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EXHIBIT 10.23
VENTURE REAL ESTATE ACQUISITION COMPANY -
VENTURE INDUSTRIES CORPORATION
USAGE AGREEMENT
WHEREAS VENTURE REAL ESTATE ACQUISITION COMPANY and VENTURE INDUSTRIES
CORPORATION (the "Parties") desire to enter into a Usage Agreement (the
"Agreement") concerning the real estate located at 17085 Masonic, Fraser,
Michigan (the "Property") for a usage fee as set forth herein in more detail;
AND WHEREAS the Parties have agreed to the following terms;
NOW THEREFORE, THIS USAGE AGREEMENT is hereby made and entered into as of
February ___, 1995 (hereinafter sometimes referred to as the "Commencement
Date"), by and between VENTURE REAL ESTATE ACQUISITION COMPANY (hereinafter
together with its successors and assigns, referred to as "Owner"), and VENTURE
INDUSTRIES CORPORATION (hereinafter referred to as "User"), who hereby amend, as
of the effective date, all other agreements, if any, by and between the parties
concerning the rental or usage of the Property as follows:
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1. USAGE FEE PAYABLE BY USER. (A) User, in consideration and in respect
of the right granted by Owner to use the Property, shall pay to Owner for any
one month a sum equal to an allocated share of Owner's total daily costs related
to the Property for such month (the "Total Daily Costs"). Such allocated share
of Total Daily Costs shall be calculated based on the number of days the
Property is used or reserved by User during the month in question.
(B) Initially, under this Usage Agreement, the Total Daily Costs shall be
determined to be _________________________ Dollars ($______) per day (the "Daily
Charge"); provided that:
(i) if User only uses or reserves a portion of the Property during
any one day, then the Daily Charge shall be prorated to reflect the value of the
Property so used or reserved relative to the value of all of the Property;
(ii) if Owner and User use or reserve the Property during the same
day, User's share of the Daily Charge shall be calculated based upon the
relative use for such day;
(iii) in addition, the Daily Charge shall be adjusted from time to
time by agreement of the parties to reflect the relative costs of any additions
to or deletions to the Property.
(C) if Owner utilizes any of User's employees, there shall be a credit to
User for each hour of such use calculated based on the cost of such labor,
including wages, benefits, payroll taxes, and such employee's fair share of the
overhead.
(D) Said sum shall be payable monthly at Owner's place of business or such
other place as Owner shall direct in writing.
(E) The due date of the first payment shall be the date in the next
calender month which numerically corresponds to the Effective Date (or if there
is no such date in the next calender month,
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the last date of such month) [such period being herein considered a "month"],
with subsequent payments being due at one month intervals.
(F) Nothing herein to the contrary withstanding, User shall not be liable
for any payments to Owner accrued after this Agreement has been terminated.
2. USAGE RIGHT. (A) In consideration of the payment of Usage Fees, Owner
hereby agrees to make available for use on Owner's premises, on an as is, where
is basis, and (ii) grants to User the right, subject to paragraph 2(B) and
Section 4, to use the Property during the period from the Effective Date to the
date of termination of this Agreement.
(B) Owner shall be permitted to use any of the Property and any of User's
employees not being utilized by User (User shall receive a credit against any
Usage Fees owed under paragraph 1(A), for the out-of-pocket cost of any such
labor), subject to the following conditions. At any time that Owner desires
that itself or a third party use such Property (or any portion thereof) or any
of User's employees, (i) Owner shall give User not less than ten (10) days prior
notice of the dates of intended use, and (ii) the scheduling of such use shall
not unreasonably interfere with the requirements of User's business.
3. TERMINATION. (A) Owner shall have the option to terminate this
Agreement (i) on or after the eleventh (11th) anniversary of the Effective Date;
(ii) if both the Senior Secured Notes, Series A, due March 15, 2000 and the
Senior Subordinated Notes, due April 1, 2004, are fully paid, redeemed or
defeased in accordance with their terms, or (iii) as to any portion of the
Property, if (a) User shall fail to use or reserve such Property for at least
thirty (30) days in any sixty (60)
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consecutive day period (the "Minimum Amount"), (b) following such failure,
Owner shall give User a written notice of termination which shall state that
such Property shall cease to be subject to this Agreement and that such
termination will occur on a date specified in such notice which shall be not
earlier than twenty (20) days from the date of such notice (the "Termination
Date") unless prior thereto User pays Owner an amount, which when added to the
amount already paid pursuant to paragraph 1(A), would equal the sum which would
have been paid if such Property had been used the Minimum Amount during such
period and (c) User shall fail to pay such additional amount for the period in
question to Owner prior to the Termination Date.
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4. CONTINUOUS OWNER ACCESS. Owner shall have reasonable access to the
Property subject to the convenience and requirements of User's business and upon
not less than two (2) days prior written notice in order to (i) make repairs and
(ii) do testing.
5. CARE AND REPAIR OF PROPERTY. Except as provided in Section 6, Owner
shall keep the Property in good repair, condition, and working order, and shall
furnish any and all parts and labor required for that purpose.
6. LOSS. User shall utilize the Property in a careful and proper manner
which reasonably follows the common methods of usage of such Property, and in a
manner fit for the usages which the Property itself is customarily used, and in
compliance with all applicable laws, ordinances and regulations.
User shall be liable to Owner for any loss or damage to the Property which
results from User's negligence or misuse of the Property. Otherwise, Owner,
subject to User's obligation to insure the Property in accordance with Section
9, shall bear the entire risk of loss of and damage to the Property.
User shall be liable for any loss, damage or liability to third parties,
including User's invitees, employees, agents and sub-contractors as a result of
the use of such Property by User, its employees, agents, sub-contractors (other
than Owner and its agents) and invitees.
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7. ALTERATIONS AND IMPROVEMENTS TO THE PROPERTY. Provided that permission
of Owner is first obtained, User may, at its sole cost and expense, modernize,
add to and improve the Property from time to time. Upon the termination of the
right of User to such any particular piece of Property or all of the Property,
User shall, at its own expense, have the right to remove from such Property any
such modernization, addition or improvement if User has first given Owner thirty
(30) day's written notice of User's unexpensed or unamortized cost basis in such
modernization, addition or improvement and Owner has not tendered the same.
8. INSURANCE. User shall maintain, and provide Owner with a copy thereof,
a liability policy which shall name Owner as an additional insured party, and
shall provide (a) comprehensive insurance against risk of loss and damage to the
Property and (b) comprehensive general liability insurance, including blanket
contractual coverage against claims for, or arising out of, bodily injury,
death, or property damage from the Property. The initial limits of coverage
shall be, if dual limits are provided, not less than FIVE MILLION DOLLARS
($5,000,000.00) with respect to injury or death of a single person and not less
than TEN MILLION DOLLARS ($10,000,000.00) with respect to any one occurrence;
and not less than FIVE MILLION DOLLARS ($5,000,000.00) with respect to any one
occurrence of property damage.
9. ASSIGNMENT. The rights of Owner and User hereunder shall not be
assigned, pledged, transferred or otherwise disposed of without the prior
written consent of the other party, which consent shall not be unreasonably
withheld.
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10. EVENTS OF DEFAULT AND REMEDIES THEREFOR. An event of default shall
occur and be continuing, and Owner shall have the right to terminate this
Agreement at any time thereafter (whether or not said Owner is deemed to have
waived its right to so terminate) and pursue any remedy available to Owner at
law or equity, if User (a) ceases to do business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to pay
its debts as they become due, or files a voluntary petition in bankruptcy; or
(b) within sixty (60) days after the commencement of any proceedings seeking
reorganization, arrangement, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law of regulation, such proceeding
shall not have been dismissed, or if within sixty (60) days after the
appointment without consent or acquiescence of any trustee, receiver or
liquidator of it or of all or any substantial part of its assets and properties,
such appointment shall not be vacated; provided, that if the Owner of the
Property is no longer Venture Real Estate Acquisition Company or an affiliate of
Venture Real Estate Acquisition Company, or Xxxxx X. Xxxxxx or an affiliate of
Xxxxx X. Xxxxxx and such Owner did not acquire its rights hereunder in breach of
Section 9 and is not otherwise in breach of this Agreement, an additional event
of default shall occur if User fails to perform any material provision of this
Agreement and such failure continues for a period of thirty (30) days after
notice thereof, time being of the essence.
11. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Michigan.
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12. INTEGRATION. This writing constitutes the entire agreement between the
parties as to the matter set forth herein and shall supersede all previous or
contemporaneous negotiations, commitments, and writings with respect to the
matters set forth herein.
13. MODIFICATION. The parties may, by written instrument, amend, modify or
extend this Agreement. This Agreement may only be so amended, modified or
extended by a writing signed by authorized representatives of both parties. The
terms and provisions of this Agreement shall prevail over any conflicting,
additional, or other terms appearing in any notice, request, instruction,
invoice, or other writing submitted by either party under this Agreement at any
time.
14. WAIVER. No waiver of any provision or breach of this Agreement shall be
construed as a continuing waiver, or shall constitute a waiver of such
provisions or breach, or of any other provision or breach.
15. HEADINGS, INTERPRETATION. The paragraph headings herein are included
solely for convenience and shall in no event affect or be used in connection
with the interpretation of this Agreement. Each separate provision of this
Agreement shall be treated as severable, to the end that if any one or more such
provisions shall be adjudged or declared illegal, invalid, or unenforceable,
this Agreement shall be interpreted and shall remain in full force and effect,
as though such provision or provisions had never been contained in this
Agreement.
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16. NOTICES. Any notice, demand, delivery, invoice, or other writing
required or desired to be given or made pursuant to this Usage Agreement shall
be in writing, and shall be deemed to have been given and received, and to be
effective for all purposes, the third business mail day after having been mailed
via the United States Postal Service in an envelope properly stamped and
addressed to the proper party at the address (or such other address as the
recipient shall have designated in writing) that follows:
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If to Owner: VENTURE REAL ESTATE ACQUISITION COMPANY
33662 Xxxxx X. Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
If to User: VENTURE INDUSTRIES CORPORATION
33662 Xxxxx X. Xxxxx Dr.
Fraser, Michigan 48026
IN WITNESS WHEREOF, the Owner and User have executed this Usage Agreement
as of the Commencement Date.
OWNER:
VENTURE REAL ESTATE ACQUISITION COMPANY, a
Michigan Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX,
its Vice President
USER:
VENTURE INDUSTRIES CORPORATION, a Michigan
Corporation
By: /s/ Xxxxxxx X. Xxxxxxx,
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XXXXXXX X. XXXXXXX,
its Vice President
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VENTURE REAL ESTATE ACQUISITION COMPANY -
VENTURE INDUSTRIES CORPORATION
ADDENDUM TO USAGE AGREEMENT
WHEREAS VENTURE REAL ESTATE ACQUISITION COMPANY and VENTURE INDUSTRIES
CORPORATION (the "Parties") are entering into a Usage Agreement (the
"Agreement") concerning the real estate located at 17085 Masonic, Fraser,
Michigan (the "Property") for a usage fee (the "Daily Charge") set forth
therein;
NOW THEREFORE, in order to induce VENTURE INDUSTRIES CORPORATION to enter
into such Agreement, the Parties hereby agree that VENTURE INDUSTRIES
CORPORATION shall receive six (6) months of free rent, beginning with the first
month such Agreement is in effect.
OWNER:
VENTURE REAL ESTATE ACQUISITION COMPANY, a
Michigan Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX,
its Vice President
USER:
VENTURE INDUSTRIES CORPORATION, a Michigan
Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
XXXXXXX X. XXXXXXX,
its Vice President
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