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EXHIBIT 4.3.3
SECOND AMENDMENT TO INDENTURE
THIS SECOND AMENDMENT to the Indenture, dated as of July 1, 1997, as
amended by the First Amendment to Indenture, and as supplemented by the First
Supplemental Indenture, each dated as of May 27, 1999, by and among Venture
Holdings Trust, a grantor trust organized under the laws of Michigan (the
"Trust"), Vemco, Inc., Vemco Leasing, Inc., Venture Industries Corporation,
Venture Holdings Corporation, Venture Leasing Company, Venture Mold &
Engineering Corporation, and Venture Service Company, each a Michigan
corporation (each an "Issuer" and, together with the Trust, the "Issuers") and
The Huntington National Bank, a national banking association, as Trustee (the
"Trustee") is made as of the 27th day of May, 1999 by and among the Issuers and
the Trustee.
Section 9.1 of the Indenture provides, among other things, that the
Issuers, when authorized by Board Resolutions (such term and all other
capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Indenture), and the Trustee may amend the Indenture,
without the consent of any Holder, for certain purposes, as set forth therein.
This Amendment is being entered into for the purposes set forth in Section
9.1(2) and has been duly authorized by the Special Advisor of the Trust and by
the Board of Directors of each other Issuer.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO THE INDENTURE
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
(a) Section 1.1 of the Indenture is hereby amended by deleting the
definition of "Beneficiary" and substituting therefor the following (italicized
text indicates changes from the current definition):
"Beneficiary" means (i) any beneficiary of the Trust while it is a trust or
(ii) any shareholder or holder of the Equity Interests of a successor
corporation or limited liability company after a Trust Contribution.
(b) Section 1.1 of the Indenture is hereby amended by deleting the
definition of "Board of Directors" and substituting therefor the following
(italicized text indicates changes from the current definition):
"Board of Directors" means (A) either the board of directors or managers of
any Issuer or Subsidiary, as the case may be, or any duly authorized committee
of either such board and (B), in
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the case of the Trust, the Special Advisor of the Trust; provided that (i), in
the event the Special Advisor's rights, duties and powers are assumed by the
Successor Special Advisor Group, "Board of Directors" means the Successor
Special Advisor Group of the Trust and (ii), in the event the Trust is
reorganized as a corporation or a limited liability company or a Trust
Contribution shall occur, "Board of Directors" means the board of directors or
managers or managing members of the successor corporation or limited liability
company.
(c) Section 1.1 of the Indenture is hereby amended by deleting the
definition of "Change of Control" and substituting therefor the following
(italicized text indicates changes from the current definition):
"Change of Control" means (i) any merger or consolidation of the Trust with
or into any person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of the Trust, on a
consolidated basis, in one transaction or a series of related transactions, if
immediately after giving effect to such transaction(s), any "person" or "group"
(as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable) other than an Excluded Person is or becomes the
"beneficial owner," directly or indirectly, of more than 40% of the total voting
power in the aggregate normally entitled to vote in the election of directors,
managers, or trustees, as applicable, of the transferee(s) or surviving entity
or entities and the Excluded Persons "beneficially own" a lesser percentage and
do not have the right or ability by voting power, contract or otherwise to elect
or designate for election a majority of such directors, managers or trustees, as
applicable, (ii) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) other
than an Excluded Person is or becomes the "beneficial owner," directly or
indirectly, of more than 40% of the total voting power in the aggregate of all
classes of Capital Stock of the Trust then outstanding normally entitled to vote
in elections of directors, managers or trustees and the Excluded Persons
"beneficially own" a lesser percentage and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of such directors, managers or trustees, as applicable, or (iii) during
any period of 12 consecutive months after the Issue Date, individuals who at the
beginning of any such 12-month period constituted the Board of Directors of the
Trust (together with any new directors whose election by such Board or whose
nomination for election by the equity holders of the Trust, (A) with respect to
Venture Holdings Trust was made pursuant to the terms of the Venture Trust
Instrument, and (B) with respect to Venture Holdings Corporation or another
successor to the Trust, or their respective successors, after the occurrence of
a Trust Contribution, (x) was approved by the Beneficiary of Venture Holdings
Trust on or before the date of the Trust Contribution, or (y) was approved by a
majority of the directors of the Trust whose appointment, election or nomination
to the Board of Directors was approved in accordance with the preceding clause
(x) or by this clause (y)) cease for any reason to constitute a majority of the
Board of Directors of the Trust then in office. Notwithstanding anything in this
definition to the contrary, a "Change of Control" shall not be deemed to have
occurred solely as a result of a transaction pursuant to which the Trust is
reorganized or reconstituted as a corporation or a limited liability company or
a Trust Contribution occurs in accordance with the provisions described under
Article V and no event which is otherwise a "Change of Control" above shall have
occurred.
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(d) Section 1.1 of the Indenture is hereby amended by deleting the
definition of "Fairness Committee" and substituting therefor the following
(italicized text indicates changes from the current definition):
"Fairness Committee" means a committee duly established pursuant to the
Venture Trust Agreement (or organizational, operating or charter documents of a
successor to the Trust) and the bylaws, organizational, operating or charter
documents, of each other Issuer, Guarantor and Subsidiary without whose approval
(and without the approval of a majority of its Independent members) the Trust,
an Issuer, a Guarantor or a Subsidiary shall not be authorized to enter into any
transaction or take any action which pursuant to the terms of this Indenture
requires approval of the Fairness Committee.
(e) Section 1.1 of the Indenture is hereby amended by deleting the
definition of "Officer" and substituting therefor the following (italicized text
indicates changes from the current definition):
"Officer" means, with respect to the Issuers, the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller or the Secretary or Assistant
Secretary, and in addition with respect to the Trust while it is a trust, the
Special Advisor under the Venture Trust Instrument.
(f) Section 1.1 of the Indenture is hereby amended by deleting the
definition of "Tax Distribution Amount" and substituting therefor the following
(italicized text indicates changes from the current definition):
"Tax Distribution Amount" means, in respect of any period after the Issue
Date during which the Trust is an entity described in Sections 1361(a)(1),
1361(c)(2) or Section 1361(d) of the Code, or, following a Trust Contribution,
is a limited liability company that is disregarded as an entity separate from
its owners under the Code, an amount, described in good faith by such Issuers'
independent public accountants, which shall be a nationally recognized
accounting firm, equal to the sum of (x) the amount of intangibles tax actually
imposed on the Beneficiary of the Trust in respect of Trust Tax Distributions
for such period and (y) (a) the sum of the highest marginal federal income tax
rate and highest state and local income tax rate applicable to the Beneficiary
of the Trust on income of the Issuers which are S Corporations for federal,
state or local income tax purposes for such period, expressed as a percentage,
multiplied by (b) such Issuers' taxable income for such period computed taking
into account, without limitation, the deduction for single business and
franchise tax actually imposed on such Issuers; provided that (i) the foregoing
shall be determined by giving effect to the deduction of relevant state and
local income and intangibles taxes for purposes of determining federal income
taxes, such deduction to be computed based on the state and local income tax
rates applicable in clause (y) (a) hereof and the amount of intangibles tax
determined under clause (x) hereof, and (ii) the foregoing shall be reduced by
the amount of cumulative tax losses of such Issuers from any previous period (to
the extent not previously utilized in computing the Tax Distribution Amounts)
since the Closing Date and any investment tax credits and other tax credits
generated by such Issuers.
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ARTICLE IV
COVENANTS
(a) Section 4.3 of the Indenture is hereby amended by deleting the
paragraph numbered (iii)(a) in the second paragraph thereof and substituting
therefor the following (italicized text indicates changes from the current
paragraph):
"(iii) (a) so long as the Trust is a limited liability company
that is disregarded as an entity separate from its owners under the
Code following a Trust Contribution or is an entity described in
Section 1361(a)(1), 1361(c)(2) or 1361(d) of the Code or any similar
provision of state or local law, (x) the Trust shall be permitted to
distribute to the Beneficiary of the Trust (or pay compensation to the
Beneficiary of the Trust in lieu of such distributions) all amounts
distributed to the Trust pursuant to the following clause (y), and (y)
the Issuers (other than the Trust) in the aggregate shall be permitted
to make payments to the Trust in cash as follows, calculated before
giving effect to such payments (such payments to be referred to
hereinafter as "Trust Tax Distributions"):
(1) on (or within 15 days prior to) each April 15, June 15, Sep
tember 15 and January 15 an amount equal to the minimum federal and
state estimated quarterly income and intangible tax payments required
to be made on such date by the Beneficiary of the Trust in order to
prevent underpayment of estimated income tax pursuant to the rules set
forth in Sections 6654(b) and 6654(d)(1) of the Code or their
successors or supplements and any similar provision of applicable
state income and intangible tax law for any state with respect to
which the Issuers qualify as S corporations for state law purposes,
such amount to be calculated as though such Beneficiary's only income
and loss in each such quarter was an amount equal to the sum of the
taxable income and loss of the Issuers which are S corporations. The
foregoing amounts may be paid so long as (I) such Issuer is and was an
S corporation for such quarter, as defined in Section 1361 of the Code
or its successors and supplements, (II) no Default or Event of Default
exists and is continuing or would thereby occur, (III) special tax
counsel to the Issuers delivers to the Trustee, prior to the payment
in respect of such quarter, an opinion substantially in the form
attached hereto as Exhibit C-1 (or, if the Beneficiary of the Trust is
disabled or unavailable as described in Section 3 of the Venture Trust
Instrument, such special tax counsel delivers to the Trustee, prior to
the payment in respect of such quarter, an opinion substantially in
the form attached hereto as Exhibit C-2), (IV) the Issuers have not
received a private ruling or a National Office Technical Advice
Memorandum from the Internal Revenue Service or, in respect of
distributions made for state income tax purposes, a similar ruling
from any applicable state or local taxing authority, that the Trust is
not a limited liability company that is disregarded as an entity
separate from its owners under the Code or an entity described in
Section 1361(a)(1), 1361(c)(2)
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or 1361(d) of the Code, or their successors and supplements, or any
similar provision of state or local law or there has been a final
"determination" (as used in Section 1313 of the Code) or similar state
determination to the same effect, and (V) the Issuers have complied
with the terms of clauses (b), (c) and (d) below. The amount that is
distributable pursuant to clause (y) by each Issuer which is an S
corporation in respect of each of the quarters described above shall
be that proportion of the amount of the Trust Tax Distribution for
each such quarter which such Issuer's Tax Income for such quarter
bears to the aggregate Tax Income of all the Issuers which are S
corporations in such quarter. For purposes of the foregoing, "Tax
Income" shall mean one-quarter of an Issuer's actual taxable income
for the year prior to that with respect to which the calculations
described above are being made; and
(2) no later than September 15 of each year, the Issuers shall
cause their tax advisors, which shall be a nationally recognized
accounting firm, to deter mine the actual amount of federal and state
income tax liability of the Beneficiary of the Trust for the previous
calendar year computed as if the only income and loss of the
Beneficiary in such year was an amount equal to the sum of the taxable
income and loss of the Issuers which are S corporations (the "Actual
Tax Amount"). The computation of the Actual Tax Amount made by the
Issuers' tax advisors shall be reviewed and reported on by a
nationally recognized accounting firm, which may be the Issuers' tax
advisors. If (A) the Actual Tax Amount, as determined by such tax
advisor, is less than the aggregate estimated amounts paid pursuant to
clause (1) above in respect of such year (the "Distributed Amounts")
and/or (B) if 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, the Issuers
shall cause the Beneficiary to the Trust, within 75 days after such
difference is determined, to reimburse to the Trust, with no
obligation on the part of the Trust to such Beneficiary with respect
to such reimbursement, the excess of the Distributed Amounts over the
Actual Tax Amount, as finally determined by the 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 any amounts then or subsequently
owed to the Beneficiary by reason of clause (1) above). If the excess
of the Distributed Amounts over the Actual Tax Amount, as finally
determined by the tax advisors, is reimbursed to the Trust after June
14 of such year, such excess shall bear interest from June 15 to the
date preceding the date it is paid at an interest rate equal to the
overpayment rate established under Section 6621(a)(1) of the Code or
its successor and supplements. Such reimbursed amount (if any) shall
then be reimbursed by the Trust to each of the Issuers that first
distributed such amounts to the Trust. If the Actual Tax Amount, as
determined by the tax advisors, the Internal Revenue Service or court,
as the case may be, is greater than the Distributed Amounts, each of
the Issuers which are S corporations shall distribute to
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the Trust, and the Trust shall distribute to the Beneficiary, its
share of the excess of the Actual Amount over the Distributed Amounts,
within 75 days after such difference is determined, provided that no
such distribution shall be made by any of the Issuers unless a
nationally recognized accounting firm shall have reviewed and reported
on the computation of the Actual Tax Amount made by the tax advisors,
which may be the same nationally recognized accounting firm that acts
as the Issuers' tax advisors. If any payment is made (i) in
contravention of clause (1) above and paid to the Beneficiary of the
Trust pursuant to clause (x) above or (ii) in contravention of the
proviso to the immediately preceding sentence and paid to the
Beneficiary of the Trust pursuant to the immediately preceding
sentence, the Issuers shall cause the Beneficiary of the Trust to
reimburse to each of the Issuers making such prohibited payment the
amount of such prohibited payment;
(b) Section 4.3 of the Indenture is hereby amended by deleting the
paragraph numbered (iii)(c) in the second paragraph thereof and substituting
therefor the following (italicized text indicates changes from the current
paragraph):
(c) if at any time the Issuers receive notification from the Internal
Revenue Service that any Issuer does not qualify as an S corporation under
Section 1361(a)(1) of the Code, (x) no further distributions shall be made
pursuant to clause (a)(1) above by such Issuer, and (y) the Issuers shall cause
the Beneficiary of the Trust either (A) to reimburse the Trust all amounts paid
by that Issuer pursuant to clause (a)(1) and clause (a)(2) above with respect to
all periods as to which that Issuer did not qualify as an S corporation, with no
obligation on the part of the Trust to such Beneficiary with respect to such
reimbursement, and the Trust shall then pay such reimbursement to that Issuer,
or (B) to reimburse such Issuer such payments directly, within 75 days after
such requirement for reimbursement is determined; provided that no such
reimbursement shall be required to the extent to which such distribution would
otherwise have been permitted, after taking into account interest, penalties and
additions to tax imposed on such Issuer as a result of its failure to qualify as
an S corporation under Section 1361(a)(1) of the Code, or its successors and
supplements. If the Issuers at any time receive notification from the Internal
Revenue Service that the Trust is not a limited liability company that is
disregarded as an entity separate from its owners under the Code or an entity
described in Section 1361(a)(1), 1361(c)(2) or 1361(d), or their successors and
supple ments, as the case may be, of the Code, or if the Issuers fail to receive
a favorable response to a ruling request described in clause (b) within 360 days
after the disability or unavailability of Larry J. Winget, the Issuers shall
take the actions described in clauses (x) and (y) of the preceding sen tence;
and
ARTICLE V
SUCCESSOR CORPORATION
Article V of the Indenture is hereby amended by deleting Article V in its
entirety and substituting therefor the following (italicized text indicates
changes from the current Article V):
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Section 5.1 Limitation on Merger, Sale or Consolidation.
The Trust will not consolidate with or merge with or into another person or
sell, lease, convey or transfer all or substantially all of its assets (computed
on a consolidated basis), whether in a single transaction or a series of related
transactions, to another person or group of affiliated persons or adopt a plan
of liquidation, unless (i) either (a) the Trust is the continuing entity or (b)
the resulting, surviving or transferee entity or, in the case of a plan of
liquidation, the entity which receives the greatest value from such plan of
liquidation is a corporation or limited liability company organized under the
laws of the United States, any state thereof or the District of Columbia and
expressly assumes by supplemental indenture all of the obligations of the Trust
in connection with the Notes and the Indenture; (ii) no Default or Event of
Default shall exist or shall occur immediately after giving effect on a pro
forma basis to such transaction; (iii) immediately after giving effect to such
transaction on a pro forma basis, the Consolidated Net Worth of the consolidated
surviving or transferee entity or, in the case of a plan of liquidation, the
entity which receives the greatest value from such plan of liquidation is at
least equal to the Consolidated Net Worth of the Trust immediately prior to such
transaction and (iv) immediately after giving effect to the transaction on a Pro
Forma Basis, the consolidated resulting, surviving or transferee entity or, in
the case of a plan of liquidation, the entity which receives the greatest value
from such plan of liquidation would immediately thereafter be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Debt Incurrence Ratio
set forth in Section 4.10.
Notwithstanding anything contained in this Indenture to the contrary, the
Trust is permitted to contribute all of the Equity Interests of the Subsidiaries
then held by the Trust (other than the Equity Interests of the Subsidiary which
is to receive such contribution from the Trust) to Venture Holdings Corporation
or other successor to the Trust (a "Trust Contribution"), provided that (A) any
successor or surviving corporation or limited liability company is organized and
existing under the laws of the United States, any state thereof or the District
of Columbia, (B) such contribution or reorganization is not materially adverse
to Holders of the Notes; it being understood, however, that such contribution or
reorganization shall not be considered materially adverse to Holders of the
Notes solely because the successor or surviving corporation or limited liability
company is subject to income taxation as a corporate entity, (C) immediately
after giving effect to such transaction, no Default or Event of Default exists,
(D) the actions comprising such contribution or reorganization (e.g., the
contribution of Capital Stock of the Subsidiaries, or the issuance of Capital
Stock of the corporation or limited liability company in exchange for assets of
or Equity Interests in the Trust or in exchange for Capital Stock of a
corporation or limited liability company holding such Equity Interests, or the
merger or consolidation of such corporations or limited liability companies)
will not themselves directly result in material income tax liability to the
successor or surviving corporation or limited liability company, (E) the
successor or surviving corporation or limited liability company has assumed all
obligations of the Trust, pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee, under the Notes and hereunder and (F)
Holders of the Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such contribution or reorganization and will be
subject to federal income tax on the same amounts, in the same manner,
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and at the same time as would have been the case if such contribution or
reorganization had not occurred. If the successor or surviving corporation or
limited liability company after a Trust Contribution is not a corporation
described in Section 1361(a)(1) of the Code or a limited liability company that
is disregarded as an entity separate from its owners under the Code, the Trust's
ability to make Trust Tax Distributions must terminate prior to such
contribution or reorganization (except with respect to tax distributions in
respect of taxable periods ending on or prior to the date such contribution or
reorganization is effective for relevant tax purposes), other than tax
distributions in respect of Beneficiaries' income tax liability that results
from the actions comprising such contribution or reorganization. The Trust shall
deliver to the Trustee prior to such contribution or reorganization an officers'
certificate covering clauses (A) through (F) and the preceding sentence of this
paragraph, stating that such contribution or reorganization and such
supplemental indenture comply with the Indenture, and an opinion of counsel
covering clauses (A), (D), (E) and (F) above and the preceding sentence of this
paragraph.
Neither any Guarantor nor any Issuer (other than the Trust) shall
consolidate or merge with or into (whether or not such Guarantor or Issuer is
the surviving person) another person (other than an Issuer or Guarantor) unless
(i), subject to the provisions of Section 11.4, the person formed by or
surviving any such consolidation or merger (if other than such Guarantor or
Issuer) assumes all the obligations of such Guarantor or Issuer pursuant to a
supplemental indenture in form reasonably satisfactory to the Trustee, pursuant
to which such person shall unconditionally guarantee or assume, on a senior
basis, all of such Guarantor's or Issuer's obligations under the Indenture on
the terms set forth in the Indenture; and (ii) immediately before and
immediately after giving effect to such transaction on a pro forma basis, no
Default or Event of Default shall have occurred on a Pro Forma Basis.
On or prior to the consummation of the proposed transaction, the Company
shall have delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or disposition and such supplemental indenture
executed in connection therewith comply with this Indenture. The Trustee shall
be entitled to conclusively rely upon such Officers' Certificate and Opinion of
Counsel.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of all or substantially all of the properties and assets of one or
more Subsidiaries, the Trust's interest in which constitutes all or
substantially all of the properties and assets of the Trust shall be deemed to
be the transfer of all or substantially all of the properties and assets of the
Trust.
Section 5.2 Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of all or substantially
all of the assets of the Trust or consummation of a plan of liquidation in
accordance with the foregoing, the successor corporation or limited liability
company formed by such consolidation or into which the Trust is merged or to
which such transfer is made or, in the case of a plan of liquidation, the entity
which receives the greatest value from such plan of liquidation shall succeed
to, and be substituted for, and
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may exercise every right and power of, the Trust under the Indenture with the
same effect as if such successor corporation or limited liability company had
been named therein as an Issuer, and the Trust shall be released from the
obligations under the Notes and the Indenture except with respect to any
obligations that arise from, or are related to, such transaction.
Section 2. GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS AMENDMENT.
Section 3. HEADINGS
The Headings of the Sections of this Amendment have been inserted for
convenience of reference only, are not to be considered a part of this Amendment
and shall in no way modify or restrict any of the terms or provisions hereof.
Section 4. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Amendment. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 5. THE TRUSTEE.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Amendment or for or in respect of
the recitals contained herein, all of which recitals are made solely by the
Issuers.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered, all as of the date first written above.
VENTURE HOLDINGS TRUST
VEMCO, INC.
VEMCO LEASING, INC.
VENTURE INDUSTRIES CORPORATION
VENTURE HOLDINGS CORPORATION
VENTURE LEASING COMPANY
VENTURE MOLD & ENGINEERING
CORPORATION
VENTURE SERVICE COMPANY
By: /s/ MICHAEL G. TORAKIS
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Michael G. Torakis, President
THE HUNTINGTON NATIONAL BANK
By: /s/ RUTH F. SOWERS
--------------------------------------
Authorized Signer
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