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EXHIBIT 10.2.1
SCHEDULE
to the
MASTER AGREEMENT
dated as of May 27, 1999 between
VENTURE HOLDINGS COMPANY LLC
("Party A")
and
THE FIRST NATIONAL BANK OF CHICAGO
("Party B")
1. Termination Provisions
(a) "SPECIFIED ENTITY" means:
(i) in relation to Party A, for purposes of Sections 5(a)(v),
5(a)(vi), 5(a)(vii) and 5(b)(iv): all Affiliates excluding all
Unrestricted Subsidiaries as defined in the Indenture; and
(ii) in relation to Party B: none specified.
"Indenture" means that certain Indenture dated as of July 1, 1997 among
Party A, Vemco, Inc., Vemco Leasing, Inc., Venture Industries
Corporation, Venture Holdings Corporation, Venture Leasing Company,
Venture Mold & Engineering Corporation and Venture Service Company and
The Huntington.
(b) "DEFAULT UNDER SPECIFIED TRANSACTION" excludes any default under a
Specified Transaction if caused solely by the general unavailability of
the currency in which payments under such Specified Transaction are
denominated due to exchange controls or other governmental action.
(c) "CROSS DEFAULT" will apply to Party A and shall not have its meaning as
defined in Section 5(a)(vi) of this Agreement but shall instead mean
any default (however described) under the Credit Agreement (hereinafter
defined), and will not apply to Party B.
(d) "CREDIT EVENT UPON MERGER" applies to Party A.
(e) "AUTOMATIC EARLY TERMINATION" shall not apply to either party;
provided, however, that Automatic Early Termination will apply to a
party ("X") from and including the date, if any (i) on which X is or
becomes organized in a jurisdiction other than that which it represents
as its jurisdiction of organization (in this Agreement or otherwise) as
of the
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date of this Agreement (the "Original Jurisdiction") or (ii) as of
which, due to a change in, or current interpretation of, the insolvency
laws (statutory, common or other) of the Original Jurisdiction
applicable to X, a substantial likelihood exists that the designation
by the other party of an Early Termination Date following the
occurrence of an Event of Default with respect to X under Section
5(a)(vii) would not be recognized or upheld by the relevant courts.
(f) "Market Quotation" and the "Second Method" apply if the Early
Termination Date results from a Termination Event.
"LOSS" and the "SECOND METHOD" apply if the Early Termination Date
results from an Event of Default.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) "MARKET QUOTATION" in respect of any Terminated Transaction that is, or
is subject to, an unexercised option shall be determined such that the
quotation obtained from Reference Market-makers for a Replacement
Transaction takes into account, or is made in respect of, the economic
equivalent of the right or rights granted pursuant to such option.
II. TAX REPRESENTATIONS
(a) Party A is a limited liability company organized under the laws of
Michigan.
(b) Party B is a national banking association organized under the laws of
the United States of America.
(c) Payer Tax Representations: None specified.
(d) Payee Tax Representations: None specified.
III. DOCUMENTS
Documents to be delivered by each party (the "Provider"):
(i) upon execution of this Agreement:
(A) evidence reasonably satisfactory to the other party
of the Provider's authority to execute, deliver and
perform under this Agreement; and
(B) evidence reasonably satisfactory to the other party
of the authority and genuine signature of the
individual(s) executing this Agreement on behalf of
the Provider;
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(ii) within thirty days after written demand:
(A) an opinion of counsel in relation to the
representations made by the Provider under Section
3(a), in form and substance reasonably satisfactory
to the other party;
(B) evidence reasonably satisfactory to the other party
of the authority and genuine signature of the
individual(s) executing any Confirmations entered
into from time to time hereunder on behalf of the
Provider; and
(C) copies of audited, publicly available financial
statements or call reports of the Provider (or, as
appropriate, in which the Provider's financial
position is consolidated and reported together, with
that of certain of its Affiliates).
The Provider hereby makes the representation set forth in Section 3(d)
of the Agreement with respect to each document delivered under Part III
of this Schedule.
IV. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES.
To Party A: To Party B:
VENTURE HOLDINGS THE FIRST NATIONAL BANK OF
COMPANY LLC CHICAGO
34501 Harper Clinton Township One First National Plaza
Fraser, Ml 48O26-0278 Chicago, Illinois 60670
Attention: Jim Butler Attention: Risk Insurance Division
VP of Finance & CFO Suite 0045
Facsimile Number: 810-294-1960 Facsimile Number 312-732-5645
Telephone Number: 910-296-9819
Section 12(a) is amended by changing the words "may not be given" appearing in
the second line to "shall not be effective if given".
(b) PROCESS AGENT. If a party becomes organized outside of the United
States of America, then such party shall, promptly upon written demand
by the other party, irrevocably appoint an agent for service of process
in the United States of America reasonably satisfactory to the other
party and provide the other party with a copy of such agent's written
acceptance of such appointment.
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(c) OFFICES. Section 10(a) applies. Without limiting the effect of such
designation, the obligations of a party under any Transaction shall be
the same as if the party had entered into such Transaction through its
home or head office.
(d) MULTIBRANCH PARTY.
(i) Party A is not a Multibranch Party.
(ii) Party B is a Multibranch Party and may make or receive
payments through any of its offices..
(e) "CALCULATION AGENT" means Party B. The Calculation Agent's calculations
and determinations shall be made in good faith, in a commercially
reasonable manner and be binding, in the absence of manifest error.
(f) "CREDIT SUPPORT DOCUMENT" means:
(i) in relation to Party A, each of the following documents and
any other document which by its terms secures, guarantees or
otherwise supports Party A's obligations hereunder from time
to time: the Collateral Documents and the Guaranties, as
defined in the Credit Agreement; and
(ii) in relation to Party B, each of the following documents and
any other document which by its terms secures, guarantees or
otherwise supports Party B's obligations hereunder from time
to time: None specified.
Party A represents to Party B at all times hereunder that its
obligations under this Agreement remain secured under the Credit
Support Document(s).
(g) "CREDIT SUPPORT PROVIDER" means:
(i) in relation to Party A: None specified.
(ii) in relation to Party B: None specified.
(h) Governing Law.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAW
DOCTRINE
(i) WAIVER OF JURY TRIAL.
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EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION.
(j) Netting of Payments. Section 2(c)(ii) shall apply; provided that either
party may cause payments due on the same day in the same currency
(between the same Offices) but under different Transactions to be
discharged and replaced with a single, netted payment obligation by
providing, the other party with a written statement detailing the
calculation of such net amount payable not later than two Business Days
prior to the relevant due date.
(k) SET-OFF
(i) Any amount (the "Early Termination Amount") payable to one
party (the "Payee") by the other party (the "Payer") under
Section 6(e), in circumstances where there is a Defaulting
Party or one Affected Party in the case where a Termination
Event under Section 5(b)(iv) has occurred, will, at the option
of the party ("X") other than the Defaulting Party or the
Affected Party (and without prior notice to the Defaulting
Party or the Affected Party), be reduced by its set-off
against any amount(s) (the "Other Agreement Amount") payable
(whether at such time or in the future or upon the occurrence
of a contingency) by the Payee to the Payer or any of the
Payer's Affiliates (irrespective of the currency, place of
payment or booking office of the obligation, the "Other
Payee") under any other agreement(s) between the Payee and the
Other Payee or instrument(s) or undertaking(s) issued or
executed by one such entity to, or in favor of, the other (and
the Other Agreement Amount will be discharged promptly and in
all respects to the extent it is so set-off). X will give
notice to the other party of any set-off effected under this
Part IV(k).
(ii) For this purpose, either the Early Termination Amount or the
Other Agreement Amount (or the relevant portion of such
amounts) may be converted by X into the currency in which the
other is denominated at the rate of exchange at which such
party would be able, acting in a reasonable manner and in good
faith, to purchase the relevant amount of such currency.
(iii) If an obligation is unascertained, X may in good faith
estimate that obligation and set-off in respect of an
estimate, subject to the relevant party accounting to the
other when the obligation is ascertained.
(iv) Nothing in this Part IV(k) shall be effective to create a
charge or other security interest. This Part IV (k) shall be
without prejudice and in addition to any right of set-off,
combination of accounts, lien or other right to which any
party is at any time otherwise entitled (whether by operation
of law, contract or otherwise).
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(v) If the Payer is a Non-defaulting Party and the Payee is a
Defaulting Party, then it shall be a condition precedent to
the Payer's obligation to pay the Early Termination Amount to
the Payee that all Other Agreement Amounts have been paid in
full or satisfied by offset as set forth above.
(1) RECORDED CONVERSATIONS. Each party may electronically record any and
all telephone conversations between itself and the other party in
connection with this Agreement (including any Transaction) and agrees
that any such recordings may be submitted in evidence to any court or
in any proceeding for the purpose of establishing any matters pertinent
thereto.
(m) INCORPORATION OF PROTOCOL TERMS. The parties agree that the definitions
and provisions contained in Annexes I to 5 and Section 6 of the EMU
Protocol published by the International Swaps and Derivatives
Association, Inc. on 6th May, 1998 are incorporated into and apply to
this Agreement. References in those definitions and provisions to any
"ISDA Master Agreement" will be deemed to be referenced to this
Agreement.
(n) SECTION REFERENCES. "Section" means, unless otherwise indicated, a
section of this Agreement appearing in the ISDA printed form.
(o) "CREDIT AGREEMENT" means that certain Credit Agreement to be entered
into on or about May 26, 1999, among Party A, as the Borrower, the
lenders named therein, as the Lenders, and Party B as the
Administrative Agent, as the same may be amended from time to time in
accordance with its terms, but without regard to any termination or
cancellation thereof, whether by reason of payment of all indebtedness
incurred thereunder or otherwise, and any waiver or consent given
thereunder with respect to the provisions thereof shall be deemed to be
a waiver or consent given with respect to such provisions as such
provisions have been incorporated herein by reference; provided,
however, that until such Credit Agreement is executed and delivered,
the term "Credit Agreement" as used herein shall be deemed to refer to
that certain Amended & Restated Credit Agreement dated as of July 9,
1997, among Party A, as a Borrower, the Borrowing Subsidiaries, the
lenders named therein, as the Lenders, the Co-Agents and NBD Bank, as
the Agent, but without regard to any termination or cancellation
thereof, whether by reason of payment of all indebtedness incurred
thereunder or otherwise, unless such agreement is terminated and
replaced by the Credit Agreement to be entered into on or about May 26,
1999, with Party B as the Administrative Agent.
V. Additional Terms for FX Transactions and Currency Options
(a) Except as modified and/or supplemented below, the provisions of the
199E; ISDA FX and Currency Option Definitions as published by the
International Swap and Derivatives Association, Inc., the Emerging,
Markets Traders Association, Inc. and The Foreign Exchange Committee
(the "FX Definitions") are hereby incorporated herein in their
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entirety and shall apply to FX Transactions, Currency Obligations and
Currency Option Transactions entered into by the Offices of the parties
specified in Part 4(d) above. FX Transactions, Currency Obligations and
Currency Option Transactions are each deemed to be Transactions
pursuant to the ISDA Master Agreement.
Regardless of any express provision or provisions to the contrary in
respect of an FX Transaction or Currency Option (i) all FX Transactions
and all Currency Options entered into between the parties prior to, on,
or (until agreed otherwise by the parties) after the date of this
Agreement shall constitute "Transactions" as referred to in this
Agreement, and (ii) all Confirmations howsoever described and whether
by means of electronic messaging system, letter, telex, facsimile or
otherwise in respect of FX Transactions and Currency Options shall
constitute "Confirmations" as referred to in this Agreement even where
not so specified in the Confirmation. Such Confirmations will
supplement, form a part of and be subject to this Agreement.
(b) The following amendments are made to the FX Definitions:
(1) Article 1 of the FX Definitions is hereby amended by adding
the following Sections:
"SECTION 1.27. CURRENCY. "Currency" means money denominated in
the lawful currency of any country or any composite currency.
"SECTION 1.28. CURRENCY OBLIGATION. "Currency Obligation"
means the undertaking of a party hereunder to deliver an
amount of Currency, including a netted Currency Obligation,
and including any Currency Obligation previously entered into
by the parties."
"SECTION 1.29. VALUE DATE. "Value Date" means the Settlement
Date."
(2) Section 1.24 of the FX Definitions is hereby amended by adding
a comma after the words "Settlement Date" in the second line
thereof then adding the words "Value Date" after the comma and
by deleting the comma after the word confirmation" in clause
(a) and adding the following immediately thereafter:
"provided, however if no date is specified, Settlement Date"
means, in respect of (i) an American Style Option, the Spot
Date of the Currency Pair on the Exercise Date of such Option;
and (ii) a European Style Option, the Spot Date of the
Currency Pair on the Expiration Date of such Currency Option;
and, where market practice in the relevant foreign exchange
market in relation to the two Currencies involved provides for
delivery of one Currency on one date which is a Business Day
in relation to that Currency but not the other Currency and
for delivery of the
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other Currency on the next Business Day in relation to that
other Currency, "Settlement Date" means such two Business
Days."
(3) Notwithstanding any specification as to the Calculation Agent,
the definition of "Spot Rate" in Section 1. 16 (e) of the FX
Definitions is hereby amended by deleting everything after the
phrase "good faith" and by adding to the end thereof ": (i) by
the Non-Defaulting Party or the non-Affected Party (if there
is only one Affected Party) for purposes of Section 6(c) of
the Agreement, and (ii) by the Seller for Deliverable and
Non-Deliverable Currency Options Transactions and the
Calculation Agent for Non-Deliverable FX Transactions.
(4) Section 2.2 of the FX Definitions is hereby amended by adding
the following (after subsection (b)):
"(c) POTENTIAL EVENT OF DEFAULT. If an Event of Default or a
Potential Event of Default has occurred and is continuing and
an Early Termination Date has not been designated by the
Non-defaulting Party, the Non-defaulting Party may, by written
notice, specify that any or all FX Transactions being settled
while such Event of Default or Potential Event of Default is
continuing may be settled in accordance with Section 2.2(b)
and upon such notice becoming effective, the parties shall be
deemed to have elected to have the specified FX Transactions
settle in accordance with Section 2.2(b) unless and until the
Event of Default or Potential Event of Default is not longer
continuing.
(5) Section 3.5 of the FX Definitions is hereby amended by
deleting the word "facsimile," in the third line thereof.
(6) Section 3.1 of the FX Definitions is hereby amended by adding
the following sub section (h):
"(h) SPOT DATE. "Spot Date" means the spot delivery day of the
relevant Currency pair as generally used by the relevant
foreign exchange market."
(7) Section 3.7 of the FX Definitions is hereby amended by adding
the following subsection (d):
"(d) POTENTIAL EVENT OF DEFAULT. If an Event of Default or a
Potential Event of Default has occurred and is continuing and
an Early Termination Date has not been designated by the
Non-defaulting Party, the Non-defaulting Party may by written
notice, specify that any or all Currency Option Transactions
being settled while such Event of Default or Potential Event
of Default is continuing shall be settled in accordance with
Section 2.2(b) and upon such notice becoming effective, the
parties shall be deemed to have elected to have the specified
Currency Option Transactions
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settle at the In-the-Money Amount (expressed in U.S. Dollars)
unless and until the Event of Default or Potential Event of
Default is not longer continuing."
(8) Section 3.4 of the FX Definitions is hereby amended by adding
the following new subsections (c):
"(c) FAILURE TO PAY PREMIUM. If a Premium is not received on
the Premium Payment Date, the Seller may elect: (i) to accept
a late payment of such Premium; to give written notice of such
non-payment and, if such payment shall not be received within
two (2) Banking Days (for the city in which the Office of the
Buyer is located) of such notice, treat the related Currency
Option Transaction as void; or (iii) to give written notice of
such non-payment and, if such payment shall not be received
within two (2) Banking Days (for the city in which the Office
of the Buyer is located) of such notice, treat such
non-payment as an Event of Default under Section 5(a)(i). If
the Seller elects to act under clause (i) or (ii) of the
preceding sentence the Buyer shall pay all out-of-pocket costs
and actual damages incurred in connection with such unpaid or
late Premium or void Currency Option Transaction, including
without limitation, interest on such Premium in the same
currency as such Premium from and including the Premium
Payment Date to but excluding, that date on which the Seller
actually receives the last payment in the Currency specified
for such Premium at the Non-Default Rate and any other losses,
costs or expenses incurred by the Seller in connection with
such terminated Currency Option Transaction to compensate
Seller for its loss of bargain, cost of funding or the loss
incurred as a result of terminating, liquidating obtaining or
re-establishing a delta hedge or related trading position with
respect to such Currency Option Transaction."
(c) The following amendment is made to the Agreement:
(1) Section 1(b) of the Agreement is hereby amended by adding the
following at the end thereof:
"; provided, however, that in the case of an FX Transaction,
the provisions of this Agreement (excluding the previous part
of this Section l(b)) shall prevail, and the Confirmation
shall not modify the other terms of this Agreement."
(d) NETTING, OFFSET AND DISCHARGE WITH RESPECT TO CURRENCY OPTION
TRANSACTIONS. Section 2(c) of the Agreement shall not apply to Currency
Option Transactions. The provisions of this Part 5(o) of the Schedule
shall apply to Currency Option Transactions in lieu thereof
(1) If, on any date, and unless otherwise mutually agreed by the
parties, Premium would otherwise be payable hereunder in the
same currency between a pair of offices of the parties, then,
on such date, each party's obligation to make payment of any
such Premium will be automatically satisfied and discharged
and, if the aggregate
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Premium(s) that would otherwise have been payable by such
Office of one party exceeds the aggregate Premium(s) that
would otherwise have been payable by such Office for the other
party, replaced by an obligation upon the party by whom the
larger aggregate Premium(s) would have been payable to pay the
other party the excess of the larger aggregate Premium(s) over
the smaller aggregate Premium(s) and if the Premiums are
equal, no payment shall be made.
(2) If, on any date, and unless otherwise mutually agreed by the
parties, amounts other than Premium payments would otherwise
be payable hereunder in the same currency between a pair of
Offices of the parties, then, on such date, each party's
obligation to make payment of any such amount will be
automatically satisfied and discharged and, if the aggregate
amount that would otherwise have been payable by such Office
of one party exceeds the aggregate amount that would otherwise
have been payable by such Office of the other party, replaced
by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay the other party the
excess of the larger aggregate amount over the smaller
aggregate amount.
(3) Unless otherwise agreed, any Call or any Put written by a
party will automatically be terminated and discharged, in
whole or in part, as applicable, against a Call or a Put,
respectively, written by the other party, such termination and
discharge to occur automatically upon payment in fall of the
last Premium payable in respect of such Currency Option
Transactions; provided that such termination and discharge may
only occur in respect of Currency Option Transactions.
(i) each being with respect to the same Put Currency and
the same Call Currency;
(ii) each having the same Expiration Date and Expiration
Time;
(iii) each being the same style, i.e., either both being
American Style Options or both being European Style
Options;
(iv) each having the same Strike Price;
(v) neither of which shall have been exercised by
delivery of a Notice of Exercise;
(vi) which are entered into by the same Offices of the
Parties; and
(vii) which are otherwise identical in terms that are
material for the purpose of offset and discharge;
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and, upon the occurrence of such termination and discharge, neither
party shall I have any further obligation to the other party in respect
of the relevant Currency Option Transactions or, as the case may be,
parts thereof so terminated and discharged. In the case of a partial
termination and discharge (i.e., where the relevant Currency Option
Transactions are for different amounts of the Currency Pair), the
remaining portion of the Currency Option Transaction which is partially
discharged and terminated shall continue to be a Currency Option
Transaction for purposes of this Agreement.
(e) NETTING OF FX TRANSACTIONS. The provisions of Section 2(c) of the
Agreement shall not apply to FX Transactions. The provisions of this
Part 5 (e) of the Schedule shall apply to FX Transactions in lieu
thereof
(i) If on any Settlement Date more than one Currency Obligation is
owing between a pair of Netting Offices, then each party shall
aggregate the amounts of such Currency Obligations owed by it.
Only the difference between these aggregated Currency
Obligations shall be delivered, by the party owing the larger
amount making payment to the other party. If the. aggregate
amounts are equal, no delivery of that Currency shall be made.
(ii) NETTING OFFICE. "Netting Office" means, for the purposes of
Section 2.2(d) with respect to:
Party A: Fraser, Michigan
Party B: Chicago Head Office, London, Tokyo, Hong Kong
and Sydney.
(f) For the purpose of Section 6(e) of the Agreement for FX Transactions,
Currency Obligations and Currency Option Transactions only: the Second
Method and Loss will apply.
(g) With respect to any FX Transaction or Currency Option Transaction, the
Following provisions relating to Impossibility and Illegality shall
apply:
(1) ILLEGALITY WITH RESPECT TO FX TRANSACTIONS AND CURRENCY
OPTIONS. If an Illegality occurs and any Affected Transaction
is a FX Transaction or a Currency Option, then with respect to
such Transactions Section 6(b) of the Agreement shall not
apply and the provisions of this subsection (g) of Part 5 of
the Schedule shall apply in lieu thereof.
(2) IMPOSSIBILITY. "Impossibility" means, with respect to FX
Transactions and Currency Options, due to force majeure or act
of State a party is prevented from or hindered or delayed in
the delivery or receipt of any Currency in respect of a
Currency Obligation or Currency Option or it becomes or, in
the good faith judgment of one of the parties, may become
impossible due to the occurrence of a natural or man-
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made disaster, calamity, emergency, crisis or other
circumstance beyond its control for a party to deliver or
receive any Currency which is the subject of a Currency
Obligation or Currency Option. The party for whom such
Performance has been prevented, hindered or delayed or has
become impossible shall be deemed to be an "Affected Party".
The FX Transactions and Currency Options affected by the
occurrence of an Impossibility shall be deemed to be "Affected
Transactions".
(3) DESIGNATION OF EARLY TERMINATION DATE. If an Impossibility or
an Illegality occurs and any Affected Transaction is a FX
Transaction or a Currency Option, then the Affected Party
shall promptly give notice thereof to the other party, and
subject to the provisions of subsection (c,)(6), either party
may, by notice to the other party, designate a day not earlier
than the day such notice is effective as an Early Termination
Date with respect to such Affected Transactions.
(4) CALCULATION OF AMOUNT PAYABLE. For the purposes of subsection
(g)(3) above, the amount payable shall be determined by the
party which is not the Affected Party (or, if both parties are
Affected Parties, whichever party gave the relevant notice) in
accordance with Section 6(e)(ii) of the Agreement and
subsection (f) of this Part 6 of the Schedule as if there were
one Affected Party and the party performing the calculations
is not the Affected Party.
(5) NO EVENT OF DEFAULT. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also
constitutes an Impossibility, it will be treated as an
Impossibility and will not constitute an Event of Default.
(6) TRANSFER TO AVOID IMPOSSIBILITY OR ILLEGALITY. If an
Impossibility or Illegality occurs and any Affected
Transaction is an FX Transaction or Currency Option, unless
prohibited by law, the Affected Party shall, as a condition to
its right to designate an Early Termination Date with respect
to any Currency Obligation or Option, use all reasonable
efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer as soon
as practicable, and in any event before the earlier to occur
of the expiration date of the affected Currency Obligations or
Options or twenty (20) days after it gives notice under
subsection (g)(3) of this Part 6 of the Schedule all its
rights and obligations under the Agreement in respect of the
affected Currency Obligations and Options to another of its
Offices so that such Impossibility or Illegality ceases to
exist. Any transfer will be subject to the prior written
consent of the other party, which consent will not be withheld
if such other party's policies in effect at such time would
permit it to enter into transaction with the transferee Office
on the terms proposed, unless such transfer would cause the
other party to incur a material tax or other cost.
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IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof
VENTURE HOLDINGS COMPANY LLC
By: /s/ James E. Butler
------------------------------------
Name: James E. Butler
Title: Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Janet D. Newell
------------------------------------
Name: Janet D. Newell
Title: Assistant Vice President
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