EXHIBIT 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT, dated as of October 21, 2002
(this "Amendment"), is among Venture Holdings Company LLC, a Michigan limited
liability company, as successor Borrower to Venture Holdings Trust under the
Credit Agreement (the "Borrower"), the lenders set forth on the signature pages
hereof (collectively, the "Lenders"), and Bank One, NA, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent").
RECITALS
A. The Borrower, the Administrative Agent and the Lenders are parties
to a Credit Agreement dated as of May 27, 1999 (as now and hereafter amended,
the "Credit Agreement"), pursuant to which the Lenders agreed, subject to the
terms and conditions thereof, to extend credit to the Borrower. Terms used but
not defined herein shall have the respective meanings ascribed thereto in the
Credit Agreement.
B. The Credit Agreement was amended by a First Amendment to Credit
Agreement dated June 4, 1999 (the "First Amendment"), a Second Amendment to
Credit Agreement dated June 29, 2000 (the "Second Amendment"), a Third Amendment
to Credit Agreement dated March 29, 2002 (the "Third Amendment") and a Fourth
Amendment to Credit Agreement dated May 20, 2002 (the "Fourth Amendment"),
pursuant to which the parties agreed to modify certain terms and conditions of
the extension of credit to the Borrower.
C. On or about May 28, 2002, the Borrower informed the Administrative
Agent and the Lenders that the Borrower potentially was in violation of certain
covenants set forth in the Credit Agreement, caused by the filing of a
preliminary insolvency petition against Venture Germany GmbH, Venture
Verwaltungs GmbH and Peguform GmbH & Co. KG (collectively the "German Insolvency
Proceeding Subsidiaries"). On or about June 3, 2002, the Borrower informed the
Administrative Agent and the Lenders that the Borrower potentially was in
violation of certain covenants set forth in the Credit Agreement caused by the
failure of the Borrower to pay interest on the 1999 Senior Unsecured Notes and
the 1999 Senior Notes on the due date thereof. The Administrative Agent and the
Lenders, at the request of the Borrower, waived such potential defaults on a
temporary basis under the terms and conditions set forth in a Fifth Amendment to
Credit Agreement dated as of June 3, 2002 (the "Fifth Amendment").
D. Prior to the execution of the Fifth Amendment, the Borrower engaged
Xxxxxx XxxXxxxxx & Xxxxxxxx ("CMD") as business and financial consultants to the
Borrower.
E. On June 24, 2002, representatives of the Borrower met with the
Lenders and presented to the Lenders the Borrower's comprehensive proposal to
address, among other things, the preliminary insolvency petition filed against
the German Insolvency Proceeding Subsidiaries. The terms under which such
comprehensive proposal would be considered and/or implemented were set forth in
a Sixth Amendment to Credit Agreement dated as of June 27, 2002 (the "Sixth
Amendment"). Also on June 24, 2002, the Borrower informed the Administrative
Agent and the Lenders of the continuation of the potential defaults described in
Recital C above. The Administrative Agent and the Lenders, at the request of the
Borrower, waived such potential defaults on a temporary basis under the terms
and conditions set forth in the Sixth Amendment.
F. The temporary waiver set forth in the Sixth Amendment was due to
expire on September 1, 2002. On August 28, 2002, the Borrower informed the
Administrative Agent and the Lenders that the preliminary insolvency petition
against the German Insolvency Proceeding Subsidiaries had been extended and that
the corresponding potential defaults under the Credit Agreement were continuing.
The Administrative Agent and the Lenders, at the request of the Borrower, waived
such potential defaults on a temporary basis under the terms and conditions set
forth in a Seventh Amendment to Credit Agreement dated as of August 28, 2002
(the "Seventh Amendment").
G. The Credit Agreement (as modified by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment and the Seventh Amendment), all promissory notes executed by any
Borrower in favor of the Administrative Agent and/or the Lenders, and any and
all of the Collateral Documents (including without limitation all security
agreements, mortgages, guaranties, pledges and other instruments, documents or
agreements of any kind evidencing, securing or relating to the indebtedness of
the Borrower in favor of the Lenders) are sometimes referred to collectively as
the "Loan Documents."
H. On October 1, 2002, the preliminary insolvency petition against the
German Insolvency Proceeding Subsidiaries was converted to a formal insolvency
proceeding (the "German Formal Insolvency Proceeding"). As a result of such
conversion, certain Defaults have occurred under the Credit Agreement as
described in Exhibit A annexed hereto (collectively the "Existing Defaults").
The Existing Defaults are continuing as of the date hereof.
I. As a consequence of the Existing Defaults, among other things, (i)
all indebtedness owed to the Lenders by the Borrower and all other obligations
owed to the Lenders or the Administrative Agent under the Loan Documents are
subject to acceleration pursuant to Section 8.1(a) of the Credit Agreement, and
(ii) the Lenders have no obligation to advance further loans or credit to the
Borrower, pursuant to Section 4.2(i) of the Credit Agreement.
J. Notwithstanding the continuation of the Existing Defaults, the
Borrower has requested that the Administrative Agent and the Lenders (a) modify
certain terms and conditions set forth in the Credit Agreement, (b) waive the
Existing Defaults on a temporary basis, (c) forbear temporarily from exercising
remedies available under the Loan Documents or at law or in equity and (d)
consent to a priming lien on the assets of the Borrower and its Subsidiaries and
Deluxe Pattern Corporation in connection with certain potential future financing
arranged by the Administrative Agent, all in order to (i) permit the Borrower an
opportunity to develop and implement a restructuring plan and (ii) permit the
Borrower to continue to develop and implement a revised business plan and
financial strategy that would address, inter alia, repayment of the indebtedness
owed to the Lenders.
K. As of October 21, 2002, the Borrower is indebted to the Lenders on
account of Revolving Credit Loans, Swing Loans and the outstanding face amount
of Facility Letters of Credit under the Credit Agreement in the aggregate
principal amount of $174,113,840.22 plus accrued interest.
L. As of October 21, 2002, the Borrower is indebted to the Lenders on
account of Term Loans under the Credit Agreement (consisting of Term Loan A,
Term Loan B and Term Loan C) in the aggregate principal amount of
$259,275,988.60 plus accrued interest.
M. In addition to the indebtedness described in the foregoing recitals,
the Borrower is indebted to the Administrative Agent and the Lenders for certain
fees, expenses and costs incurred by or on behalf of the Administrative Agent
and the Lenders as provided in the Credit Agreement. In addition
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to other obligations, all the indebtedness, obligations and liabilities
described in this Recital M, in the foregoing Recitals K and L and/or otherwise
owing under the Loan Documents, are Secured Obligations.
N. The Secured Obligations are unconditionally guaranteed by the
Guarantors, subject to any limitations set forth in the applicable Guaranties.
O. The Principal has agreed (i) that each of Venture Heavy Machinery
Limited Liability Company, a Michigan limited liability company, Venture Real
Estate Acquisition Company, a Michigan corporation, Venture Equipment
Acquisition Company, a Michigan corporation, Realven Corporation, a Michigan
corporation, Deluxe Pattern Corporation, a Michigan corporation, Venture Real
Estate, Inc., a Michigan corporation, Venture Automotive Corp., a Michigan
corporation, Farm & Country Real Estate Company, a Michigan corporation, Patent
Holding Company, a Michigan corporation, P.I.M Management Company, a Michigan
corporation and Venco #1 LLC, a Michigan limited liability company (collectively
the "Affiliate Guarantors") will execute and deliver to the Administrative
Agent, for the benefit of itself and the Lenders, unlimited secured guaranties
of the Secured Obligations (provided that the guaranties of P.I.M. Management
Company and Venco #1 LLC, indirect owners of a majority of the stock of Venture
Asia Pacific (Pty) Ltd. ("Venture Australia") and Venture Xxxx South Africa
(Pty) Ltd. ("Venture South Africa"), shall be guaranties of collection only,
including following collection efforts with respect to the Guarantors and the
other Affiliate Guarantors, and provided, further, that the guaranty of P.I.M.
Management Company shall be limited to assets related to Venture Australia,
Venture Holdings B.V. and Venture South Africa (collectively the "Foreign
Issuers")) and grant liens and security interests in all of their respective
assets (and with respect to P.I.M. Management Company and Venco #1 LLC, a pledge
their stock and of 65% of the ownership interests in the Foreign Issuers,
enforceable only following collection efforts against the Borrower, the
Guarantors and the other Affiliate Guarantors and, as to P.I.M. Management
Company, limited to the assets related to the Foreign Issuers), each to the
maximum extent permitted by applicable law and to the extent not prohibited by
existing contractual restrictions; (ii) that the Principal will pledge to the
Administrative Agent, for the benefit of itself and the Lenders, 100% of his
ownership interest in each of the Affiliate Guarantors and any holding companies
for any of such Affiliate Guarantors (such pledge to be limited to any such
holding company's interest in the Affiliate Guarantors); and (iii) to cause
Venture Sales & Engineering, Corp., a Michigan corporation, to execute a
collateral assignment of its commission agreement with the Borrower.
P. To secure payment of the Secured Obligations, including, without
limitation, the indebtedness described in the foregoing recitals, the Borrower
and each Guarantor have granted to the Administrative Agent, for the benefit of
itself and the Lenders, a security interest in, without limitation, all of the
Borrower's and such Guarantor's present and future accounts, documents,
instruments, general intangibles, investment property, chattel paper, furniture,
fixtures, machinery, equipment, inventory and all other property and assets of
the Borrower and the Guarantors, including books and records relating thereto
and all substitutions, replacements, additions, accessories, products and
proceeds thereof, and including a pledge of corporate stock to the extent
required under the Credit Agreement and a mortgage of real property, which
security interests are duly perfected security interests to the extent that
perfection may be obtained by filing under the Uniform Commercial Code.
Q. As a consequence of the Existing Defaults, the Borrower is precluded
from making any payments to the holders of Subordinated Indebtedness (if any),
and the Borrower has agreed that it shall not make any payments to the holders
of any Subordinated Indebtedness.
R. Based upon the foregoing recitals, and without waiving any existing
or future rights or remedies which the Administrative Agent and/or the Lenders
may have against the Borrower or any Guarantor, the Administrative Agent and the
Lenders are willing to amend the terms of the Credit Agreement and to forbear
from exercising remedies available to them at the present time, for a limited
period of time, all under the terms and conditions expressly set forth herein.
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TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1.
DEFAULT, FORBEARANCE AND RESTRUCTURING PROVISIONS
1.1 Affirmation of Recitals. The Borrower and the Guarantors hereby
acknowledge and affirm the accuracy of the foregoing recitals.
1.2 Existing Defaults. The Borrower acknowledges the occurrence of the
Existing Defaults and the continuation of such Existing Defaults through the
date of this Amendment. As a result of the Existing Defaults, the Borrower
acknowledges (i) that all Secured Obligations owed by the Borrower to the
Lenders are subject to acceleration, (ii) that the Required Lenders have the
right at any time to exercise one or more available remedies and (iii) that the
Lenders have no obligation to advance further loans or credit to the Borrower.
Also as a result of the Existing Defaults, the Borrower acknowledges that it is
precluded from making any payments to the holders of any Subordinated
Indebtedness (if any) and the Borrower has agreed not to make any payment
related to any Subordinated Indebtedness absent the prior written consent of the
Required Lenders (or the Administrative Agent acting with the consent of the
Required Lenders).
1.3 Conditions for Forbearance. Subject to strict compliance with the
terms and conditions set forth herein, the Lenders agree to forbear from
enforcing their rights and remedies based on the Existing Defaults while the
Borrower and its consultants implement the Borrower's plan for improvement of
the Borrower's financial condition, provided that (i) except to the extent and
on the terms set forth expressly herein, the Administrative Agent and the
Lenders do not waive the Existing Defaults and (ii) such agreement to forbear
shall not create a waiver of the right of the Administrative Agent or the
Lenders, upon the occurrence of an Event of Default hereunder or a new Default
or Unmatured Default under the Loan Documents, to enforce available rights and
remedies at any time, in their sole discretion, in accordance with the Credit
Agreement (as modified herein) and the other Loan Documents. Absent an earlier
Event of Default, the period during which the Lenders shall forbear is from the
Eighth Amendment Effective Date through April 15, 2003 (the "Restructuring
Period"). The Lenders' forbearance shall be governed by and subject to the
following terms and conditions, and the Borrower and the Guarantors, as
applicable, agree to take all actions to cause each of the following to be
satisfied:
a. The Borrower shall keep the representatives of the
Administrative Agent (including its counsel and advisors) and
the Lenders apprised of the Borrower's business and financial
operations and of any material discussions and negotiations
pertaining to lessors, vendors, suppliers, customers, joint
venture partners, acquisition targets or potential purchasers
of any business segments or significant assets of the Borrower
or any of its Subsidiaries. Information on such matters shall
be provided periodically as appropriate and not less
frequently than weekly. Commencing immediately upon the Eighth
Amendment Effective Date, the Borrower shall use its best
efforts to negotiate a comprehensive restructuring plan
acceptable to all constituents (including the Administrative
Agent and the Lenders).
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b. The Borrower shall strictly comply with the
financial reporting requirements under the Loan Documents, as
modified herein (subject to timely availability of information
from Foreign Subsidiaries to the extent that such information
is not controlled by the Borrower). In addition to the
reporting requirements set forth in Section 6.1 of the Credit
Agreement (as modified herein), (i) not later than Wednesday
of each week during the Restructuring Period, the Borrower
will deliver to the Administrative Agent and its advisors, in
form and detail satisfactory to the Administrative Agent, (A)
weekly updates related to the detailed 13-week rolling cash
flow forecast as required under Section 4.2 of this Amendment,
showing actual results from the prior week and on a cumulative
basis, and including a report of any variances between actual
results and the Approved Budget, and (B) a duly-executed
Borrowing Base Certificate and compliance certificate (in the
form annexed hereto as Exhibit B) with respect to the
Borrower's compliance with the applicable financial covenants
set forth in the Credit Agreement and this Amendment; (ii) not
later than the tenth (10th) day of each month during the
Restructuring Period, the Borrower will deliver to the
Administrative Agent and its advisors, in form and detail
satisfactory to the Administrative Agent, detailed agings of
accounts payable and accounts receivable for the Borrower and
its Subsidiaries as of the end of the prior month; and (iii)
the Borrower shall deliver to the Administrative Agent and its
advisors, immediately upon receipt thereof, copies of any
fully-executed letters of intent, agreements or similar
documents pertaining in any manner to any proposed sale or
other disposition of any assets or business segments of the
Borrower or its Subsidiaries other than in the ordinary course
of business.
c. Except to the extent expressly excused or waived
under the terms and conditions set forth in this Amendment,
the Borrower shall pay when due all amounts owed to the
Administrative Agent and the Lenders under the Loan Documents.
d. The Borrower shall not request any further
Advances (including with respect to any Swing Loans) under the
Credit Agreement.
e. All representations and warranties made by the
Borrower under this Amendment shall be true and correct when
made.
f. (i) Commencing October 26, 2002 and for each
"Measuring Period" (defined below) thereafter during the
Restructuring Period, the actual cumulative "Adjusted Net Cash
Flow" (defined below) of the Borrower, its Domestic
Subsidiaries and Canadian Subsidiary on a consolidated basis
during such Measuring Period shall equal or exceed the
projected Adjusted Net Cash Flow for such Measuring Period as
compared against the Approved Budget pursuant to Section 4.2
of this Amendment, within a cumulative negative variance of
ten percent (10%). The term "Adjusted Net Cash Flow" shall
mean the excess (if any) of the consolidated aggregate cash
receipts of the Borrower, its Domestic Subsidiaries and
Canadian Subsidiary during the relevant period (excluding (A)
the Borrower's (or its Domestic Subsidiaries' or Canadian
Subsidiary's) share of any Net Cash Proceeds generated by any
sale of assets or by the issuance or sale of any equity
securities or debt incurrence, (B) the amount of any tax
refunds and (C) any accelerated tooling payments outside of
the ordinary course of business to the extent not included in
the Approved Budget) compared to the cumulative consolidated
aggregate cash disbursements of the Borrower, its Domestic
Subsidiaries and Canadian Subsidiary during such period for
operating expenses, taxes and debt service (but excluding any
disbursements for restructuring professional fees paid by the
Borrower during such period in excess of
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projected amounts), all as shown on the reports required
pursuant to Sections 1.3b and 4.2 of this Amendment and
prepared in a manner consistent with the presentation set
forth in the Approved Budget. The Adjusted Net Cash Flow of
the Borrower, its Domestic Subsidiaries and Canadian
Subsidiary shall be measured on a weekly basis ending Friday
of each week (each a "Measuring Period") and on a cumulative
basis (i.e., the first Measuring Period shall be a one-week
period commencing October 26, 2002 and ending November 1,
2002, the second Measuring Period shall be a two-week
cumulative period commencing October 26, 2002 and ending
November 8, 2002, etc).
(ii) During the Restructuring Period, in
addition to the Adjusted Net Cash Flow restrictions set forth
in subparagraph (i) above, during each Measuring Period the
actual cumulative cash disbursements of the Borrower, its
Domestic Subsidiaries and Canadian Subsidiary in respect of
(x) payments or transfers to Deluxe Pattern Corporation, (y)
payments or transfers to Venture Sales & Engineering, Corp.
and (z) payments or transfers to the Borrower's Foreign
Subsidiaries located in the United Kingdom, the Czech Republic
and Hungary, shall not exceed the respective amounts set forth
in the Approved Budget line items for each of such entities
during the applicable Measuring Period, and during the
Restructuring Period the aggregate amount of payments or
transfers to the Borrower's Foreign Subsidiaries located in
the United Kingdom, the Czech Republic and Hungary shall not
exceed $3,000,000.00.
(iii) At all times during the Restructuring
Period, the trade accounts payable balance of the Borrower,
its Domestic Subsidiaries and Canadian Subsidiary shall not be
less than $58,317,503 at any time.
(iv) During the Restructuring Period, as of
each of the dates set forth in the following table, the
Borrower, its Domestic Subsidiaries and Canadian Subsidiary
shall maintain minimum Short-Term Liquidity (as hereinafter
defined) not less than the sum of (x) the first $3,000,000
received by the Borrower outside the ordinary course of
business from any of its Foreign Subsidiaries located outside
of North America, pursuant to Section 1.3w of this Amendment,
plus (y) the minimum liquidity requirement set forth in the
following table:
Date minimum liquidity requirement
---- -----------------------------
November 1, 2002 $11,000,000
November 29, 2002 $12,500,000
January 3, 2003 $12,000,000
January 31, 2003 $9,000,000
February 28, 2003 $9,000,000
April 4, 2003 $5,000,000
The term "Short-Term Liquidity" shall mean, at any time, the
aggregate amount available (without restriction) to the
Borrower, its Domestic Subsidiaries and Canadian Subsidiary
for working capital purposes, in the form of cash or Cash
Equivalents capable of being converted into cash within two
(2) Business Days, less the amount of any checks, drafts or
other items issued by the Borrower or its Subsidiaries but not
yet paid or accepted, plus the aggregate amount of
restructuring professional fees and costs paid by the Borrower
during
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the Restructuring Period to the extent in excess of projected
amounts, plus the aggregate amount of any payments by the
Borrower to the Lenders during the Restructuring Period caused
by fluctuations in any foreign currencies.
(v) The Borrower, its Domestic Subsidiaries
and Canadian Subsidiary shall not, absent the prior written
consent of the Required Lenders, disburse any funds for
purposes other than those set forth in the Approved Budget.
g. The Borrower will not permit or suffer Adjusted
EBITDA (as hereinafter defined) to be less than the following
amounts (measured on a cumulative basis) for the periods
indicated:
Period Minimum Adjusted EBITDA
------ -----------------------
October 2002 $6,661,000
Two-month period ending November 30, 2002 $13,758,000
Three-month period ending December 31, 2002 $26,721,000
Three-month period ending January 31, 2003 $25,023,000
Three-month period ending February 28, 2003 $25,373,000
Three-month period ending March 31, 2003 $23,466,000
As used herein the term "Adjusted EBITDA" means, for any
period, EBITDA for such period plus all amounts deducted in
determining such EBITDA on account of (a) sales commissions
for Venture Sales & Engineering, Corp., (b) rents and usage
fees for any Affiliate of the Borrower and (c) any
distributions or payments to beneficiaries (to the extent
permitted under the Credit Agreement) in recognition of such
beneficiaries' income tax liability, but excluding from the
calculation any restructuring professional fees and costs
incurred by the Borrower during such period.
h. Other creditors (including, without limitation,
the holders of Subordinated Indebtedness, the 1997 Senior
Unsecured Notes, the 1999 Senior Unsecured Notes, the 1999
Subordinated Notes or the Additional Subordinated Note) shall
continue to forbear from the exercise of any remedies, except
to the extent that the discontinuation of such forbearance
would not cause a Material Adverse Effect or prevent, impair
or delay the completion of the commitments undertaken by
Borrower under this Amendment. (Mere acceleration of
indebtedness without further exercise of remedies shall not be
deemed a violation of the preceding sentence.) No action or
proceeding shall be commenced or continued against the
Borrower that would, if adversely determined, cause a Material
Adverse Effect or prevent, impair or delay the completion of
the commitments undertaken by Borrower under this Amendment.
i. Excepting only the continuation of the German
Formal Insolvency Proceeding, there shall be no occurrence of
any event described in Sections 7.6 or 7.7 of the Credit
Agreement. The Administrative Agent's issuance of a commitment
to the Borrower for certain potential future financing shall
not be deemed to be consent to the occurrence of any event
described in Sections 7.6 or 7.7 of the Credit Agreement, and
the occurrence of any such event (other than the continuation
of the German Formal Insolvency Proceeding)
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shall be a Default under the Loan Documents notwithstanding
such commitment for potential future financing.
j. The Administrative Agent or its representatives or
consultants shall be permitted to conduct audits of any
collateral securing the obligations of the Borrower to the
Lenders. The Borrower shall compensate the Administrative
Agent for such audits in accordance with the Administrative
Agent's schedule of fees, as applicable, and as such schedules
may be amended from time to time. The foregoing permission to
conduct audits shall not restrict or impair the right of the
Administrative Agent to inspect the collateral and any records
pertaining thereto at such times and at such intervals as the
Administrative Agent or the Required Lenders may require.
k. There shall be no Material Adverse Effect upon the
ability of the Borrower, its Domestic Subsidiaries and
Canadian Subsidiary to obtain supplies or other assets to
continue their operations subject to the Approved Budget.
l. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 6.11 of the Credit Agreement), during the
Restructuring Period, absent the prior written consent of the
Required Lenders, the Borrower shall not, and shall not permit
or cause any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness other than (w) Indebtedness
as permitted under subsections 6.11(i), (ii), (iii), (iv), (v)
and (vii) of the Credit Agreement, (x) Indebtedness to any
Affiliate Guarantor or to the Principal that is subordinated
to the rights of the Lenders and required to be deferred under
the terms of this Amendment, (y) other Indebtedness in an
aggregate amount at any one time outstanding not to exceed
$5,000,000 and (z) Indebtedness incurred by any of the German
Insolvency Proceeding Subsidiaries (to the extent incurred
outside the control of the Borrower or its other
Subsidiaries). The provisions of this subparagraph 1.3l are
subject to the payment restrictions set forth in subparagraph
1.3v below.
m. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 6.15 of the Credit Agreement), during the
Restructuring Period, absent the prior written consent of the
Required Lenders, the Borrower shall not, and shall not permit
or cause any of its Subsidiaries to, create, incur or suffer
to exist any Lien other than (x) Liens as permitted under
subsections 6.15(i), (ii), (iii), (iv), (vi) and (viii) of the
Credit Agreement, (y) Liens in existence immediately prior to
the Eighth Amendment Effective Date and described in Schedule
6.15 annexed hereto (provided that there shall be no increase
in the amount secured by such Liens) and (z) Liens granted by
any of the German Insolvency Proceeding Subsidiaries (to the
extent granted outside the control of the Borrower or its
other Subsidiaries).
n. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 6.13 of the Credit Agreement), during the
Restructuring Period, neither the Borrower nor any of its
Subsidiaries shall agree to or consummate the sale,
assignment, lease, conveyance, transfer or other disposition
of any of its assets, except for (i) sales of inventory in the
ordinary course of business, (ii) transfers of assets between
Guarantors and between the Borrower and Guarantors, (iii) the
disposition by the administrator of the German Insolvency
Proceeding Subsidiaries of assets of the German Insolvency
Proceeding Subsidiaries having a value not exceeding
$5,000,000 in the aggregate during the Restructuring Period,
(iv) the disposition of other
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assets having a value not exceeding $500,000 in the aggregate
during the Restructuring Period or (v) the disposition of
assets under terms approved by the Required Lenders as
evidenced by the prior written consent of the Administrative
Agent (provided that such consent shall require the approval
of all of the Lenders in the event of any proposed disposition
of all or substantially all of the Collateral). During the
Restructuring Period, any Net Cash Proceeds required to be
paid to the Lenders from the sale or disposition of any assets
shall be, immediately upon receipt, tendered to the
Administrative Agent for the benefit of the Lenders, to be
applied first, against the New Revolving Advances and any
accrued but unpaid interest thereon, and second, as a
reduction of the outstanding principal balance of the
remaining Loans on a pro-rata basis (any amount applied to the
outstanding principal balance of the Term Loans shall be
applied in the inverse order of maturity and any amount
applied to the outstanding principal balance of the Revolving
Credit Loans shall be a permanent reduction of the aggregate
amount of the Revolving Credit Commitments).
o. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Sections 6.11(v), 6.12 and 6.14 of the Credit Agreement),
during the Restructuring Period, neither the Borrower nor any
of its Subsidiaries shall agree to or consummate any
Investment, Joint Venture, Acquisition, merger, consolidation
or combination at any time, extend any credit to any other
Person, or enter into any similar business arrangement or
combination, in each case without the prior written consent of
the Required Lenders (provided that intercompany transfers may
be completed to the extent provided in the Approved Budget or
consistent with the Borrower's cash management system
acceptable to the Administrative Agent).
p. Notwithstanding anything in the Credit Agreement
to the contrary, during the Restructuring Period, neither the
Borrower nor any of its Subsidiaries, nor any Guarantors or
Affiliate Guarantors (for P.I.M. Management Company, limited
to assets related to the Foreign Issuers), shall advance any
loans or credit to any officer, director, individual
stockholder or principal of any of them (including the
Principal), or otherwise enter into any similar transaction,
nor shall the Borrower, any of its Subsidiaries, any Guarantor
or any Affiliate Guarantor forgive or defer any payment of
principal or interest with respect to any existing loan or
advance to any such officer, director, individual stockholder
or principal (provided that existing loans identified in
Schedule 1.3p annexed hereto, in aggregate amount not to
exceed $1,600,000, are subject to forgiveness according to
existing terms). The restrictions set forth in this
subparagraph p shall not be deemed to preclude any
intercompany transfers expressly permitted under the Approved
Budget.
q. Notwithstanding anything in the Credit Agreement
to the contrary (including without limitation the provisions
of Section 6.10 of the Credit Agreement), during the
Restructuring Period, absent the prior written consent of the
Required Lenders, the Borrower shall not, and shall not permit
or cause any of its Subsidiaries to declare or pay any
dividends or make any distributions on its Capital Stock or
redeem, repurchase or otherwise acquire or retire any of its
Capital Stock (other than dividends or distributions payable
to the Borrower and other than Permitted Tax Distributions).
r. During the Restructuring Period, the full amount
of any tax refunds received by the Borrower, any of its
Subsidiaries, any existing Guarantor or Affiliate Guarantor
(other than P.I.M. Management Company or Venco #1 LLC), or the
Principal (in connection with the Principal's ownership of any
business entity related to the Borrower's
9
business), and the full amount of any net casualty insurance
proceeds received by the Borrower, any of its Subsidiaries,
any existing Guarantor or Affiliate Guarantor, or the
Principal (in connection with the Principal's ownership of any
business entity related to the Borrower's business), to the
extent that such casualty insurance proceeds are not used to
repair or replace damaged or destroyed assets, shall,
immediately upon receipt thereof, be tendered to the
Administrative Agent for the benefit of the Lenders, to be
applied first, against the New Revolving Advances and any
accrued but unpaid interest thereon, and second, as a
reduction of the outstanding principal balance of the
remaining Loans on a pro-rata basis (any amount applied to the
outstanding principal balance of the Term Loans shall be
applied in the inverse order of maturity and any amount
applied to the outstanding principal balance of the Revolving
Credit Loans shall be a permanent reduction of the aggregate
amount of the Revolving Credit Commitments). The provisions of
this subparagraph r shall not impair the payment of any
Permitted Tax Distributions pursuant to Section 6.10 of the
Credit Agreement.
s. Notwithstanding anything in the Credit Agreement
to the contrary, during the Restructuring Period, the Borrower
shall not, and shall not permit any Domestic Subsidiary or its
Canadian Subsidiary to, make any Capital Expenditures that
exceed in the aggregate for the Borrower and such Subsidiaries
the following amounts (measured on a cumulative basis) for the
periods indicated:
Period Maximum Capital Expenditures
------ ----------------------------
October 2002 $1,670,000
Two-month period ending November 30, 2002 $3,340,000
Three-month period ending December 31, 2002 $5,010,000
Four-month period ending January 31, 2003 $7,510,000
Five-month period ending February 28, 2003 $10,010,000
Six-month period ending March 31, 2003 $12,510,000
t. The Borrower shall continue to engage, for at
least the duration of the Restructuring Period, CMD or one or
more other financial consultants or turnaround advisors
acceptable to the Administrative Agent and the Required
Lenders. The scope of the engagement of CMD shall not be
reduced or expanded without the prior consent of the
Administrative Agent and the scope of the engagement of any
other financial consultants or turnaround advisors shall be
acceptable to the Administrative Agent and the Required
Lenders. Without limiting the generality of the preceding
sentence, CMD shall assist the Borrower in the control and
implementation of procedures regarding the Borrower's cash
management and cash disbursements, which procedures shall be
acceptable to the Administrative Agent and the Required
Lenders.
u. As of the date of execution of this Amendment, the
Borrower has voluntarily determined, and hereby agrees, that
in the absence of the consummation of a comprehensive
restructuring plan acceptable to the Required Lenders (as
evidenced by the written consent of the Administrative Agent
on behalf of the Required Lenders), the Borrower will not,
after the Eighth Amendment Effective Date, make any payments
in respect of principal or interest on the 1997 Senior
Unsecured Notes, the 1999 Senior Unsecured Notes, the 1999
Subordinated Notes or the Additional Subordinated Note. If,
10
notwithstanding such determination and agreement, the Borrower
at any time elects to make any such payment, the Borrower will
provide not less than ten (10) Business Days' advance written
notice to the Administrative Agent of the Borrower's intention
to make any such payment. Upon the issuance of any such
written notice, the Restructuring Period shall terminate
immediately without further notice.
v. During the Restructuring Period, the Borrower
shall continue to defer payment of any sums owing from time to
time to any Subsidiary or Affiliate, and no Subsidiary or
Affiliate will accept any payment from the Borrower (including
with respect to any past due or accrued amounts), with the
sole exception of any intercompany payments or transfers
expressly permitted under the Approved Budget. All amounts
deferred as of the Eighth Amendment Effective Date are shown
on Schedule 1.3v annexed hereto and all such amounts
previously or hereafter deferred shall continue to accrue.
Neither Borrower nor any of its Subsidiaries shall in any
event make any payment or advance to any entity subject to the
German Formal Insolvency Proceeding without the prior consent
of the Required Lenders (as evidenced by a written consent
executed by the Administrative Agent).
w. During the Restructuring Period, any amounts
recovered or received outside the ordinary course of business
by any of the Borrower's Foreign Subsidiaries located outside
of North America shall, to the fullest extent permitted by
applicable law, be transferred to the Borrower. Immediately
thereafter, (A) the portion of such amounts required to be
retained as minimum Short-Term Liquidity pursuant to Section
1.3f(iv) of this Amendment shall be retained by the Borrower
and (B) the remaining portion of such amounts shall be
remitted immediately to the Administrative Agent for the
benefit of the Lenders, to be applied first, against the New
Revolving Advances and any accrued but unpaid interest
thereon, and second, as a reduction of the outstanding
principal balance of the remaining Loans on a pro-rata basis
(any amount applied to the outstanding principal balance of
the Term Loans shall be applied in the inverse order of
maturity and any amount applied to the outstanding principal
balance of the Revolving Credit Loans shall be a permanent
reduction of the aggregate amount of the Revolving Credit
Commitments).
x. Effective not later than the Eighth Amendment
Effective Date and continuing during the remainder of the
Restructuring Period, significant North American customers of
the Borrower or its Subsidiaries shall provide accommodations
to the Borrower and its Subsidiaries as set forth in (1) that
certain Instant Payment Terms Agreement dated as of October 4,
2002 among the Borrower, General Motors Corporation, Ford
Motor Company and DaimlerChrysler Corporation, (2) that
certain Accommodation Agreement dated as of October 9, 2002
between the Borrower and General Motors Corporation, as
amended, and (3) that certain Agreement Between Venture and
DaimlerChrysler Regarding WK Tooling dated on or about October
22, 2002 (collectively, the "Accommodation Documents"). The
Accommodation Documents shall not be amended in any material
way without the prior written consent of the Administrative
Agent.
y. During the Restructuring Period, neither the
Borrower nor any of its Subsidiaries shall pay any
discretionary bonus or similar compensation award to any of
their respective officers or employees except pursuant to a
comprehensive plan approved by the Required Lenders. The
preceding sentence shall not limit the right of the Borrower
or its Subsidiaries to pay any bonus required under any
existing written employment
11
agreement, incentive plan or similar "guaranteed" bonus plan.
Upon request, the Borrower shall deliver to the Lenders and
the Administrative Agent copies of any applicable employment
agreements, incentive plans or similar "guaranteed" bonus
plans.
z. The Borrower has advised the Administrative Agent
and the Lenders that the Borrower may consult with one or more
investment banking firms to explore various strategic
alternatives. The Borrower shall keep representatives of the
Administrative Agent and the Lenders apprised of such
consultations. The Borrower shall not engage any investment
banking firm unless the identity of such firm and the scope of
the engagement are acceptable to the Administrative Agent and
the Required Lenders in the exercise of their reasonable
discretion.
aa. There shall be no other Default or Unmatured
Default under the Credit Agreement (as modified herein) or the
other Loan Documents (except for the Existing Defaults
expressly acknowledged and waived in this Amendment through
the effective date hereof).
Notwithstanding the provisions of this Section 1.3, all Secured Obligations of
the Borrower to the Lenders shall be due and payable on demand in the discretion
of the Required Lenders upon expiration or termination of the Restructuring
Period or any failure of any one or more of the conditions set forth in this
Section 1.3. Further, any failure of any one or more of the conditions set forth
in this Section 1.3 shall constitute a Default under the Loan Documents (without
the necessity of any notice or cure period).
1.4 No Course of Dealing; Review of the Borrower's Business Plan. The
Borrower and the Guarantors acknowledge and agree that notwithstanding any
course of dealing between the Borrower and the Lenders prior to the date hereof,
the Lenders shall have no obligation to make Loans to the Borrower nor to
forbear from exercising available remedies except as expressly set forth herein.
Notwithstanding any past practice, the Borrower and the Guarantors agree that
(i) the Administrative Agent and the Lenders shall not be obligated or expected
to honor any "overdrafts" or items for which funds of the Borrower are not
immediately available, and (ii) the Administrative Agent and the Lenders shall
not be obligated or expected to provide any credit references on behalf of the
Borrower, and any inquiries in this regard may be referred back to the Borrower.
The Borrower and the Guarantors further acknowledge and agree that, although the
Administrative Agent and the Lenders shall in good faith undertake to review and
consider any proposed business plan or proposed comprehensive restructuring plan
submitted by or on behalf of the Borrower, the Administrative Agent and the
Lenders shall be under no obligation whatsoever to consent to any such proposed
business plan or proposed comprehensive restructuring plan as the same may be
revised from time to time, and instead the Administrative Agent's and the
Lenders' consideration of the Borrower's proposed business plan and/or proposed
comprehensive restructuring plan shall be undertaken by the Administrative Agent
and the Lenders in their sole, absolute and unreviewable discretion. The
Borrower and the Guarantors further acknowledge and agree that the
Administrative Agent's and the Lenders' consideration of the Borrower's business
plan and/or comprehensive restructuring plan shall be without prejudice to (i)
the possibility that the Administrative Agent or the Lenders may conclude that
such business plan or restructuring plan, as revised from time to time, does not
adequately address the Borrower's defaults under the Loan Documents and/or the
potential erosion of collateral supporting the Borrower' indebtedness to the
Lenders, or (ii) the right of the Administrative Agent or the Lenders, in
accordance with the terms hereof, to exercise rights or remedies available due
to defaults under the Loan Documents (as modified herein).
1.5 Dominion of Funds; Transfer of Accounts; Cash Management. (a) The
Borrower, if requested by the Administrative Agent and as directed by the
Administrative Agent, shall enter into a
12
dominion of funds arrangement with the Administrative Agent and shall execute
and deliver any and all further documents necessary or desirable to implement
such dominion of funds arrangement, including without limitation any lock box
agreements or blocked account agreements. To the extent that the Borrower
receives any wire transfer or electronic payment in lieu of payment of accounts
by cash, check or other item, the Administrative Agent is authorized,
immediately upon the receipt of such wire transfer or electronic payment, to
transfer the proceeds thereof into the cash collateral account maintained in
accordance with the dominion of funds arrangement.
(b) With respect to any bank account maintained on behalf of the
Borrower at any financial institution other than the Administrative Agent or one
of the Lenders, the Borrower shall, not later than October 31, 2002, close such
accounts and maintain its banking accounts with the Administrative Agent or one
or more of the Lenders, unless the Administrative Agent shall otherwise consent
in writing.
(c) The Borrower and its Domestic Subsidiaries shall continue to
utilize a cash management system acceptable to the Administrative Agent, and
shall comply strictly with all procedures and requirements established from time
to time by the Administrative Agent with respect to any cash management or
similar services provided by the Administrative Agent. Any obligations owed by
the Borrower or any of its Subsidiaries to the Administrative Agent in
connection with any cash management or treasury management services shall be
deemed included within the term "Secured Obligations" as defined in the Credit
Agreement and shall be secured by the Collateral.
1.6 Cooperation With the Administrative Agent, the Lenders and their
Financial Consultants. Each of the Borrower, the Guarantors and the Affiliate
Guarantors agrees that it will make all of its records available to the
Administrative Agent and the Lenders and any financial consultant retained by
them (provided that with respect to the Affiliate Guarantors, such records will
be limited to those related to the Borrower's business with such Affiliate
Guarantors). Each of the Borrower and the Guarantors will make all of its
personnel available to the Administrative Agent and the Lenders and such
consultants at reasonable times for inquiry as to its business, financial
condition and prospects, and that they will otherwise fully cooperate with the
Administrative Agent, the Lenders and their financial consultants in assisting
the Lenders to conduct such analyses as they may wish to make of the Borrower,
the Guarantors and the Affiliate Guarantors and their respective financial
condition (provided that confidential information subject to the attorney-client
privilege need not be divulged).
1.7 Defaults. In addition to any events of default specified in the
Loan Documents (including any Defaults or Unmatured Defaults under the Credit
Agreement other than an Existing Default), the following shall constitute an
Event of Default under this Amendment and a Default under the Loan Documents:
a. The Borrower or any Guarantor or any Affiliate Guarantor or
the Principal shall fail to comply with, perform or observe any term, condition,
covenant or agreement set forth in this Amendment (provided that with respect to
any failure to comply with the reporting requirements set forth herein, such
failure continues for five (5) days after the deadline for such reporting) or
any other Loan Document;
b. Any representation or warranty of Borrower, any Guarantor,
any Affiliate Guarantor or Principal contained in this Amendment or any other
Loan Document shall be untrue when made;
13
c. With the exception of the continuation of the Existing
Defaults, the occurrence of any new violation of the sections of the Credit
Agreement implicated by any of the Existing Defaults (except to the extent
expressly permitted under the provisions of this Amendment);
d. The entry of any judgment, order, decree, injunction or
finding by any court, arbitrator or similar tribunal that materially threatens
the ability of the Borrower to implement or continue the implementation of its
business improvement plan during the Restructuring Period;
e. The failure of any party to comply with any material
provision of any of the Accommodation Documents, which failure materially
threatens the ability of the Borrower to implement or continue the
implementation of a restructuring plan during the Restructuring Period;
f. The exercise by one or more secured parties of any right of
access granted under any of the Accommodation Documents; or
g. Any further Material Adverse Effect shall occur in the
business, properties, operations or condition (financial or otherwise) of the
Borrower or any Guarantor or Affiliate Guarantor (other than caused by the
failure of the Borrower or any Guarantor to make payments to an Affiliate
Guarantor based upon the provisions of this Amendment).
1.8 Expiration; No Further Extension Implied. The Borrower and the
existing Guarantors and Affiliate Guarantors acknowledge that the Administrative
Agent and the Lenders have no obligation to extend the term of the Restructuring
Period or forbear from enforcing their rights and remedies before the end of the
Restructuring Period in the event of any failure of any one or more of the terms
and conditions expressed herein, that no course of dealing that would permit
arguing for further extensions contrary to the Lenders' wishes exists or is
capable of being inferred, and that nothing contained herein or otherwise is
intended to be a promise or agreement to continue to extend the term of the
Restructuring Period beyond April 15, 2003 or to extend any further credit to
the Borrower. Furthermore, no future agreement by the Administrative Agent and
the Lenders to continue to extend the term of the Restructuring Period beyond
April 15, 2003 or any other agreement shall be valid or enforceable unless it is
contained in a final written agreement signed by authorized representatives of
the Administrative Agent and the Lenders. Preliminary understandings or
agreements on one or more issues during the course of any negotiations and prior
to the finalization thereof shall not be binding unless and until such a final
written agreement is executed on behalf of the applicable parties.
1.9 Business and Financial Consultant. The Administrative Agent and the
Lenders acknowledge that the continued retention of CMD by the Borrower has
materially contributed to the willingness of the Administrative Agent and the
Lenders to enter into this Amendment. The Borrower agrees to promptly provide to
the Administrative Agent and the Lenders all financial reports, projections and
other information as may be provided to it by CMD or as may be provided to CMD
by the Borrower, and agrees to cause CMD to prepare and deliver to the
Administrative Agent and the Lenders such other reports and information
concerning the business and financial condition of the Borrower and its
Subsidiaries (other than confidential information subject to the attorney-client
privilege) as the Administrative Agent or the Lenders shall from time to time
request. The Borrower acknowledges and agrees that the Administrative Agent, the
Lenders, their consultants and counsel shall have direct access to CMD, and CMD
is authorized to discuss information (other than information subject to the
attorney-client privilege and information the Borrower considers confidential)
related to the Borrower and its Subsidiaries with the Administrative Agent, the
Lenders or their consultants or counsel.
14
1.10 Remedies Upon Default or Termination. Immediately upon the
occurrence of a further Default under the Loan Documents or an Event of Default
under this Amendment, and without notice or an opportunity to cure such Default
or Event of Default, or on April 15, 2003 in the absence of (i) a further
written agreement among the Borrower, the Administrative Agent and the Lenders
pertaining to the repayment of the Borrower's obligations, (ii) earlier demand
for repayment following a further Default or Event of Default or (iii) the
Borrower then being in full compliance with all provisions of the Loan Documents
(as amended by this Amendment but without the benefit of any waiver of
defaults), the Restructuring Period shall automatically expire and, upon the
election of the Required Lenders but without further notice, all of the
Borrower's obligations to the Lenders shall be immediately due and payable (to
the extent not already due and payable), all undertakings of the Administrative
Agent and the Lenders hereunder, including without limitation the Administrative
Agent's and the Lenders' forbearance, shall terminate without notice to the
Borrower and without the requirement of any further action by or on behalf of
the Administrative Agent or the Lenders, the waiver of the Existing Defaults and
any resulting acceleration as set forth herein shall be deemed rescinded ab
initio, and the Administrative Agent or the Lenders shall have the right to
exercise any remedies provided in this Amendment or any of the Loan Documents,
or under applicable law or in equity. All rights and remedies of the
Administrative Agent and the Lenders shall be cumulative and not exclusive, and
the Administrative Agent or the Lenders shall be entitled to pursue one or more
rights and/or remedies simultaneously or sequentially without the necessity of
an election of remedies.
1.11 Reservation of Rights; No Waiver by Conduct. This Amendment grants
a limited forbearance until April 15, 2003 only, or until an earlier Default or
Event of Default, upon the terms and conditions set forth in this Amendment.
Nothing herein shall be deemed to constitute a waiver of any Existing Defaults
(except to the extent and on the terms expressly set forth herein), or a waiver
of any new Defaults or Events of Default under any other provision of any of the
documents referred to herein, and nothing herein shall in any way prejudice the
rights and remedies of the Administrative Agent and/or the Lenders under any of
the documents referred to herein or applicable law (other than the agreement to
forbear under the terms and conditions of this Amendment). Further, the
Administrative Agent and the Lenders shall have the right to waive any
conditions set forth in this Amendment and/or such documents, in their sole
discretion, and any such waiver shall not prejudice, waive or reduce any other
right or remedy which the Administrative Agent or the Lenders may have against
the Borrower. No waiver of the rights or any condition of this Amendment and/or
any other document by the Administrative Agent or the Lenders shall be effective
unless the same shall be contained in a writing signed by authorized
representatives of the Administrative Agent or the Lenders, as the case may be,
in the manner required by Section 8.3 of the Credit Agreement. No course of
dealing on the part of the Administrative Agent or the Lenders, nor any delay or
failure on the part of the Administrative Agent or the Lenders in exercising any
right, power or privilege hereunder shall operate as a waiver of such right,
power or privilege, nor shall any single or partial exercise thereof preclude
any further exercise thereof or the exercise of any other right, power or
privilege.
1.12 Limitations on Certain Advances; Interest Rate. (a)
Notwithstanding the provisions of Section 2.1 of the Credit Agreement, during
the Restructuring Period the Borrower agrees that the Lenders shall not be
obligated to make any Advance. Notwithstanding the provisions of Sections 2.8,
2.10 and 2.11 of the Credit Agreement, during the Restructuring Period the
Borrower agrees that upon the end of any existing Interest Period with respect
to any outstanding Eurocurrency Loan or Multicurrency Loan, such Eurocurrency
Loan or Multicurrency Loans shall be converted either to a Eurodollar Loan or to
a Floating Rate Loan. Notwithstanding the provisions of the definition of
"Interest Period" in Section 1.1 of the Credit Agreement, during the
Restructuring Period the Borrower agrees that it shall not request any Interest
Period with respect to a Eurodollar Loan of more than three months, and that
upon the end of any existing Interest Period with respect to a Eurodollar Loan a
new Interest Period
15
will be selected having a duration not exceeding three months. Notwithstanding
the occurrence and continuation of the Existing Defaults, provided that all
other conditions to the issuance of any Facility Letter of Credit are satisfied,
the provisions of the Credit Agreement governing the issuance of Facility
Letters of Credit shall continue in effect during the Restructuring Period.
(b) During the Restructuring Period, in the absence of any
Event of Default hereunder or new Default under the Loan Documents, interest on
the Loans shall continue to be calculated based upon the applicable Floating
Rate or the per annum rate applicable to any Eurodollar Loan. Upon the
occurrence of any Event of Default hereunder or any new Default under the Loan
Documents, the Lenders reserve the right to impose the Overdue Rate at any time
thereafter.
1.13 Survival. All representations, warranties, covenants, agreements,
releases and waivers made by or on behalf of the Borrower or any Guarantor or
Affiliate Guarantor under this Amendment shall survive and continue after the
expiration or termination of the Restructuring Period.
16
ARTICLE 2.
AMENDMENTS
Effective as of the Eighth Amendment Effective Date, the Credit
Agreement shall be amended as follows:
2.1 A new definition of "Affiliate Guarantor" in Section 1.1 of the
Credit Agreement " is added to Section 1.1 of the Credit Agreement in
appropriate alphabetical order, stating as follows:
"Affiliate Guarantor" means each of Venture Heavy Machinery
Limited Liability Company, Venture Real Estate Acquisition
Company, Venture Equipment Acquisition Company, Realven
Corporation, Deluxe Pattern Corporation, Venture Real Estate,
Inc., Venture Automotive Corp., Farm & Country Real Estate
Company, Patent Holding Company, P.I.M. Management Company and
Venco #1 LLC and any other Affiliate required to guarantee the
Secured Obligations.
2.2 The definition of "Collateral" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Collateral" means collectively all Property of the Borrower,
of the Guarantors and of the Affiliate Guarantors (other than
P.I.M. Management Company and Venco #1 LLC), a collateral
assignment of Venture Sales & Engineering, Corp.'s commission
agreement with the Borrower, a pledge of 100% of the Capital
Stock of each Affiliate Guarantor, a pledge of 65% of the
Capital Stock of Venture Holdings B.V. and Venture Asia
Pacific (pty) Ltd., any patents owned by the Principal used in
the operations of the Borrower and its Subsidiaries, the
management and commission contracts of Venture Sales and
Engineering Inc. that are pledged to the Administrative Agent,
and all other Property in which a Lien is required to be given
by any Loan Document.
2.3 A new definition of "Eighth Amendment Effective Date" is added to
Section 1.1 of the Credit Agreement in appropriate alphabetical order, stating
as follows:
"Eighth Amendment Effective Date" shall mean October 21, 2002.
2.4 The definition of "Environmental Certificate" in Section 1.1 of the
Credit Agreement is restated in its entirety as follows:
"Environmental Certificate" means an appropriately completed
environmental certificate, substantially in the form approved
by the Administrative Agent, delivered by each of the
Borrower, Guarantors and Affiliate Guarantors (to the extent
applicable), certified as true and
17
correct as of such date by an Authorized Officer of the
Borrower and each Guarantor and Affiliate Guarantor.
2.5 The definition of "Guarantor" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Guarantor" means (a) each present and future Domestic
Subsidiary of the Borrower, and (b) each present and future
Foreign Subsidiary of the Borrower required by the
Administrative Agent to enter into a Guaranty, which Guaranty
of a Foreign Subsidiary is not prohibited by applicable law or
existing contractual restrictions or determined by the
Administrative Agent to be impractical or cost prohibitive.
2.6 The definition of "Guaranty" in Section 1.1 of the Credit Agreement
is restated in its entirety as follows:
"Guaranty" means, collectively, that certain Guaranty in the
form of Exhibit C hereto, executed by the Guarantors in favor
of the Administrative Agent, for the ratable benefit of the
Lenders, and any other guaranty executed at any time by any
Guarantor or any Affiliate Guarantor or any other Person in
connection herewith, which guaranty is not prohibited by
applicable law or existing contractual restrictions or
determined by the Administrative Agent to be impractical or
cost prohibitive, as any of the foregoing may be amended or
modified from time to time.
2.7 The definition of "Loan Documents" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Loan Documents" means this Agreement, the Notes, the
Collateral Documents, the Guaranties, the Environmental
Certificates, Rate Hedging Agreements with any Lender or its
Affiliates and all other agreements and documents contemplated
hereby or otherwise executed in connection herewith by the
Borrower or any Guarantor or Affiliate Guarantor or the
Principal or any other Affiliate.
2.8 The definition of "Material Adverse Effect" in Section 1.1 of the
Credit Agreement is restated in its entirety as follows:
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, condition (financial or
otherwise), results of operations, or prospects of the
Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower or any Guarantor or Affiliate
Guarantor to perform its obligations under the Loan Documents,
or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative
Agent or the Lenders thereunder.
18
2.9 The definition of "Mortgages" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Mortgages" means each mortgage, deed of trust or similar
document granting a Lien on real property entered into by the
Borrower or any Guarantor or Affiliate Guarantor for the
benefit of the Administrative Agent and the Lenders pursuant to
this Agreement, substantially in the forms as approved by the
Administrative Agent, as amended or modified from time to time.
2.10 The definition of "Obligations" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Obligations" means, without duplication, all unpaid principal
of and accrued and unpaid interest on the Loans, all accrued
and unpaid fees, all Facility Letter of Credit Obligations and
all other obligations of any of the Borrower, Guarantors or
Affiliate Guarantors to the Lenders or to any Lender or the
Issuer or the Administrative Agent arising under the Loan
Documents, in each case whether now or hereafter owing.
2.11 The definition of "Payment Date" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Payment Date" shall mean the last Business Day of each month.
2.12 The definition of "Pledge Agreements" in Section 1.1 of the Credit
Agreement is restated in its entirety as follows:
"Pledge Agreements" means each Pledge Agreement entered into
by the Borrower or any Guarantor or Affiliate Guarantor or the
Principal for the benefit of the Administrative Agent and the
Lenders pursuant to this Agreement substantially in the forms
attached hereto as Exhibits D-1 and D-2, as amended or
modified from time to time.
2.13 The definition of "Security Agreement" in Section 1.1 of the
Credit Agreement is restated in its entirety as follows:
"Security Agreement" means each security agreement in
substantially the form of Exhibit F hereto entered into by the
Borrower or any Guarantor or Affiliate Guarantor for the
benefit of the Administrative Agent and the Lenders pursuant
to this Agreement, as amended or modified from time to time.
19
2.14 The fourth sentence of Section 2.16 is restated as follows:
"Interest accrued on each Eurodollar Advance and Eurocurrency Advance having an
Interest Period longer than one month shall also be payable on the last day of
each one-month interval during such Interest Period."
2.15 Subparagraph (c) of Section 2.23.2 of the Credit Agreement is
restated in its entirety as follows:
(c) 100% of the Net Cash Proceeds from any Asset Sale
(excluding the Net Cash Proceeds from any Asset Sale permitted
by Section 6.13(i), (iii) or (iv) and other than Net Cash
Proceeds not to exceed $500,000 for any item derived from the
sale of fixed assets to the extent permitted by Section
6.13(ii) which are used within 90 days of the date received
for the purposes allowed by Section 6.13(ii), and provided
that if, but only if, any cash proceeds are received pursuant
to any condemnation award or casualty insurance in connection
with any loss or damage to any Property which are not used to
repair or replace such Property within 90 days, they shall be
considered Net Cash Proceeds from an Asset Sale), which
payments shall be due (subject to the terms of the following
sentence) immediately upon completion of any Asset Sale. The
Borrower shall provide a certificate to the Administrative
Agent immediately following any sale of assets which, but for
the parenthetical in the preceding sentence as to Section
6.13(ii), would cause a prepayment under this Section
2.23.2(c), which certificate shall describe such sale of
assets and estimate when the corresponding Net Cash Proceeds
will be used to purchase assets of a comparable value, and if
such Net Cash Proceeds are not used within 90 days after such
sale or such earlier date when the Borrower has determined not
to purchase assets of comparable value with such Net Cash
Proceeds, the Borrower will then prepay the Loans with such
Net Cash Proceeds. All prepayments under this Section
2.23.2(c) shall be applied against the outstanding principal
balance of the Loans on a pro-rata basis (amounts so applied
to the Term Loans shall be applied in the inverse order of
maturity, and amounts so applied against the outstanding
principal balance of the Revolving Credit Loans shall be
permanent reduction of the aggregate amount of the Revolving
Credit Commitments); and
2.16 New subparagraphs (xv) and (xvi) are inserted at the end of
Section 6.1 of the Credit Agreement, stating as follows:
(xv) As soon as available and in any event within fifteen (15)
days after the end of each month, the consolidated unaudited
balance sheet of the Borrower and its Subsidiaries as of the
end of such month, and the related consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for
such month and for the period commencing at the end of the
previous fiscal year and ending with the end of such month, in
form and detail acceptable to the Administrative Agent,
setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of
the preceding fiscal year and the variances, if any, from the
budget and forecast delivered
20
pursuant to Section 4.2 of that certain Eighth Amendment to
Credit Agreement dated as of October 21, 2002, and together
with a duly executed compliance certificate in form
satisfactory to the Administrative Agent signed by an
authorized officer showing the calculations necessary to
determine compliance with this Agreement.
(xvi) As soon as available and in any event within
fifteen (15) days after the end of each month, the unaudited
balance sheet of each Affiliate Guarantor as of the end of
such month, and the related statements of income and cash
flows of such Affiliate Guarantor for such month and for the
period commencing at the end of the previous fiscal year and
ending with the end of such month, in form and detail
acceptable to the Administrative Agent, setting forth in each
case in comparative form the corresponding figures for the
corresponding date or period of the preceding fiscal year.
2.17 Section 7.2 of the Credit Agreement is restated as follows:
Nonpayment of principal of any Loan or Reimbursement
Obligations when due, or nonpayment of interest upon any Loan
or of any commitment fee or other Obligation under any of the
Loan Documents when due.
2.18 Reference in Section 7.4 to "Borrower or any Subsidiary" and be
deleted and "Borrower, any Subsidiary, any Affiliate Guarantor or the Principal"
shall be substituted in place thereof.
2.19 Section 7.14 of the Credit Agreement is restated as follows:
Except as otherwise permitted hereunder, any Guaranty shall
fail to remain in full force or effect or any action shall be
taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor or
Affiliate Guarantor shall fail to comply with any of the terms
or provisions of any Guaranty to which it is a party, or any
Guarantor or Affiliate Guarantor denies that it has any
further liability under any Guaranty to which it is a party,
or gives notice to such effect.
2.20 Section 11.1 of the Credit Agreement is restated as follows:
Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower or any
Guarantor or Affiliate Guarantor becomes insolvent (other than
as a result of the execution of any Guaranty required
hereunder), however evidenced, or any Default occurs, any and
all deposits (including all account balances, whether
provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or
owing by any Lender to or for the credit or account of the
Borrower and each Guarantor or Affiliate Guarantor (for P.I.M.
Management Company, limited to assets related to the Foreign
Issuers) may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the
Obligations, or any part hereof, shall then be due.
21
ARTICLE 3.
REPRESENTATIONS
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
3.1 The execution, delivery and performance by it of this Amendment are
within its powers, have been duly authorized by all necessary action and are not
in contravention with any law, rule or regulation, or any judgment, decree,
writ, injunction, order or award of any arbitrator, court or governmental
authority, of the terms of its Articles of Incorporation or By-laws, or any
contract or undertaking to which it is a party or by which it or its property is
or may be bound.
3.2 This Amendment is its legal, valid and binding obligation,
enforceable against it in accordance with the terms hereof.
3.3 No consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any nongovernmental
person or entity, including, without limitation, any of its creditors or
stockholders, is required on its part in connection with the execution, delivery
and performance of this Amendment or as a condition to the legality, validity or
enforceability of this Amendment.
3.4 After giving effect to the amendments herein contained, the
representations and warranties contained in Article V of the Credit Agreement
are true on and as of the date hereof with the same force and effect as if made
on and as of the date hereof (except for the Existing Defaults).
3.5 The Borrower and each Guarantor have granted to the Administrative
Agent, for the benefit of itself and the Lenders, a security interest in all of
the Borrower's and such Guarantor's present and future accounts, documents,
instruments, general intangibles, investment property, chattel paper, furniture,
fixtures, machinery, equipment, inventory and all other property and assets of
the Borrower and the Guarantors, including books and records relating thereto
and all substitutions, replacements, additions, accessories, products and
proceeds thereof, which security interests are duly perfected security interests
to the extent that perfection may be obtained by filing under the Uniform
Commercial Code. To the best of their knowledge, the Borrower and each Guarantor
have granted to the Administrative Agent, for the benefit of itself and the
Lenders, a perfected security interest in substantially all other property of
the Borrower and such Guarantor that cannot be perfected by filing under the
Uniform Commercial Code.
3.6 Other than Property owned by the Borrower, its Subsidiaries or the
Affiliate Guarantors or pledged by the Principal or Venture Sales & Engineering,
Corp., no other material Property is owned by the Principal or any Affiliate
(other than as previously disclosed in writing to the Administrative Agent)
which is used in the operation of the business of the Borrower and its
Subsidiaries.
22
ARTICLE 4.
ADDITIONAL COVENANTS OF THE BORROWER,
GUARANTORS AND AFFILIATE GUARANTORS
Each of the Borrower, the Guarantors and the Affiliate Guarantors, as
applicable, shall:
4.1 Promptly perform and observe its respective obligations set forth
in this Amendment.
4.2 Not later than October 21, 2002, prepare and deliver to the
Administrative Agent and the Lenders an interim business plan and detailed
budget forecast for the remainder of the year 2002 and through the remainder of
the Restructuring Period, including financial and cash flow projections, and
such business plan, budget forecast and projections shall be acceptable to the
Administrative Agent, the Lender Committee and the Required Lenders (once
approved by the Administrative Agent and the Lender Committee, subject to any
override by affirmative objection of the Required Lenders, such budget forecast
and projections shall be referred to as the "Approved Budget"). The Borrower's
submission of the proposed budget, including all financial and cash flow
projections, shall be based initially (i) with respect to cash forecast, on a
rolling thirteen (13) week period and then on a monthly basis for the remainder
of the Restructuring Period and (ii) with respect to financial covenants, on a
monthly basis for the Restructuring Period. Not later than Wednesday of each
week (commencing October 30, 2002), the Borrower shall update the cash flow
projections to reflect actual results from the prior week and on a cumulative
basis and to add an additional week to the rolling thirteen (13) week forecast,
and shall prepare and deliver to the Administrative Agent and the Lenders an
update to all applicable line items of the Approved Budget including a "budget
to actual" comparison and a description of any variances. Such updated forecast
shall become part of the "Approved Budget" if (x) the updated forecast evidences
anticipated compliance with the minimum Short-Term Liquidity requirement set
forth in Section 1.3f hereof and (y) the updated forecast evidences anticipated
compliance with the Adjusted Net Cash Flow requirement set forth in Section 1.3f
hereof within a cumulative negative variance of ten percent (10%) compared to
the original Approved Budget. If either clause (x) or clause (y) of the
preceding sentence does not pertain to the updated forecast, it shall become
part of the Approved Budget only upon approval by the Administrative Agent and
the Lender Committee, subject to any override by affirmative objection of the
Required Lenders. In no event shall any line item disbursements in respect of
(A) Deluxe Pattern Corporation, (B) Venture Sales & Engineering, Corp., (C) any
of the Borrower's Foreign Subsidiaries located in the United Kingdom, the Czech
Republic and Hungary, or (D) any capital expenditures of the Borrower and its
Subsidiaries, be modified from the respective line items set forth in the
original Approved Budget absent the prior written consent of the Required
Lenders.
4.3 Promptly deliver to the Lenders such information as has previously
been requested in writing by the Lenders, the Administrative Agent or the
Administrative Agent's financial consultant.
4.4 Cause each of the Affiliate Guarantors to complete the execution
and delivery of the Collateral Documents as required by the Administrative
Agent.
4.5 Not permit any amendment pertaining to any Subordinated
Indebtedness unless the form and substance of such amendment is acceptable to
the Lenders and the Administrative Agent as evidenced by the written consent of
the Administrative Agent, which may be withheld in the sole discretion of the
Administrative Agent and the Lenders.
23
ARTICLE 5.
MISCELLANEOUS.
5.1 Cross References. References in the Credit Agreement or in any
note, certificate, instrument or other document to the "Credit Agreement" shall
be deemed to be references to the Credit Agreement as amended hereby and as
further amended from time to time.
5.2 Expenses and Costs. The Borrower agrees to pay and to save the
Administrative Agent harmless for the payment of all reasonable and documented
fees, out-of-pocket disbursements, and other costs and expenses incurred by or
on behalf of the Administrative Agent arising in any way in connection with this
Amendment, or any other document relating to indebtedness described in the
recitals to this Amendment, including the fees and expenses of Xxxxxxxxx Xxxxxx
PLLC, counsel to the Administrative Agent, and Ernst & Young Corporate Finance
LLC, consultant to the Administrative Agent, and including any other domestic or
foreign counsel or consultants retained on behalf of the Administrative Agent,
and specifically including, without limitation, (a) the cost of any financial
audit or inquiry conducted by the Administrative Agent or its consultants, (b)
the fees and expenses of counsel for the Administrative Agent for the work
performed as a result of the Borrower's defaults or financial problems, and for
the preparation, examination and approval of this Amendment or any documents in
connection with this Amendment, (c) for the payment of all fees and
out-of-pocket disbursements incurred by the Administrative Agent, including
attorneys' fees, in any way arising from or in connection with any action taken
by the Administrative Agent or any Lender to monitor, advise, enforce or collect
the obligations described in the recitals hereto or to enforce any obligations
of the Borrower or any Guarantor or Affiliate Guarantor under this Amendment or
the other documents referred to herein, including any actions to lift the
automatic stay or to otherwise in any way participate in any bankruptcy,
reorganization or insolvency proceeding of the Borrower or any Guarantor or
Affiliate Guarantor or in any trial or appellate proceedings, and (d) any
expenses or fees (including attorneys' fees) incurred in relation to or in
defense of any litigation instituted by the Borrower, any Guarantor, any
Affiliate Guarantor or any third party against the Administrative Agent or any
Lender arising from or relating to the obligations described in the recitals
hereto or this Amendment, including any so-called "lender liability" action, to
the extent provided by Section 9.7 of the Credit Agreement. All of these
expenses and fees (including attorneys' fees) shall be part of the obligations
and indebtedness owing under the Credit Agreement, and shall be secured by all
of the collateral described in the Collateral Documents. In the event the
Borrower fails to pay any such fees, expenses and costs within five (5) days of
being invoiced therefor, the Administrative Agent or the Lenders, as the case
may be, shall be permitted to charge the accounts of the Borrower for such fees,
expenses and costs, without prejudice to any other rights or remedies of the
Administrative Agent or the Lenders. The rights and remedies of the
Administrative Agent and the Lenders contained in this paragraph shall be in
addition to, and not in lieu of, the rights and remedies contained in the Credit
Agreement, the Collateral Documents and as otherwise provided by law.
5.3 Waiver of Existing Defaults. The Borrower has requested that the
Lenders and the Administrative Agent waive the Existing Defaults subject to the
terms and conditions set forth herein. Pursuant to such request, the Lenders and
the Administrative Agent hereby waive the Existing Defaults for the period prior
to the effectiveness of this Amendment and, so long as there is no occurrence of
a new Default or Event of Default (for purposes hereof, a new Default or Event
of Default includes a new violation of any of the sections of the Credit
Agreement implicated in any of the Existing Defaults except to the extent
expressly permitted under the provisions of this Amendment), for the remainder
of the Restructuring Period, but not at any time thereafter. The Borrower
acknowledges and agrees that the waiver contained herein is a limited, specific
and one-time waiver as described above. Such limited waiver (a) shall not modify
or waive any other term, covenant or agreement contained in any of the Loan
Documents, and (b) shall not be deemed to have prejudiced any present or future
right or rights which the Administrative Agent or the Lenders now have or may
have under this Amendment, the Credit Agreement (as modified hereby) or the
other Loan Documents.
24
5.4 Release. The Borrower and each Guarantor and Affiliate Guarantor
represents and warrants that it is not aware of any claims or causes of action
by the Borrower, any Guarantor or any Affiliate Guarantor against the
Administrative Agent or any Lender, any participant lender or any of their
successors or assigns, and that it has no defenses, offsets or counterclaims
with respect to the indebtedness owed by the Borrower to the Lenders.
Notwithstanding this representation and as further consideration for the
agreements and understandings herein, the Borrower, Guarantors and Affiliate
Guarantors, on behalf of themselves and their respective employees, agents,
executors, heirs, successors and assigns, hereby release the Administrative
Agent and the Lenders, their respective predecessors, officers, directors,
employees, agents, attorneys, affiliates, subsidiaries, successors and assigns,
from any liability, claim, right or cause of action which now exists or
hereafter arises as a result of acts, omissions or events occurring on or prior
to the date hereof, whether known or unknown, including but not limited to
claims arising from or in any way related to the Credit Agreement or the
business relationship among the Borrower, the Guarantors, the Affiliate
Guarantors, the Administrative Agent and the Lenders.
5.5 Performance by Lenders and Administrative Agent; No Agency;
Borrower Remain in Control. Each Borrower and each Guarantor and Affiliate
Guarantor acknowledges and agrees that the Administrative Agent and the Lenders
have fully performed all of their obligations under the Credit Agreement and all
documents executed in connection with the Credit Agreement, and that all actions
taken by the Administrative Agent and the Lenders are reasonable and appropriate
under the circumstances and within their rights under the Credit Agreement and
all other documents executed in connection therewith and otherwise available.
The actions of the Administrative Agent and the Lenders taken pursuant to this
Amendment and the documents referred to herein are in furtherance of the efforts
of the Administrative Agent and the Lenders as secured lenders seeking to
collect the obligations owed to the Lenders. Nothing contained in this Amendment
shall be deemed to create a partnership, joint venture or agency relationship of
any nature between the Borrower and the Lenders or the Administrative Agent. The
Borrower, the Guarantors, the Affiliate Guarantors, the Administrative Agent and
the Lenders agree that notwithstanding the provisions of this Amendment, each
Borrower remains in control of its business operations and determines the
business plans (including employment, management and operating directions) for
its business.
5.6 Entire Agreement; Severability. The Credit Agreement, as previously
amended and as amended by this Amendment, constitutes the entire understanding
of the parties with respect to the subject matter hereof and may only be
modified or amended by a writing signed by the party to be charged. If any
provision of this Amendment is in conflict with any applicable statute or rule
of law or otherwise unenforceable, such offending provision shall be null and
void only to the extent of such conflict or unenforceability, but shall be
deemed separate from and shall not invalidate any other provision of this
Amendment.
5.7 No Other Promises or Inducements. There are no promises or
inducements which have been made to any signatory hereto to cause such signatory
to enter into this Amendment other than those which are set forth in this
Amendment. The Borrower and each Guarantor and Affiliate Guarantor acknowledges
that its authorized officers have thoroughly read and reviewed the terms and
provisions of this Amendment and are familiar with same, that the terms and
provisions contained herein are clearly understood by such Borrower, Guarantor
or Affiliate and have been fully and unconditionally consented to by such
Borrower or Guarantor, and that such Borrower, Guarantor or Affiliate has had
full benefit and advice of counsel of its own selection, or the opportunity to
obtain the benefit and advice of counsel of its own selection, in regard to
understanding the terms, meaning and effect of this Amendment, and that this
Amendment has been entered into by the Borrower, Guarantor and Affiliate
Guarantor freely, voluntarily, with full knowledge, and without duress, and that
in executing this Amendment, the Borrower, Guarantors and Affiliate Guarantors
are relying on no other representations, either written or
25
oral, express or implied, made by any other party hereto, and that the
consideration hereunder received by the Borrower has been actual and adequate.
5.8 Ratification. The Borrower agrees that the Credit Agreement, the
Collateral Documents and all other documents and agreements executed by the
Borrower or the Guarantors in connection with the Credit Agreement in favor of
the Administrative Agent or any Lender are ratified and confirmed and shall
remain in full force and effect as amended hereby, and that there is no set off,
counterclaim or defense with respect to any of the foregoing.
5.9 Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument. Facsimile copies of signatures shall be
treated as original signatures for all purposes under this Amendment. This
Amendment shall become effective when each of the following has been satisfied:
(a) Receipt by the Administrative Agent of counterparts of this
Amendment duly executed by the Borrower and the Required Lenders, and
counterparts of the Consent and Agreement annexed hereto duly executed by each
Guarantor, each Affiliate Guarantor and each identified holder of Subordinated
Indebtedness.
(b) Receipt by the Administrative Agent of copies, certified by the
Secretary or Assistant Secretary of the Borrower and each Guarantor and
Affiliate Guarantor, of its Board of Directors' resolutions and/or of
resolutions or actions of any other body authorizing the execution of this
Amendment and all Collateral Documents to be executed in connection herewith to
which the Borrower or such Guarantor or Affiliate Guarantor, as applicable, is a
party.
(c) Receipt by the Administrative Agent of an incumbency certificate,
executed by the Secretary or Assistant Secretary of the Borrower and each
Guarantor and Affiliate Guarantor, which shall identify by name and title and
bear the signatures of the Authorized Officers and any other officers of the
Borrower and each Guarantor or Affiliate Guarantor authorized to sign this
Amendment and all Collateral Documents to be executed in connection herewith to
which the Borrower and each Guarantor or Affiliate Guarantor is a party, upon
which certificate the Administrative Agent and the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower or such Guarantor
or Affiliate Guarantor.
(d) Receipt by the Administrative Agent of a written opinion of the
Borrower's, Guarantors' and Affiliate Guarantors' counsel, addressed to the
Administrative Agent and Lenders and in form and substance satisfactory to the
Administrative Agent.
(e) Receipt by the Administrative Agent of executed copies of all
Guaranties by the Affiliate Guarantors (to the maximum extent permitted by
applicable law and to the extent not prohibited by existing contractual
restrictions) and other documents in connection therewith requested by the
Administrative Agent, together with stock pledges by the Principal and his
Affiliates of their ownership in the Affiliate Guarantors and any holding
companies for any of such Affiliate Guarantors (such pledge to be limited to any
such holding company's interest in the Affiliate Guarantors and to 65% of each
Foreign Issuer), and together with a collateral assignment of the Borrower's
commission agreement with Venture Sales & Engineering, Corp., provided that the
Guaranties and stock pledges delivered for P.I.M. Management Company and Venco
#1 LLC and those related to the Foreign Issuers (i) shall be guaranties of
collection and the guaranties and stock pledges shall be enforceable only
following collection efforts against the Borrower, the Guarantors and the other
Affiliate Guarantors and, as to P.I.M. Management Company, shall be limited to
assets related to the Foreign Issuers and (ii) shall be released upon the
26
earlier to occur of (A) payment to the Administrative Agent (for the benefit of
the Lenders) of an amount not less than $50,000,000 from a sale or financing of
the Principal's Australia or South Africa operations or from one or more other
outside sources (not including the Borrower, any Subsidiary, any other
Guarantor, any other Affiliate Guarantor (other than P.I.M. Management Company,
Venco #1 LLC or the Foreign Issuers) or any other Collateral), which amount
shall be applied by the Lenders against the Obligations in the manner set forth
in Section 1.3n of this Amendment, or (B) payment to the Administrative Agent
(for the benefit of the Lenders) of an amount not less than $250,000,000 from a
sale of all or part of the Peguform business or assets (Peguform includes (x)
all of the Borrower's Foreign Subsidiaries other than its Canadian Subsidiary
and (y) Venture South Africa), which amount shall be applied by the Lenders
against the Obligations in the manner set forth in Section 1.3n of this
Amendment. The commitment of the Lenders to release the Guaranties and stock
pledges delivered for P.I.M. Management Company and Venco #1 LLC and those
related to the Foreign Issuers, as set forth in clause (ii) of the preceding
sentence, shall not, absent a separate written agreement duly authorized by the
Required Lenders, be deemed to modify or impair any rights of the Lenders with
respect to the Net Cash Proceeds generated by any Asset Sale, whether under
Section 2.23 of the Credit Agreement, Section 1.3n of this Amendment or
otherwise.
(f) Receipt by the Administrative Agent of executed copies of all
Collateral Documents and other documents in connection therewith requested by
the Administrative Agent, together with all necessary consents and other related
documents in connection therewith, insurance certificates, financing statements,
environmental reports, opinions of foreign counsel, original stock certificates
and related transfer powers (to the extent permitted by applicable law), UCC,
judgment and other lien and encumbrance searches, title searches and insurance,
surveys and other documents required by the Administrative Agent, provided that
certain items may be delivered within 10 days of the date hereof pursuant to the
terms of any post closing letter agreement approved by the Administrative Agent.
(g) Delivery of the most recent financial statements for each of the
Affiliate Guarantors, all of which shall be satisfactory to the Administrative
Agent.
(h) Receipt by the Administrative Agent of executed copies of the
Accommodation Documents.
(i) Delivery of such other agreements and documents, and the
satisfaction of such other conditions as may be reasonably required by the
Administrative Agent, and such evidence of the perfection and priority of all
liens and security interests as required by the Administrative Agent, all of
which shall be satisfactory to the Administrative Agent and its counsel to the
extent required by the Administrative Agent.
(j) Receipt by the Administrative Agent of the full amount of all fees
and disbursements owing as of October 21, 2002 to the Administrative Agent in
reimbursement for professional fees of its counsel, financial consultants and
other advisors.
(k) Receipt by the Administrative Agent of an executed and
countersigned commitment acceptable to the Administrative Agent governing
potential future financing for the Borrower. The Lenders hereby consent to a
priming lien on the assets of the Borrower and its Subsidiaries and Deluxe
Pattern Corporation in connection with such potential future financing.
5.10 Other Documents. The Borrower and each Guarantor and Affiliate
Guarantor agrees to execute and deliver any and all documents reasonably deemed
necessary or appropriate by the Administrative Agent or the Lenders to carry out
the intent of and/or to implement this Amendment.
27
5.11 Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Michigan without giving effect to
choice of law principles of such State.
5.12 Miscellaneous. This Amendment is made for the sole benefit and
protection of the Borrower, the Administrative Agent and the Lenders and their
respective successors and permitted assigns (provided that the Borrower shall
not be permitted, absent the prior written consent of all of the Lenders, to
assign any of its rights or obligations under this Amendment). No other person
or entity shall have any rights whatsoever under this Amendment. Time shall be
of the strictest essence in the performance of each and every one of the
Borrower's obligations hereunder.
5.13 Construction. This Amendment shall not be construed more strictly
against the Lenders or the Administrative Agent merely by virtue of the fact
that the same has been prepared by the Lenders and the Administrative Agent or
their counsel, it being recognized that the Borrower, the Administrative Agent
and the Lenders have contributed substantially and materially to the preparation
of this Amendment, and each of the parties hereto waives any claim contesting
the existence and the adequacy of the consideration given by any of the other
parties hereto in entering into this Amendment.
5.14 Headings. The headings of the various paragraphs in this Amendment
are for convenience of reference only and shall not be deemed to modify or
restrict the terms or provisions hereof.
5.15 Waiver of Jury Trial; Consent to Jurisdiction. (a) The Borrower,
each Guarantor, each Affiliate Guarantor, each Lender and the Administrative
Agent hereby specifically ratifies and confirms the waiver of jury trial set
forth in Section 14.3 of the Credit Agreement. Without limiting the generality
of the preceding ratification and confirmation, the Borrower, each Guarantor,
each Affiliate Guarantor, each Lender and the Administrative Agent, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waives any right any of them may have to a trial
by jury in any litigation or proceeding based upon or arising out of this
Amendment or any related instrument or agreement or any of the transactions
contemplated by this Amendment or any conduct, dealing, statements (whether oral
or written) or actions of any of them. None of the Borrower, the Guarantors, the
Affiliate Guarantors, the Lenders or the Administrative Agent shall seek to
consolidate, by counterclaim or otherwise, any such action in which a jury trial
has been waived with any other action in which a jury trial cannot be or has not
been waived. These provisions shall not be deemed to have been modified in any
respect or relinquished by any party hereto except by a written instrument
executed by such party.
(b) Each Borrower and each Guarantor and Affiliate Guarantor agrees
that any legal action or proceeding with respect to this Amendment or any
related instrument or agreement, including the Credit Agreement as previously
amended and as amended hereby, or with respect to the transactions contemplated
hereby, may be brought in any court of the State of Michigan, sitting in or
having jurisdiction over the County of Wayne, Michigan, or in any federal court
located within the Eastern District of Michigan, and Borrower, Guarantors and
Affiliate Guarantors hereby submit to and accept generally and unconditionally
the non-exclusive jurisdiction of those courts with respect to their person and
property and irrevocably consent to service of process in connection with any
such action or proceeding by mailing such service of process (certified or
registered, if capable of certification or registration) to Borrower and/or
Guarantors or Affiliate Guarantors at the address they may have from time to
time provided to the Administrative Agent. Borrower, Guarantors and Affiliate
Guarantors hereby irrevocably waive any objection based upon jurisdiction,
improper venue or forum non conveniens in any such suit or proceeding in the
above-described courts. Nothing contained herein shall limit the right of the
Administrative Agent or the Lenders to serve process in any other manner
permitted by law or limit the right of the Administrative Agent or the Lenders
to commence any such action or
28
proceeding in the courts of any other jurisdiction. Any judicial proceeding by
the Borrower or any Guarantor or Affiliate Guarantor against the Administrative
Agent or any Lender involving this Amendment shall be brought only in a court in
Xxxxx County, Michigan or federal court located within the Eastern District of
Michigan.
5.16 Notices to the Administrative Agent. Pursuant to Section 13.2 of
the Credit Agreement, future notices to the Administrative Agent should be
addressed to the attention of Xxxxxxx Xxxxxxx, Il1-0631, 1 Bank Xxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000, telephone 000-000-0000, facsimile 000-000-0000,
with a copy to Xxxxx X. Xxxxxxxx, XX0-0000, 1 Bank Xxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, telephone 000-000-0000, facsimile 000-000-0000, and with a copy to
Xxxxxxx X. Xxxxxxx, Xxxxxxxxx Xxxxxx PLLC, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, telephone 000-000-0000, facsimile 000-000-0000.
[Signatures next page]
29
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the day and year first above
written.
BORROWER:
VENTURE HOLDINGS COMPANY LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
----------------------------------
PRINCIPAL:
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
(for the limited purposes as set forth
in the above Amendment)
30
LENDERS:
BANK ONE, NA, as Administrative Agent
and as a Lender
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE BANK OF NOVA SCOTIA, as Syndication
Administrative Agent and as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MIZUHO CORPORATE BANK, LTD.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK AUSTRIA (ZLANDERBANK)
CORPORATE FINANCE, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BEAR XXXXXXX & CO.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
31
BARCLAYS BANK PLC
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANK OF SCOTLAND
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
COMERICA BANK (DETROIT)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PROVIDENT BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
U.S. BANK NATIONAL ASSOCIATION f/k/a
FIRSTAR BANK, N.A.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
00
XXXXXXXX XXXX XX XXXXXX
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FIRSTRUST BANK
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
OCTAGON INVESTMENT PARTNERS II, LLC
By: OCTAGON CREDIT INVESTORS, LLC
As Sub-Investment Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
OCTAGON INVESTMENT PARTNERS III, LTD.
By: OCTAGON CREDIT INVESTORS, LLC
As Portfolio Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MASS MUTUAL LIFE INSURANCE
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
33
SIMSBURY CLO LTD
By: Massachusetts Mutual Life Insurance
Borrower as Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PERSEUS CDO I LTD
By: Massachusetts Mutual Life Insurance Co., as
Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BLACK DIAMOND CLO 2000 I LTD
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
34
XXX CAPITAL FUNDING, L.P.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ML CBO IV (Cayman) Ltd.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ELF Funding Trust I
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CYPRESS TREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First Allmerica
Financial Life Insurance Borrower as Portfolio Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
35
CYPRESS TREE INVESTMENT PARTNERS I, LTD.
By: Cypress Tress Investment Management Borrower,
Inc. as Portfolio Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
GENERAL ELECTRIC CAPITAL CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXX XXX & XXXXXXX CLO I LTD.,
By: Xxxxx Xxx & Farnham Incorporated,
As Portfolio Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MOUNTAIN CAPITAL CLO I, LTD.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ORIX FINANCIAL SERVICES, INC
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
36
ELC (CAYMAN) LTD. 1999 - II
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CREDIT SUISSE FIRST BOSTON
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PILGRIM AMERICA HIGH INCOME INVESTMENTS, LTD.
By: Pilgrim Investments, Inc.
as its investment manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as investment Advisor
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SRF TRADING, INC.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NATEXIS BANQUE
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
37
ARES III CLO LTD.
By: ARES CLO Management LLC,
Investment Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ARES IV CLO LTD.
By: ARES CLO Management IV, L.P.,
Investment Manager
By: ARES CLO XX XX, LLC,
Its Managing Member
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ARES V CLO LTD.
By: ARES CLO Management V, L.P.,
Investment Manager
By: ARES CLO GP V, LLC,
Its Managing Member
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ENDEAVOR
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PB CAPITAL CORP. NY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
38
APEX (IDM) CDO I
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CYPRESSTREE INVESTMENT PARTNERS II
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ELC CAYMAN CDO SERIES 1999-1
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ELC CAYMAN LTD. 2000-1
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX & CO
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX CLO 2001-01 LTD.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XX XXXXXXX MARKET VALUE FUND
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
39
KZH PAMCO LLC
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NEMEAN CLO
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SRV-HIGHLAND, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
UPPER COLUMBIA CAPITAL CO.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WHITNEY PRIVATE DEBT FUND
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SATELLITE SR. INCOME FUND II
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
40
MASTER SENIOR FLOATING RATE TRUST
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ORIX FINANCE CORP I
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
PRESIDENT & FELLOWS OF HARVARD COLLEGE
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment capital Advisors, LLC
Its Manager and pursuant to delegated authority
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
REGIMENT CAPITAL, LTD
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
Its Manager and pursuant to delegated authority
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
OCTAGON INVESTMENT PARTNERS IV, LLC
By: Octagon Credit Investors, LLC
as Portfolio Manager
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
41
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
UBS AG, STAMFORD BRANCH,
By: UBS Warburg, LLC
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CANPARTNERS INVESTMENTS, IV, LLC,
A California Limited Liability Borrower
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MOUNTAIN CAPITAL CLO II, LTD.
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MAGMA CDO LTD
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
42
XXXXXXX CDO LP
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXX COMMERCIAL PAPER INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PPM AMERICA SPECIAL INVESTMENTS FUND, LP
By: PPM AMERICA, INC., as its
attorney-in-fact
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
43
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
BANK LOAN INCOME PORTFOLIO
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisors
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisor
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By: /s/
---------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MARATHON SPECIAL OPPORTUNITY
MASTER FUND, LTD.
By: Marathon Asset Management, LLC
Its: Investment Manager and Authorized
Signatory
By: /s/
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
44
CONSENT AND AGREEMENT OF EXISTING GUARANTORS
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated thereby and agrees to all
terms and provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty, Collateral Document and all other
agreements executed by any of the undersigned in connection with the Credit
Agreement or otherwise in favor of the Administrative Agent or the Lenders
(collectively, the "Guarantor Documents") are hereby ratified and confirmed and
shall remain in full force and effect, and each of the undersigned acknowledges
that it has no setoff, counterclaim or defense with respect to any Guarantor
Document; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Lenders' obligation under the above Amendment and it is in its interest
and to its financial benefit to execute this consent and agreement.
VEMCO, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
-------------------------
VEMCO LEASING, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
-------------------------
VENTURE INDUSTRIES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
-------------------------
VENTURE HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Executive Vice President
-------------------------
45
VENTURE LEASING COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
------------------------
VENTURE MOLD & ENGINEERING
COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
------------------------
VENTURE SERVICE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
------------------------
VENTURE EUROPE, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
------------------------
VENTURE EU CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
------------------------
EXPERIENCE MANAGEMENT LLC
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President
------------------------
46
CONSENT AND AGREEMENT OF AFFILIATE GUARANTORS
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated thereby and agrees to all
terms and provisions of the above Amendment applicable to it;
(b) to the extent applicable, agrees to execute and deliver to the
Administrative Agent each Guaranty, Collateral Document and all other agreements
reasonably requested by the Administrative Agent in connection with the above
Amendment; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Lenders' obligation under the above Amendment and it is in its interest
and to its financial benefit to execute this consent and agreement.
VENTURE HEAVY MACHINERY LLC
By: /s/
-------------------------------
Title:
---------------------
VENTURE REAL ESTATE ACQUISITION
COMPANY
By: /s/
-------------------------------
Title:
---------------------
VENTURE EQUIPMENT ACQUISITION
COMPANY
By: /s/
-------------------------------
Title:
---------------------
REALVEN CORPORATION
By: /s/
-------------------------------
Title:
---------------------
47
DELUXE PATTERN CORPORATION
By: /s/
-------------------------------
Title:
---------------------
VENTURE REAL ESTATE, INC.
By: /s/
-------------------------------
Title:
---------------------
VENTURE AUTOMOTIVE CORPORATION
By: /s/
-------------------------------
Title:
---------------------
FARM & COUNTRY REAL ESTATE
COMPANY
By: /s/
-------------------------------
Title:
---------------------
PATENT HOLDING COMPANY
By: /s/
-------------------------------
Title:
---------------------
48
EXHIBIT A
Existing Defaults
1. Default under Sections 7.6 and 7.7 of the Credit Agreement caused by the
German Formal Insolvency Proceeding or the insolvency or any insolvency
proceeding of the Borrower's French Subsidiary (the "French Insolvency")
2. As of October 1, 2002, violation of representations in Sections 5.5, 5.7, 5.9
(foreign pensions), 5.12, 5.14, 5.21, 5.23, 5.24, 5.29, 5.30 and 5.32 of the
Credit Agreement, each caused by the German Formal Insolvency Proceeding or the
French Insolvency, thereby causing a Default under Section 7.1 of the Credit
Agreement.
3. As of October 1, 2002 and thereafter, violation of reporting requirements
under Section 6.1 of the Credit Agreement pertaining to the entities subject to
the German Formal Insolvency Proceeding or the French Insolvency, thereby
causing a Default under Section 7.4 of the Credit Agreement.
4. As of October 1, 2002 and thereafter, violation of Section 6.11 of the Credit
Agreement caused by debt incurred by the German Insolvency Proceeding
Subsidiaries in connection with German Formal Insolvency Proceeding or by the
Borrower's French Subsidiary in connection with any French Insolvency, in each
case to the extent required under such German Formal Insolvency Proceeding or
French Insolvency, thereby causing a default under Section 7.3 of the Credit
Agreement.
5. As of October 1, 2002 and thereafter, violation of Section 6.15 of the Credit
Agreement caused by liens granted on the assets of the entities subject to the
German Formal Insolvency Proceeding or the French Insolvency in connection with
the German Formal Insolvency Proceeding or the French Insolvency, as the case
may be, in each case to the extent required under such German Formal Insolvency
Proceeding or French Insolvency, thereby causing a Default under Section 7.4 of
the Credit Agreement.
6. As of October 1, 2002 and thereafter, violation of Section 6.19 of the Credit
Agreement caused by violation of payment restrictions in connection with the
German Formal Insolvency Proceeding or the French Insolvency, thereby causing a
Default under Section 7.3 of the Credit Agreement.
7. As of October 11, 2002, Default under Section 7.5 of the Credit Agreement.
8. Default under Sections 6.16, 7.10 and 7.17 of the Credit Agreement to the
extent caused by the German Formal Insolvency Proceeding or the French
Insolvency.
9. As of October 1, 2002 and thereafter, violation of the financial covenants
contained in Sections 6.25, 6.26, 6.27, 6.28 and 6.29 of the Credit Agreement,
caused by the German Formal Insolvency Proceeding or the French Insolvency,
thereby causing a default under Section 7.3 of the Credit Agreement.
49
