Exhibit
10.3


 


FOURTH AMENDMENT TO AMENDED AND RESTATED BUILD TO
SUIT INDUSTRIAL LEASE AGREEMENT


 


THIS FOURTH AMENDMENT TO AMENDED
AND RESTATED BUILD TO SUIT INDUSTRIAL LEASE AGREEMENT (this “Fourth
Amendment”) is made and entered into as of the 18th day of February, 2010, by and
between INDUSTRIAL REALTY PARTNERS, LLC, a Tennessee limited liability company
(“Lessor”), and IMPERIAL GROUP, L.P., a Delaware limited partnership (“Lessee”).
All capitalized terms which are used but not otherwise defined herein shall
have the same meanings ascribed to them in the Lease (hereinafter defined).


 


WITNESSETH:


 


WHEREAS, Lessor and Lessee entered into that
certain Amended and Restated Build to Suit Industrial Lease Agreement dated March 17,
2000, as amended by that certain First Amendment to Amended and Restated Build
to Suit Industrial Lease Agreement dated June 22, 2000, as further amended
by that certain Second Amendment to Amended and Restated Build to Suit
Industrial Lease Agreement dated August 1, 2000, as further amended by
that certain Third Amendment to Amended and Restated Build to Suit Industrial
Lease Agreement dated August 31, 2000 (as amended, the “Lease”);
and


 


WHEREAS, on October 8, 2009 (the “Petition
Date”), Lessee’s parent company, Accuride Corporation (“Accuride”),
filed a petition with the United States Bankruptcy Court for the District of
Delaware under chapter 11 of the Bankruptcy Code, Case No. 09-13349; and


 


WHEREAS,
Accuride  has filed its Third
Amended Plan of Reorganization for Accuride Corporation et al. (as
amended from time to time, the “Plan”) and Accuride  will
seek entry of an order confirming the Plan; and


 


WHEREAS, Lessor and
Lessee desire to amend the Lease with regard to the term and certain other
matters and desire to make such amendments effective as of the Effective Date
(as such term is defined in the Plan) of the Plan (the “Plan Effective Date”),
all as more particularly set forth herein.


 


NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as
follows:


 


1.             Effective Date.  The modifications
to the Lease reflected in this Amendment will be effective as of the Plan
Effective Date.


 


2.
            Term.  Section 4(A) of the Lease is hereby
amended in all respects necessary to reflect that the Initial Term is hereby
extended to the date which is ten (10) years from the Plan Effective Date.


 


3.             Rent.  Sections 5(A) and 5(B) are hereby
amended in all respects necessary to reflect that, commencing on the Plan
Effective Date, the Base Rent shall be $3.09 per square foot of the
Premises.  The Base Rent shall increase
by two percent (2%) per annum on the first (1st) anniversary of the Plan Effective Date and by two
percent (2%) per annum on each successive anniversary of the Plan Effective
Date thereafter.


 


4.             Purchase Option.  Section 36 is hereby amended to delete
the third grammatical sentence thereof and insert the following sentence in
lieu thereof:


 

















 


“In
the event that the Lessee does not enter into a binding contract to purchase
the Premises during such sixty (60) day period, then, subject to Lessee’s right
of first refusal set forth in Section 37 hereof and Lessee’s Option to
Purchase (hereinafter defined) set forth in Section 42 hereof, the Lessor
shall have the right to sell the Premises to a third party upon terms and
conditions acceptable to the Lessor.”


 


5.             Amendments to paragraphs 36 and 37.  The Lease is hereby amended by deleting the following
sentence which was added by the Third Amendment to the end of each of paragraph
36 and 37:


 


“In
the event Lessee purchases the Premises pursuant to this paragraph, Lessee
shall be entitled at the closing of the purchase thereof to a credit against
the purchase price in an amount equal to five (5%) percent of the gross
purchase price (provided, however, that the terms and provisions of this
paragraph are subject to the terms and provisions of that certain Specific
Assignment, Subordination, Non-Disturbance and Attornment by and among Lessor,
Lessee and Aid Association for Lutherans).”


 


6.             Right of Early Termination.  The following Section 41 is hereby added
to the Lease as if originally part of the Lease:


 


“41.         Right
of Early Termination.  Notwithstanding
anything to the contrary contained herein, Lessee shall have a continuing
option to terminate the Lease (“Termination Option”), which termination
may occur at any time on or after March 1, 2016.  If Lessee desires to exercise the Termination
Option, Lessee shall deliver Lessor written notice of Lessee’s exercise of the
Termination Option, which notice must be received by Lessor no later than six (6) months
prior to the desired termination date, which will be specified in the Lessee’s
notice (the “Early Termination Date”) and which notice shall be
accompanied by a termination fee in an amount equal to six (6) months of
rent at the then applicable base rate, which such termination fee shall be
fully refundable to Lessee in the event the Lease is not terminated for any
reason.  If Lessee exercises its
Termination Option in accordance with the foregoing, this Lease shall terminate
as of 11:59 p.m. on the Early Termination Date.


 


7.
            Option to Purchase.  The following Section 42 is hereby added
to the Lease as if originally part of the Lease:


 


“42.         Option
to Purchase:  At any time prior to
the expiration of the then current term of this Lease (i.e., the Initial Term
or any Renewal Term, as applicable) Lessee, upon giving written notice to
Lessor (the “Option Notice”), shall have the right to purchase the
Premises as set forth in this Section 42 (the “Option to Purchase”).  The purchase price shall be the Fair Market
Value of the Premises as established pursuant to the appraisal procedure
described on Exhibit “C” attached hereto.  If the Option to Purchase is exercised (i) the
purchase price shall be paid at closing, which shall take place ninety (90)
days following Lessor’s receipt of the Option Notice; (ii) Lessee shall
take title subject only to those encumbrances of record in the Register’s
Office of Sumner County, Tennessee as of the Plan Effective Date (exclusive any
instrument evidencing a monetary lien, all of which shall be satisfied by
Lessor and released of record at or prior to closing) and real property taxes
for the then current year, but Lessee shall not be obligated to take title
subject to any other lien or other encumbrance; (iii) adjustment and
prorations for taxes, utility charges and insurance premiums are to be made as
of the date of closing; (iv) the deed shall be a special warranty deed
conveying marketable and insurable fee simple title to the Premises, subject
only to the exceptions hereinabove referred to; (v) Lessor shall furnish
Lessee an ALTA (Form B) owner’s policy of title insurance insuring title
to the Premises subject only to the foregoing exceptions and to such other
exceptions as Lessee may waive in writing; and (vi) 


 


2

















 


Lessor
will pay all customary closing costs except that Lessee shall be responsible
for recording costs, transfer taxes and its own attorney’s fees.


 


The parties hereby acknowledge and agree that the Option to Purchase
set forth in this Section 42 shall be independent of and in addition to
the purchase option set forth in Section 36 hereof.”


 


8.
            Memorandum of Lease.  On the Plan Effective Date, the parties
hereto agree to execute and deliver an amendment to the Memorandum of Lease, or
other such instrument in recordable form, memorializing the Option to Purchase
set forth in Section 42 hereof.


 


9.             Exhibit C.  Exhibit C attached hereto is hereby
incorporated into and made a part of the Lease.


 


10.           Counterparts.  This Amendment may be executed in several
counterparts, as long as each party to this Amendment executes at least one
such counterpart.  Each of such
counterparts shall be an original but all of the counterparts, when taken
together, shall constitute one and the same instrument and shall become
effective when each party hereto has executed at least one such counterpart.
The parties hereto agree that a facsimile signature shall constitute an
original signature hereunder.


 


11.           No Other Modifications.  Except as expressly provided hereby, the
terms and provisions of the Lease shall continue in full force and effect.


 


[signature page follows]


 


3

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day first above written.


 


 


	
   

  	
  LESSOR:

  
	
   

  	
   

  
	
   

  	
  INDUSTRIAL
  REALTY PARTNERS, LLC, a Tennessee limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe A. Hicks

  
	
   

  	
  Name:

  	
  Joe
  A. Hicks

  
	
   

  	
  Title:

  	
  Chief
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LESSEE:

  
	
   

  	
   

  
	
   

  	
  IMPERIAL
  GROUP, L.P., a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William M. Lasky

  
	
   

  	
  Name:

  	
  William
  M. Lasky

  
	
   

  	
  Title:

  	
   

  



 


 


Guarantor
joins in the execution of this Fourth Amendment to the Lease solely for the
purposes of consenting to the modifications to the Lease made herein.


 


GUARANTOR:


 


TRANSPORTATION
TECHNOLOGIES


INDUSTRIES,
INC., a Delaware corporation


 


	
  By:

  	
  /s/
  William M. Lasky

  	
   

  
	
  Name:

  	
  William
  M. Lasky

  	
   

  
	
  Title:

  	
   

  	
   

  



 


4

















 


JOINDER TO FOURTH AMENDMENT TO


AMENDED AND RESTATED BUILD TO SUIT INDUSTRIAL LEASE AGREEMENT


 


The
undersigned, being the successor in interest to Aid Association for Lutherans
(the “Lender”) and the holder of the indebtedness which is secured, in
part, by a deed of trust lien on the Premises, joins in the execution of this
Fourth Amendment to Amended and Restated Build to Suit Industrial Lease
Agreement for the sole purposes of (a) consenting to the terms of such
amendment, (b) agreeing that, nothwithstanding anything to the contrary
set forth in that certain Specific Assignment Subordination, Nondisturbance and
Attornment Agreement dated as of September 19, 2000, by and between
Lessee, Lessor and Lender, of record at Book 1163, page 690, Register’s
Office for Sumner County, Tennessee, Lender hereby agrees that the early
termination option set forth in Section 41 of the Lease (as amended) shall
survive any foreclosure of Lender’s lien on the Premises, any purchase
conducted in connection therewith, or any conveyance pursuant to a deed-in-lieu
of foreclosure (collectively, the “Default Conveyances”) and be binding
upon any successors to Lessor following a Default Conveyance, subject to the
terms of the Lease (as amended), and (c) agreeing that Lender shall give
written notice to Tenant prior to any foreclosure by Lender of its lien on the
Premises.


 


Lender:


 


Thrivent
Financial for Lutherans


 


	
  By:

  	
  /s/
  Wayne C. Streck

  	
   

  
	
  Name:

  	
  Wayne
  C. Streck

  	
   

  
	
  Title:

  	
  Ass’t
  Vice President

  	
   

  



 


	
  Date:

  	
  2-18-2010

  	
   

  



 


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Exhibit C


 


Appraisal Process to Establish Fair
Market Value


 


“Fair Market Value” of the Premises shall
mean the value of the Premises as determined in this Exhibit “C”.  Not later than the (10) business days
after Lessor’s receipt of the Option Notice, Lessor and Lessee shall each
select one Appraiser (as defined below) to participate in the determination of
Fair Market Value .  For all purposes
under this Lease, the Fair Market Value of the Premises shall be based on the
Fair Market Value of the Premises unencumbered by this Lease.  Within five (5) business days of such
selection, the Appraisers so selected by Lessor and Lessee shall select a third
Appraiser.  The three (3) selected
Appraisers shall each determine the Fair Market Value of the Premises within
thirty (30) days of the selection of the third appraiser.  Each of Lessee and Lessor shall pay the fees
and expenses of any Appraiser which such party appoints pursuant to this Exhibit plus
50% of the cost of the third appraiser.


 


In the event either Lessor or Lessee
fails to select a Appraiser within the time period set forth in the foregoing
paragraph, the Appraiser selected by the other party shall alone determine the
Fair Market Value of the Premises in accordance with the provisions of this Exhibit and
the Fair Market Value so determined shall be binding upon Lessor and Lessee.


 


In the event the Appraisers selected by
Lessor and Lessee are unable to agree upon a third Appraiser within the time
period set forth in the first paragraph of this Exhibit, either Lessor or
Lessee shall have the right to apply at their mutual expense to the presiding
judge of the court of original trial jurisdiction in the county in which the
Premises is located to name the third Appraiser.


 


Within five (5) business days after
completion of the third Appraiser’s appraisal, all three Appraisers shall meet
and a majority of the Appraisers shall attempt to determine the Fair Market
Value of the Premises.  If a majority are
unable to determine the Fair Market Value at such meeting, the three appraisals
shall be added together and their total divided by three.  The resulting quotient shall be the Fair
Market Value of the Premises.  If,
however, either or both of the low appraisal or the high appraisal are more
than ten percent (10%) lower or higher than the middle appraisal, any such
lower or higher appraisal shall be disregarded. 
If only one appraisal is disregarded, the remaining two appraisals shall
be added together and their total divided by two, and the resulting quotient
shall be such Fair Market Value.  If both
the lower appraisal and higher appraisal are disregarded as provided herein,
the middle appraisal shall be such Fair Market Value.  In any event, the result of the foregoing
appraisal process shall be final and binding.


 


Lessor and Lessee will exercise their
respective best efforts to expedite the appraisal process and will cooperate
fully and with all deliberate speed with each other and with all appraisers in
order to allow the determination of Fair Market Value to be finally
completed.  Notwithstanding anything else
in this Exhibit, if any appraiser appointed hereunder fails to complete his or
her report  within thirty (30) days
of his or her appointment, the Fair Market Value of the Premises will be
determined by reference to the other report or reports completed within such
period.


 


“Appraiser” shall mean an appraiser
licensed or otherwise qualified to do business in Tennessee and who has
substantial experience in performing appraisals of facilities similar to the
Premises.


 


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