exercise the
authority provided to it under the Direction Procedure set forth in
Article IV or as provided in this Article III.
(2) The Trustee shall recognize the effectiveness of the
Special Advisor's(s') actions upon the receipt by the Trustee of
notice from the Special Advisor that the Special Advisor has exercised
this power.
(B) In addition:
(1) The Special Advisor shall have the power to cause the
transfer of shares of the Subsidiaries held by the Trust and all the
other Trust corpus to Venture Holdings Corporation.
(2) The Special Advisor shall have the power to cause this
Trust:
(a) To be converted or reconstituted into an entity
with completely different, substantially different or
substantially similar characteristics, as the Special Advisor
may in its sole discretion determine, and as a result of such
conversion or reconstitution, to cause this Trust to be
liquidated, terminated or frozen. Among other ways, such
conversion or reconstitution may be brought about by the
Special Advisor as part of (i) a merger or consolidation with
another entity, (ii) a sale or transfer of some, substantially
all, or all of the assets of the Trust Estate, or (iii) a
registration pursuant to an Initial Public Offering; and
(b) To sell, issue, convey, transfer, lease or
otherwise dispose of (including, without limitation, by way of
merger, consolidation or sale and leaseback transaction)
(collectively, a "transfer"), directly or indirectly, in one
or a series of related transactions, of (i) any or all equity
interests of any Subsidiary; (ii) all or substantially all of
the properties and assets of any division or line of business
of the Trust or any of its Subsidiaries; or (iii) any other
properties or assets of the Trust;
(C) The Special Advisor (including any member of the Successor Special
Advisor Group succeeding the Special Advisor) shall have the power to assign or
delegate all or any portion of its rights, duties and powers under the terms of
this Trust. An exercise of such power by any member
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of the Successor Special Advisor Group shall be subject to the approval of all
the other then members of the Successor Special Advisor Group. The Trustee
shall recognize the effectiveness of an assignment or delegation made under
this Sub-Section upon the receipt of notice from the Special Advisor that
it has exercised this power.
(D) The Special Advisor shall have the power to make amendments to this
Trust affecting the identity, rights, duties and powers of the Special Advisor
or members of the Successor Special Advisor Group; provided, however, that only
Larry J. Winget, shall have the power to reduce or inhibit the rights, duties
and powers exercisable by him as Special Advisor or reduce or inhibit his right
under Section 3.2(E) to reassume the position of Special Advisor. An exercise
of the powers given to the Successor Special Advisor Group under this
Sub-Section shall only be by unanimous vote of the Group. The Trustee shall
recognize the effectiveness of amendments made pursuant to this Sub-Section
upon the receipt of notice from the Special Advisor that it has exercised this
power.
(E) The Special Advisor, with the consent of the Trustee, shall have the
power to amend this Trust in any manner or way; provided, however, that only
Larry J. Winget, in his capacity as Special Advisor, shall have the power to
reduce or inhibit any of the rights, duties and powers of the Beneficiary.
SECTION 3.2 DEATH, DISABILITY OR UNAVAILABILITY OF SPECIAL ADVISOR
(A) The rights, duties and powers that Larry J. Winget possesses as the
Special Advisor under this Trust shall be transferred pursuant to the process
set forth in this Section 3.2 if Larry J. Winget dies, becomes disabled through
illness, age or other cause or his whereabouts become unknown.
Any spouse or family member of Larry J. Winget or any executive officer
of a Subsidiary may allege in an affidavit to the Successor Special Advisor
Group (hereinafter defined) that Larry J. Winget is so disabled through
illness, age or other cause, that he is unable to care for his personal
finances. If (1) such affidavit is accompanied by the certification of two
licensed physicians, one of whom is Larry J. Winget's family or attending
physician, if available, that Larry J. Winget is unable to care for his
personal finances, or (2) the Successor Special Advisor Group determines by any
other means that Larry J. Winget is unable to care for his personal finances,
then Sub-Section (B) shall be applicable.
If Larry J. Winget's whereabouts are unknown (hereinafter sometimes
referred to as his "unavailability") to both Alicia Winget and the Boards of
Directors of the Subsidiaries (or only the Boards of Directors, if Alicia
Winget is deceased, disabled, unavailable or no longer married to Larry J.
Winget) and the same is certified by affidavit to the Successor Special Advisor
Group by any two members of the Successor Special Advisor Group, then
Sub-Section (B) shall be applicable.
(B) Upon the death, disability or unavailability of Larry J. Winget as
set forth in Sub-Section (A), the rights, duties and powers he possesses as
the Special Advisor under this Trust shall be assumed by the Successor Special
Advisor Group, subject to the following.
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The rights, duties and powers of the Special Advisor of this Trust shall
be jointly assumed by four Successor Special Advisors. If a majority are unable
to agree on a matter, Alicia Winget will act in an arbitrator capacity by
agreeing with one of the positions taken by the Successor Special Advisors, but
not by making an independent decision. Collectively, this group is herein
sometimes referred to as the "Successor Special Advisor Group".
(C) Michael Torakis, A. James Schutz, Larry Joseph Winget, Jr. and
Adelicia Jo Jean Tignanelli are hereby appointed to initially serve in the four
Successor Special Advisor positions.
(D) Upon the death, disability, unavailability, unwillingness to serve
or discontinuance of full-time employment with any Subsidiary of Michael
Torakis, A. James Schutz, or one of their successors, he shall be succeeded as
a member of the Successor Special Advisor Group by Joseph Tignanelli if the
same is at the time a full-time employee of any of the Subsidiaries; otherwise,
the Trustee shall choose a Successor from among the non-family members who are
full-time employees of any Subsidiary or Subsidiaries which accounts for at
least twenty percent (20%) of the total gross sales of the Subsidiaries or any
full-time employee of any Subsidiary if there exists no individual who meets
the aforementioned requirements of this paragraph.
Upon the death, disability, unavailability or unwillingness to serve of
Larry Joseph Winget, Jr. or Adelicia Jo Jean Tignanelli, or one of their
successors, the Trustee shall choose as a Successor either Norman Matthew
Winget, Gwendolyn May Winget or, (if she has reached the legal age of majority)
Annalisa Winget.
Upon the death, disability, unavailability or unwillingness to serve of
Alicia Winget, she shall be succeeded by David Howell, C.P.A., or if he is
unavailable or unwilling to serve, by John J. Davey, attorney at law.
For purposes of this Trust, "disability" shall mean that an individual is
so disabled through illness, age or other cause, that he is unable to care for
his personal needs or finances.
For purposes of this Trust, "unavailability" shall mean that an
individual's whereabouts are unknown.
For purposes of this Trust, "unwillingness to serve" shall mean that an
individual has so notified the Trustee or has failed to respond with an answer
(or to request a reasonable extension of time or additional information) within
three (3) working days of any request for action by the Trustee or by one of
the other members of the Successor Special Advisor Group.
(E) Whether or not any person is no longer disabled or unavailable shall
be determined by the same process as that used in Sub-Section (A) for initially
determining disability or unavailability. Upon such determination, said person
shall reassume all the rights, duties and powers that were possessed as the
Special Advisor under the terms of this Trust prior to the disability or
unavailability so long as such person is otherwise permitted to serve by the
terms hereof.
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If the Trustee or Successor Special Advisor Group refuse to permit the
transfer of the Special Advisor's(s') powers, any interested party may petition
a court of competent jurisdiction to make the determination of whether said
power is required to be transferred by the terms hereof.
The Trustee or Successor Special Advisor Group shall not be liable for
any claim whatsoever which may arise as a result of its recognition of the
authority of the Successor Special Advisor Group to exercise the rights, duties
and powers of the Special Advisor or as a result of its recognition of the
right of any person to reassume such rights, duties and powers as long as the
their actions were taken in good faith and in the exercise of due care.
SECTION 3.3 SUCCESSOR SPECIAL ADVISOR GROUP
References to the Special Advisor shall include the Successor Special
Advisor Group. At the time of the Special Advisor's death, disability or
unavailability, if the provisions of Section 3.2 have been complied with the
Successor Special Advisor Group shall succeed to all of the title, powers,
rights, discretion, obligations and immunities of the original Special Advisor
unless expressly set forth otherwise.
SECTION 3.4 VALIDITY OF THE SPECIAL ADVISOR'S(S') ACTS
It shall not be necessary for anyone (including the Trustee) dealing with
the Special Advisor to inquire into the validity of anything the Special
Advisor purports to do or to investigate the application of any money paid or
property transferred to or upon the orders of the Special Advisor.
SECTION 3.5 FEES
The Special Advisor shall be entitled to a reasonable fee for its
services.
SECTION 3.6 LIABILITY
The Special Advisor shall not incur any liability and shall not be deemed
to have violated any of the provisions of this Trust as a result of any
mistakes or errors in judgment made in good faith and in the exercise of due
care in connection with the Trust business.
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ARTICLE IV
DIRECTION PROCEDURE
SECTION 4.1 SPECIAL ADVISOR'S(S') POWERS
The Special Advisor shall have the exclusive power to determine and
direct the timing, manner, conditions and/or substance of the Trustee's
exercise of the powers and duties as set forth in Section 5.6. It shall be a
violation of the Trustee's fiduciary duty to refuse to follow or to ignore such
direction by the Special Advisor.
SECTION 4.2 PROCEDURES
The power set forth in Section 4.1 shall be exercised pursuant to either
(A) or (B) of the following:
(A) Upon the Trustee determining that it may be necessary, convenient or
prudent to exercise any power or duty which is subject to the Direction
Procedures herein set forth, the Trustee shall notify the Special Advisor of
the same. Upon such notification, the Special Advisor shall, if he determines
that the exercise of such power or duty is warranted (such determination being
in the Special Advisor's(s') sole discretion), direct the Trustee in writing
(on a form substantially similar to that set forth in Exhibit A) as to the
specific timing, manner, conditions and substance of the actions to be taken or
refrained from by the Trustee (the provision of such direction herein sometimes
being referred to as a "Direction"). Upon receipt of such Direction, the
Trustee shall carry out its terms and conditions, unless the same shall be
illegal or shall not be reasonably possible under the circumstances. Provided,
however, that nothing herein to the contrary withstanding, the Trustee shall
have no affirmative duty to determine if any action shall be necessary,
convenient or prudent for it to exercise.
(B) Upon the Special Advisor determining that it may be necessary,
convenient or prudent for the Trustee to exercise any power or duty which is
subject to the Direction Procedures herein set forth, the Special Advisor shall
direct the Trustee in writing (on a form substantially similar to that set
forth in Exhibit A) as to the specific timing, manner, conditions and substance
of the actions to be taken or refrained from by the Trustee (the provision of
such direction herein sometimes being referred to as a "Direction"). Upon
receipt of such Direction, the Trustee shall carry out its terms and
conditions, unless the same shall be illegal or shall not be reasonably
possible under the circumstances.
(C) In the event that the Trustee determines that the terms and/or
conditions of any Direction may require illegal or unreasonable action, then
the Trustee shall immediately notify the Special Advisor of the same. Upon
such notification, the Special Advisor shall either re-direct the Trustee in
writing (on a form substantially similar to that set forth in Exhibit A) as to
the specific timing,
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manner, conditions and substance of the actions to be taken or refrained from
by the Trustee (the giving of such re-direction herein sometimes being referred
to as a "Direction") or seek a resolution of the matter through the arbitration
procedure in Article VIII of this Trust. Upon receipt of such re-direction or
notice of the Arbitrator's approval of the Direction, the Trustee shall carry
out its terms and conditions, unless the same shall be illegal or shall not be
reasonably possible under the circumstances.
(D) Unless authority has been expressly granted to the Trustee to take or
refrain from taking any particular actions on a continuing basis, then the
Trustee shall have no right to rely on any Direction to guide or direct the
Trustee as to any course of conduct which it shall take at any future date,
other than as to the specific instance or instances for which such Direction
initially was provided.
ARTICLE V
TRUSTEES
SECTION 5.1 DEATH, RESIGNATIONS AND REMOVAL
(A) If Larry J. Winget shall be acting as Trustee, upon the death,
disability or unavailability of Larry J. Winget (determined by the same method
set forth in Section 3.2(A)) the rights, duties and powers as Trustee under
this Trust shall be assumed by Michael G. Torakis; provided, that Michael G.
Torakis shall not assume such rights, duties and powers (or, if he shall have
already done so, he shall not continue to act as Trustee) if:
(1) Either Alicia Winget or, without the participation of
Michael G. Torakis, the Special Advisor determines that Michael G.
Torakis shall not so act;
(2) Michael G. Torakis dies, becomes disabled or his
whereabouts become unknown (determined by the same method set forth in
Section 3.2(A)).
(B) If Michael G. Torakis, or any successor Trustee, dies, becomes
disabled or his whereabouts become unknown (determined by the same method set
forth in Section 3.2(A)) or discontinues acting as Trustee or, if the Special
Advisor or Alicia Winget shall have objected to Michael G. Torakis assuming the
position of Trustee, a successor Trustee shall be chosen by the Special
Advisor; provided:
(1) such appointment shall not be valid unless the Trustee so
chosen is (i) Alicia Winget or (ii) a commercial banking institution
that is a member of the Federal Reserve System and that has combined
capital and surplus and undivided profits of not less than
$500,000,000, or (iii) two or more of the following persons, Larry
Joseph Winget, Jr., A. James Schutz, Adelicia Jo Jean Tignanelli,
Norman Matthew Winget, Gwendolyn May Winget or, (if she has reached
the legal age of majority) Annalisa Winget; or (iv) any other
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Person who has received the prior approval of the Trustee of the
Subordinated Trust Indenture (if the Subordinated Trust Indenture is
then in full force and effect) and the Trustee of the Senior Trust
Indenture (if the Senior Trust Indenture is then in full force and
effect) and NBD Bank, N.A. (if the Credit Agreement is then in full
force and effect), which approval shall not be unreasonably withheld,
and
(2) the Trustee of the Subordinated Trust Indenture (if the
Subordinated Trust Indenture is then in full force and effect) and of
the Senior Trust Indenture (if the Senior Trust Indenture is then in
full force and effect) and NBD Bank, N.A. (if the Credit Agreement is
then in full force and effect) shall have been notified of the same
and if either shall make a reasonable objection to such appointment,
then they shall each have the right to approve any such successor
Trustee, which approval shall not be unreasonably withheld.
(C) The Trustee of this Trust may resign at any time by delivering
thirty (30) days written notice to that effect to the Special Advisor.
(D) The Special Advisor may at any time remove the Trustee without
cause by an instrument in writing delivered to the Trustee.
(E) If no successor Trustee has been duly appointed upon the Trustee's
resignation, removal or other termination, a Special Advisor, the Trustee of
the Subordinated Trust Indenture (if the Subordinated Trust Indenture is then
in full force and effect), the Trustee of the Senior Trust Indenture (if the
Senior Trust Indenture is then in full force and effect), a Note Holder or NBD
Bank, N.A. (if the Credit Agreement is then in full force and effect) shall
have the right to seek appointment of a successor Trustee in a court of
competent jurisdiction.
SECTION 5.2 SUCCESSOR TRUSTEES
References to the Trustee or Trustees shall include successor Trustees.
A successor Trustee shall succeed to all of the title, powers, rights,
discretion, obligations and immunities of the original Trustee; provided, the
successor Trustee shall not be obligated to accept, ratify or approve of any of
the acts, omissions, or defaults of the Trustee, nor shall it be required to
audit or verify the records of the Trustee. The fact that the successor
Trustee has assumed and carried out its duties without protest or exception
shall not be deemed such an acceptance, ratification or approval. The
successor Trustee shall be entitled to rely upon any statements and records
(which may come into the successor Trustee's possession after a reasonable
search) of the Trustee as to the assets of this Trust and shall have no
responsibility or liability hereunder to any person for the assets of this
Trust until reduced to the possession of the successor Trustee.
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SECTION 5.3 VALIDITY OF TRUSTEE'S ACTS
It shall not be necessary for anyone dealing with the Trustee to inquire
into the validity of anything the Trustee purports to do or to investigate the
application of any money paid or any property transferred to or upon the orders
of the Trustee.
SECTION 5.4 BONDING
No bond shall be required on any Trustee hereunder, or if a bond is
required by law, only a nominal bond shall be required.
SECTION 5.5 ACCOUNTINGS
The Trustee shall not be required to render any accountings to any court,
but it shall render an account at least annually to the Beneficiary. Unless the
Beneficiary shall object in writing within ninety (90) days, all matters and
transactions stated therein shall be final and binding upon all persons
(whether in being or not) who are then or may thereafter become interested in
or entitled to share in, either the income or corpus of the Trust.
SECTION 5.6 DUTIES AND POWERS
(A) The Trustee shall have the following duties, free of any right or
power of the Special Advisor to direct the Trustee as to the timing, manner,
conditions and/or substance of the exercise of such duties:
(1) The duty to receive and hold the Trust corpus and income
as herein set forth, and to do all acts necessary thereto, including,
but not limited to, establishing bank accounts (which may be in the
Trustee's own bank), endorsing checks and other drafts, and arranging
for the transfer of funds.
(2) The duty to promptly invest all collected funds in a money
market fund which invests solely in obligations of the United States
Government (or, if consented to by the Special Advisor, in a Treasury
obligation of specified maturity, in which case the Trustee may charge
its usual transaction fee); provided that such investments are
permitted by the Loan Documents.
(3) The duty to keep full books of account in which all the
banking transactions of the Trust shall be recorded.
(4) The duty to distribute all of the income of the Trust
currently to the Beneficiary to the extent required by Section 2.2(B).
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(B) The Trustee shall have the following powers, free of any right or
power of the Special Advisor to direct the Trustee as to the timing, manner,
conditions and/or substance of the exercise of such powers, provided
that such exercise is in accordance with the terms of the Loan Documents:
(1) The power to hold cash and cash type instruments and to
open and to close checking and savings accounts and/or safety deposit
boxes in banks or similar financial institutions, in the name of the
Trustee or in the name of a nominee, with or without indication of any
fiduciary capacity; to deposit cash in and withdraw cash from such
accounts and/or boxes, with or without indication of any fiduciary
capacity; to hold such accounts and/or securities in bearer form, or
in the name of the Trustee or in the name of a nominee with or without
indication of any fiduciary capacity.
(2) The power to employ investment counsel, brokers,
accountants, attorneys and any other agents to act in the Trust's
behalf, to do any act or thing necessary, incidental or convenient to
the proper administration of the Trust.
(3) The power from time to time to determine the authority of,
appoint and terminate one or more "Attorney(s)-in-fact" for the
Trustee, who shall have the powers and duties set forth in, and act
pursuant to, powers expressly given to such Attorney(s)-in-fact
pursuant to express written powers of attorney of the Trustee from
time to time made; provided that no such Attorney-in-fact shall have
any power or duty which the Trustee could not him/her/itself exercise
at that time.
(C) The Trust, through the Trustee, shall not have the power to:
(1) Engage in the active conduct of any business whatsoever.
(2) Authorize any distribution from any Subsidiary unless
pursuant to a Special Advisor's Direction which Direction shall
certify that the distribution requirements of the Loan Documents have
been complied with.
(D) Nothing herein to the contrary withstanding, other than
Sub-Section (C)(2), if, and only if, the Direction Procedure set forth in
Section 4.2 has been followed, so that the Trustee has received a Direction in
writing (on a form substantially similar to that set forth in Exhibit A), shall
the Trustee then exercise any of the following powers and duties:
(1) (a) The power and duty to borrow on the terms set
forth in the Loan Documents and receive the proceeds which the Loan
Documents contemplate will be paid in connection with the execution of
the Loan Documents and to execute any Loan Documents.
(b) The power and duty to execute any other
documents from time to time as may be reasonably necessary to
establish, continue, renew, extend or expand the
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relationship with the Note Holders or to exercise any of the powers of
the borrower under the Loan Documents.
(c) The power and duty to guarantee to NBD Bank,
N.A., the Twenty-Five Million Dollar ($25,000,000) Credit Agreement,
and its renewal, on the terms permitted by the Loan Documents and
execute said Guaranty and any collateral documents.
(2) The power and duty to determine the authority of, appoint
and terminate a set of "Officers" of the Trust, pursuant to a
Direction of the Special Advisor, such Officers having the powers and
duties set forth in a Direction of the Special Advisor; provided that
no such Officer shall have any power or duty which the Trustee could
not itself exercise.
(3) The power and duty to loan sums of money to the
Subsidiaries.
(4) The power and duty to demand loan repayments from the
Subsidiaries.
(5) The power and duty to negotiate, renegotiate and approve
extensions of credit and investment transactions in addition to those
specifically set forth herein.
(6) The power and duty to vote upon, approve and direct
distributions and liquidations by the Subsidiaries, but not in
violation of Sub-Section (C)(2).
(7) The power and duty to reinvest income and the proceeds from
the sale or hypothecation of Trust assets in new ventures, including
the purchase of shares, obligations or other interests in any entity.
(8) The power and duty to vote stock of the Subsidiaries and
to give general proxies or powers of attorney for voting or acting
with respect to shares, obligations or other interests in entities
which the Trustee shall from time to time have an investment interest
in, which proxies or powers of attorney may be discretionary if the
Special Advisor so provides, and with power of substitution of the
proxy holder.
(9) The power and duty to do all acts reasonably necessary,
including the execution of any and all documents which the Special
Advisor directs the Trustee to execute, in order to accomplish the
conversion or reconstitution, liquidation, termination or freezing of
the Trust pursuant to Section 3.1(B).
(10) The power and duty to deposit shares or securities
with, or transfer them to, protective committees or similar bodies and
join in any reorganization and pay assessments or subscriptions called
for in connection with shares, interests or obligations held by the
Trust.
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(11) The power and duty to make contracts and
guarantees or otherwise incur liabilities, borrow money, issue its
notes, bonds, or other obligations, or secure any of its obligations
by mortgage or pledge of all or any of the Trust's property and
income, in addition to those transactions expressly permitted herein.
(12) The power and duty, in the Trust's name, to adjust,
arbitrate, assign, compromise, sue or defend, release, abandon or
otherwise deal with any and all claims or debts in favor of or against
the Trust; provided, however, that such does not violate, compromise,
extend or reduce any right of a Note Holder under the Loan Documents
unless such affected Note Holder has given its express consent.
(13) The power and duty to purchase, take, receive, lease, or
otherwise acquire, own, hold, improve, use and otherwise deal in and
with, real or tangible personal property, or any interest therein,
wherever situated.
(14) The power and duty to be a partner, member or associate
of any partnership, joint venture or other enterprise.
(15) The power and duty to sell, hypothecate, convey, lease,
exchange, transfer or otherwise dispose of all or any part of the
Trust property and assets.
(16) The power and duty to make payments or distributions as
herein set forth of the Trust property, wholly or partly
in kind.
(17) The power and duty to sell Trust assets.
(18) The power and duty to appoint and terminate members of
the "Fairness Committee".
(19) Any other power or duty that has not been expressly
delegated in this Section 5.6, which the Special Advisor, in its sole
discretion, determines shall be exercised.
(E) If any Notes are outstanding under the Subordinated Trust
Indenture or the Senior Trust Indenture, upon receipt of a Direction from the
Special Advisor or upon the death of the Beneficiary, the Trustee shall join
with all other necessary parties in making a contribution of all their right,
title and interest in and to the corpus of the Trust (except for the shares it
holds of Venture Holdings Corporation) and Income of the Trust to Venture
Holdings Corporation; provided, however, that all Income accumulated during an
S Trust Period shall be distributed to Larry J. Winget. The shares of Venture
Holdings Corporation shall then be distributed to Larry J. Winget (or if the
distribution is occurring upon the death of Larry J. Winget, to the Larry J.
Winget Living Trust dated the 23rd day of December, 1987, as it may be now or
hereafter amended or supplemented) and the Trust shall be terminated. The
assignment to Venture Holdings Corporation shall not be valid unless and until
said corporation expressly assumes the obligations of the Trust. Upon such
assumption and after making
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such distributions, the Trustee shall be discharged from all of its obligations
under the Trust and the Trust shall be terminated.
(F) The Trustee shall not have the responsibility to collect any funds
due, owing or payable to the Trust or to see to the application of any funds
after they have been distributed or paid by the Trust.
SECTION 5.7 ACTIONS
The Trustee shall act promptly in fulfilling its duties under this Trust.
SECTION 5.8 FEES
The Trustee shall be entitled to and shall charge no more than a
reasonable fee for its services. It shall also be entitled to reimbursement
for reasonable expenses including all those incurred pursuant to Section
5.6(B)(2).
SECTION 5.9 INDEMNIFICATION
The Settlor, Beneficiary and Special Advisor hereby covenant to protect,
save and keep harmless the Trustee from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed upon, incurred or asserted against the Trustee in any way relating to
or arising out of this Trust or the performance or enforcement of any of its
terms or in any way relating to or arising out of the administration of the
Trust or action or inaction of the Trustee except in the case of willful
misconduct or gross negligence of the Trustee in the performance of its duties.
SECTION 5.10 DISPUTES AS TO TRUSTEE'S LIABILITY
Any dispute which may arise regarding the Trustee's liability for
negligence, failure to perform its duties or otherwise, shall be resolved in a
court of competent jurisdiction.
ARTICLE VI
DIVISION OF MANAGEMENT RESPONSIBILITIES
SECTION 6.1 DIVISION OF MANAGEMENT OF BUSINESS AND AFFAIRS OF THE TRUST
(A) The Trust's management is hereby divided into (i) a Fairness
Committee which, to the extent herein provided, shall review certain
transactions and (ii) the Special Advisor, which shall have the power to
determine all management issues regarding the business and affairs of the
Trust, subject to the approval of the Fairness Committee as herein provided.
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(B) The Fairness Committee shall be established in accordance with the
terms of the Senior Trust Indenture and the Subordinated Trust Indenture and
shall have such rights and duties as set forth therein.
(C) The Fairness Committee shall have such other rights and duties and
shall act by such procedures and in such manner as the Special Advisor shall
determine from time to time, provided that no such determination shall limit or
otherwise interfere with the rights and duties of the Fairness Committee as set
forth in (B), above.
ARTICLE VII
DISSOLUTION AND AMENDMENT
SECTION 7.1 DISSOLUTION
In the event that the Trust shall hereafter be dissolved for any reason
other than by the provisions of Section 5.6(E), a full and general account of
its assets, liabilities and transactions shall at once be taken. Such assets
may be sold and turned into cash as soon as possible and all debts and other
amounts due the Trust collected. The proceeds thereof shall then be applied in
the order set forth below:
(A) The debts and liabilities of the Trust and the expenses of
liquidation shall be discharged; and
(B) The remainder shall be distributed to the Beneficiary.
SECTION 7.2 AMENDMENT
This Trust may be not be amended, except as follows. The Special
Advisor may amend this Trust under the following circumstances:
(A) Amendments may only be made if they would not be in violation of
any Loan Document or other agreement the Trust is subject to at the time of
such amendment.
(B) The Special Advisor may amend this Trust, provided that no such
amendment shall modify or delete the provisions which provide that:
(1) Only Larry J. Winget shall have the power to reduce or
inhibit the rights, duties and powers exercisable by him as Special
Advisor or reduce or inhibit his right under Section 3.2(E) to
reassume the position of Special Advisor.
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(2) Only Larry J. Winget, in his capacity as Special Advisor,
shall have the power to reduce or inhibit any of the rights, duties
and powers of the Beneficiary.
ARTICLE VIII
ARBITRATION
SECTION 8.1 ARBITRATION PROCEDURE
Except as provided for in Section 5.10, upon a dispute arising under this
Trust between or among the parties this Trust agreement, the Settlor,
Beneficiary, any individual Special Advisor or Trustee may cause the resolution
of the same by petitioning for an arbitration of the dispute.
(A) The Arbitrator shall be chosen in the following manner:
(1) The Arbitrator shall be full professor or associate
professor of law from the University of Michigan or Wayne State
University who is either currently teaching or has taught within the
past two calendar years one or more courses substantially covering one
or more of the following subjects: (i) contracts, (ii) trusts, (iii)
business organizations, or (iv) financial instruments.
(2) The party desiring arbitration shall determine (i) the names
of at least three (or such lesser number as may be available)
individuals with the above qualifications who are disinterested and
are available to make such arbitration determination within the time
constraints of the decision in dispute and (ii) the terms and
conditions which they require in order to make such a determination.
If three individuals meeting the above qualifications are not
available from the University of Michigan or Wayne State University,
then the party desiring arbitration shall seek additional available
individuals from the following law schools in the order listed: (a)
Harvard, (b) Yale, (c) Stanford, (d) Chicago, (e) Northwestern, (f)
Columbia, (g) Georgetown.
(3) The names of the potential Arbitrators and the terms and
conditions required by each shall be presented to the other party who
shall choose (within 24 hours of receiving such information) one of
them to make the arbitration decision.
(B) The cost of the arbitration procedure set forth herein shall be paid
by the Trust.
(C) The decision made by the Arbitrator shall be binding on the Settlor,
Beneficiary, Special Advisor and Trustee and shall be enforceable in any court
of competent jurisdiction.
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Provided, however, that nothing herein to the contrary withstanding,
the arbitration procedure shall not affect the authority of any court of
competent jurisdiction to exercise any equitable power of injunction,
restraining order, or specific performance or power to issue an emergency order
either pending the Arbitrator's decision or in lieu of the Arbitrator's
decision, in any question which arises out of or is concerned with the rights,
duties or powers of the Settlor, Beneficiary, Special Advisor or Trustee
hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 LIABILITY
The Settlor, the Trustee, the individual Special Advisor(s), and the
Beneficiary shall not incur any liability or be deemed to have violated any of
the provisions of this Trust as a result of any mistakes or errors in judgment
made in good faith and in the exercise of due care in connection with the Trust
business.
Each representation, warranty, undertaking and agreement made in the Loan
Documents on the part of the Trust or the Trustee shall be made and intended
not as a personal representation, warranty, undertaking and agreement by or for
the purpose or with the intention of binding the Settlor, the Trustee, any
individual Special Advisor(s), or the Beneficiary personally but is made and
intended for the purpose of binding only the Trust Estate held pursuant to this
Trust and shall be executed and delivered by the Trust and any person acting
for it or pursuant to its terms solely in the exercise of the powers expressly
conferred upon it under this Trust; and, except as specifically set forth in
the Loan Documents, no personal liability or responsibility shall be assumed
thereunder by nor shall the Loan Documents at any time be enforceable against
the Trustee or its successor in trust on account of the Loan Documents or any
representation, warranty, covenant, undertaking or agreement thereunder of the
Trustee, either expressed or implied, all such personal liability, if any,
being expressly waived. All liability thereunder shall be limited solely to
recourse against the assets of the Trust Estate held pursuant to this Trust.
SECTION 9.2 AGREEMENT BINDING
This Agreement shall be binding upon the parties hereto and upon their
heirs, executors, administrators, successors or assigns, and the parties hereto
agree for themselves and their heirs, executors, administrators, successors and
assigns to execute any and all instruments in writing which are or may become
necessary or proper to carry out the purpose and intent of this Agreement.
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SECTION 9.3 TITLES AND SUBTITLES
Titles of the Sections are placed herein for convenient reference only
and shall not to any extent have the effect of modifying, amending or changing
the express terms and provisions of this Trust.
SECTION 9.4 WORDS AND GENDER OR NUMBER
As used herein, unless the context clearly indicates the contrary, the
singular number shall include the plural, the plural the singular, and the use
of any gender shall be applicable to all genders.
SECTION 9.5 APPLICABLE LAW
This Trust shall be subject to and governed by the laws of the State of
Michigan.
SECTION 9.6 REGISTRATION
This Trust need not and shall not be registered with any Court unless the
Special Advisor deems it advisable to do so, or the laws of any State having
jurisdiction thereof do not permit the same to be exempted from registration.
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In witness whereof, this Amended and Restated trust agreement has been
executed as of the 16th day of February, 1994.
In the Presence of: Settlor and Beneficiary:
/s/ Kim McBride /s/ Larry J. Winget
-------------------------- --------------------------
LARRY J. WINGET
/s/ Betty Cormany
--------------------------
Trustee and Special Advisor:
/s/ Kim McBride /s/ Larry J. Winget
-------------------------- --------------------------
LARRY J. WINGET
/s/ Betty Cormany
--------------------------
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EXHIBIT A
TO: THE TRUSTEE OF THE VENTURE HOLDINGS TRUST
FROM: THE SPECIAL ADVISOR
PURSUANT TO THE AUTHORITY INVESTED IN THE UNDERSIGNED BY THE VENTURE HOLDINGS
TRUST, THE UNDERSIGNED HEREBY CERTIFIES THAT HE IS THE SPECIAL ADVISOR OF THE
VENTURE HOLDINGS TRUST AND THAT HAVING DETERMINED THAT IT IS NECESSARY,
CONVENIENT AND/OR PRUDENT FOR THE TRUSTEE TO EXERCISE CERTAIN DUTIES AS
HEREINAFTER SET FORTH, HEREBY DIRECTS THE TRUSTEE UNDER, ON BEHALF OF, AND IN
THE NAME OF THE TRUST TO DO THE FOLLOWING:
1. [SPECIFY]
DATED: the ____ day of ________, 199__.
SIGNED:
____________________________
Special Advisor
DATED: the ____ day of ________, 199__
CERTIFICATION OF THE RECEIPT OF DIRECTION [not required if Larry J. Winget is
Special Advisor]:
The Trustee hereby certifies that it has received the above mentioned
direction:
By:____________________
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