EXHIBIT 10.2
FITTINGS FACILITY SUBLEASE
THIS SUBLEASE is made and entered into as of this 9th day of
May, 2003, by and between Metaldyne Company LLC, a Delaware limited liability
company ("LANDLORD"), and Fittings Products Co., LLC, a Delaware limited
liability company ("TENANT").
1. DEFINITIONS.
A. Premises: That certain land (the "LAND") situated in the City of Livonia,
County of Wayne and State of Michigan and more particularly described in Annex 1
attached hereto, together with a building containing approximately 60,390 square
feet (the "BUILDING") and all other existing and future improvements and rights
described in the Prime Lease as the "DEMISED PREMISES."
B. Tenant's Address (for notices): 39400 Woodward Avenue, Suite 130, Bloomfield
Hills, MI 48304.
C. Landlord's Address (for notices): 47603 Halyard Drive, Plymouth, Michigan
48170, Attn: Chief Financial Officer.
D. Prime Landlord: Kojaian MD Livonia, L.L.C.
E. Prime Landlord's Address (for notices): c/o Kojaian Management Corporation,
39400 Woodward Avenue, Suite 250, Bloomfield Hills, Michigan 48304, Attn: C.
Michael Kojaian.
F. Prime Lease and all amendments thereto: Lease dated, January 23, 2002, by and
between Prime Landlord and Landlord, and all amendments, amendments and
restatements and supplements thereto, in accordance with the provisions of this
Sublease.
G. Master Lease: That certain Master Lease Agreement referenced in the Prime
Lease, as amended by that certain Amendment to Master Lease Agreement, dated
June 6, 2002, and all further amendments, amendments and restatements and
supplements thereto, in accordance with the provisions of this Sublease.
H. Term: For the remainder of the term of the Prime Lease (including all renewal
terms exercised pursuant to the provisions of the Prime Lease), minus one (1)
day.
I. Commencement Date: The Effective Time (as defined in the Asset Purchase
Agreement).
J. Termination Date: One (1) day less than the term of the Prime Lease,
including all renewal terms exercised pursuant to the terms and conditions of
this Sublease.
K. Rent: The "RENT," as defined in the Prime Lease, and all other payment
obligations of the Landlord under the Prime Lease including but not limited to,
(i) the asset management fee described in Section (a)(i) of the Prime Lease and
(ii) the obligation to pay Taxes and utilities as described in Section 5 of the
Prime Lease.
L. Payee of Rent: The Prime Landlord.
M. Address for Payment of Rent: c/o Kojaian Management Corporation, 39400
Woodward Avenue, Suite 250, Bloomfield Hills, Michigan 48304, Attn: C. Michael
Kojaian.
N. Security Deposit: Forty Three Thousand Five Hundred and Three 00/100 Dollars
($43,503.00) in the form of cash or a letter of credit issued by an "APPROVED
BANK" as defined in the Prime Lease.
O. Tenant's Use: All uses permitted by the Prime Lease.
P. Asset Purchase Agreement: The Asset Purchase Agreement, dated as of May 9,
2003, by and among Trimas Corporation, Metaldyne Corporation and Metaldyne
Company LLC.
Q. Losses: Any and all damages, losses, deficiencies, Liabilities, obligations,
penalties, judgments, settlements, claims, payments, fines, interest, costs and
expenses (including, without limitation, the costs and expenses of any and all
Actions (as defined in the Asset Purchase Agreement) and demands, assessments,
judgments, settlements and compromises relating thereto and the reasonable costs
and expenses of attorneys', accountants', consultants' and other professionals'
fees and expenses incurred in the investigation or defense thereof or the
enforcement of rights hereunder), including direct and consequential damages,
but excluding punitive damages (other than punitive damages awarded to any third
party against an Indemnified Party or a Tenant Indemnified Party).
R. Liabilities: Any and all indebtedness, liabilities or obligations, whether
accrued, fixed or contingent, mature or inchoate, known or unknown, reflected on
a balance sheet or otherwise, including, but not limited to, those arising under
any law, rule, regulation, Action (as defined in the Asset Purchase Agreement),
order, injunction or consent decree of any Governmental Authority (as defined in
the Asset Purchase Agreement) or any judgment of any court of any kind or any
award of any arbitrator of any kind, and those arising under any contract,
commitment or undertaking.
2. PRIME LEASE. Landlord is the tenant under the Prime Lease identified in
Section 1(F), bearing the date specified in Section 1(F). Landlord represents
and warrants to Tenant that (a) Landlord has delivered to Tenant a full and
complete copy of the Prime Lease, the Master Lease and all amendments thereto,
and all other agreements between Prime Landlord and Landlord relating to the
leasing, use and occupancy of the Premises, (b) the Prime Lease is, as of the
date hereof, in full force and effect and (c) no event of default has occurred
under the Prime Lease and, to Landlord's knowledge, no event has occurred and is
continuing which would constitute an event of default but for the requirement of
the giving of notice and/or the expiration of the period of time to cure.
3. SUBLEASE. Landlord, for and in consideration of the rents herein reserved and
of the covenants and agreements herein contained on the part of the Tenant to be
performed, hereby subleases to the Tenant, and the Tenant accepts from the
Landlord the Premises identified in Section 1(A).
4. TERM AND TERMINATION.
A. The Term of this Lease is identified in Section 1(H). The Commencement Date
is identified in Section 1(I). The Termination Date is identified in Section
1(J).
B. This Lease shall terminate in the event of the termination of the Prime
Lease.
5. POSSESSION. Landlord agrees to deliver possession of the Premises on or
before the Commencement Date in its condition as of the execution and delivery
hereof, reasonable wear and tear excepted. Landlord has made no representations
or warranties with respect to the condition of the Premises and Tenant
acknowledges that it is leasing the Premises in its "AS IS" condition.
6. TENANT'S USE. The Premises shall be used and occupied only for the Tenant's
Use set forth in Section 1(O).
7. RENT. Beginning on the Commencement Date, Tenant agrees to pay the Rent set
forth in Section 1(K) to the Payee specified in Section 1(L),at the address
specified in Section 1(M), or to such other payee (which shall be
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the Landlord or its nominee) or at such other address as may be designated by
notice in writing from Landlord to Tenant, without prior demand therefor and
without any deduction or setoff whatsoever. During the Term hereof, Rent shall
be paid in accordance with the Prime Lease. Tenant's covenant to pay Rent is
independent of every other covenant in this Sublease. If Rent is not paid when
due, Tenant shall pay, relative to the delinquent payment, an amount equal to
the sum which would be payable by Landlord to Prime Landlord for an equivalent
default under the Prime Lease. If any installment of Rent provided for herein is
not paid when due, Tenant shall pay any late charge or interest obligation
required to be paid by Landlord under the Prime Lease.
8. UTILITIES AND SERVICES. Landlord shall not be responsible for providing
Tenant with any utilities or services to the Premises. The Premises shall be
provided utilities and services as set forth in the Prime Lease.
9. TENANT'S OBLIGATIONS. Tenant shall at all times perform each and every
obligation of Landlord under the Prime Lease during the entire Term of this
Sublease and shall promptly notify Landlord of any material failure to so
perform.
10. QUIET ENJOYMENT. Landlord represents that is it has full power and authority
to enter into this Sublease. So long as Tenant is not in default in the
performance of its covenants and agreements in this Sublease, Tenant's quiet and
peaceable enjoyment of the Premises shall not be disturbed or interfered with by
Landlord, or by any person claiming by, through, or under Landlord.
11. TENANT'S INSURANCE. Tenant shall procure and maintain, at its own cost and
expense, such liability insurance (including commercial general liability,
business automobile liability, workers' compensation and employer's liability)
as is required to be carried by Landlord under the Prime Lease, naming Landlord,
Prime Landlord and Prime Landlord's mortgagee, as additional insureds (except as
to Workers' Compensation and Employer's Liability), and in accordance with the
requirements of the Prime Lease. Tenant shall also maintain such commercial
property insurance, boiler and machinery insurance and business interruption
insurance as is required to be maintained by Landlord under the Prime Lease,
naming Prime Landlord and its mortgagee as loss payees, where required, and in
accordance with the requirements of the Prime Lease. To the extent the Prime
Lease requires Landlord to insure leasehold improvements, then Tenant shall
insure such leasehold improvements as are currently located in the Premises, as
well as leasehold improvements in the Premises made by Tenant. Tenant shall
furnish to Landlord certificates or evidence of insurance (as applicable) of
insurance required hereunder prior to Tenant taking possession of the Premises.
Landlord and Tenant each agree to include in any of their "special form" (or
other property and casualty) insurance policies the agreement of the issuer
thereof that such policy shall not be invalidated by a waiver of claims by the
insured against the Landlord or Tenant, as the case may be, and each will
furnish evidence thereof to the other. Landlord and Tenant each hereby waive any
claim against the other for any loss resulting from any cause, including the
negligence of the other, to the extent of the insurance proceeds available
therefore or required to be available by the terms of this Sublease.
12. ASSIGNMENT OR SUBLETTING.
A. To the extent provided under the Prime Lease, Tenant shall not (i) assign,
convey, mortgage or hypothecate this Sublease or any interest under it, (ii)
allow any transfer thereof or any lien upon Tenant's interest by operation of
law, (iii) further sublet the Premises or any part thereof or (iv) permit the
occupancy of the Premises or any part thereof by anyone other than Tenant.
Landlord's consent to an assignment of this Sublease or a further sublease of
the Premises shall not be unreasonably withheld, conditioned or delayed, and if
Landlord consents thereto, Landlord shall use reasonable efforts to obtain the
consent of Prime Landlord if such consent is required to be obtained under the
Prime Lease. Any cost of obtaining Prime Landlord's consent shall be borne by
Tenant.
B. Notwithstanding the provisions of subsection (A) of this Section 12, and only
to the extent permitted under Section 13 of the Prime Lease, Tenant may assign
its interests herein or further sublet the Premises or any portion thereof,
without Landlord's consent and without providing any additional rent to
Landlord, to any entity which, at the time of the initial assignment or
sublease, controls, is controlled by or is under common control with Tenant, or
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any entity resulting from the merger or consolidation with Tenant, or to any
person or entity which acquires all or substantially all the assets or capital
stock of Tenant, in any such case as a going concern of the business that is
being conducted on the Premises, provided that said assignee assumes, in full,
the obligations of Tenant under this Sublease in an agreement delivered to
Landlord.
C. No permitted assignment shall be effective and no permitted sublease shall
commence unless and until any default by Tenant hereunder shall have been cured.
No permitted assignment or subletting shall relieve Tenant from Tenant's
obligations and agreements hereunder and Tenant shall continue to be liable as a
principal and not as a guarantor or surety to the same extent as though no
assignment or subletting had been made.
13. MAINTENANCE AND REPAIRS. During the Term hereof, all obligations of Landlord
under the Prime Lease for the maintenance, repair and/or replacement of any
portion of the Premises shall be the responsibility of the Tenant.
14. FIRE OR CASUALTY OR EMINENT DOMAIN. In the event of a fire or other casualty
affecting the Premises, or of a taking of all or a part of the Building or
Premises under the power of eminent domain, Landlord shall not exercise any
right which may have the effect of terminating the Prime Lease without first
obtaining the prior written consent of Tenant. In the event Landlord is
entitled, under the Prime Lease, to a rent abatement as a result of a fire or
other casualty or as a result of a taking under the power of eminent domain,
then Tenant shall be entitled to such rent abatement. If the Prime Lease imposes
on Landlord the obligation to repair or restore leasehold improvements or
alterations, Tenant shall be responsible for the repair or restoration of such
leasehold improvements or alterations.
15. ALTERATIONS. Tenant may make any alterations in or additions or improvements
to the Premises ("ALTERATIONS"), but only after obtaining Landlord's and Prime
Landlord's written consent if and to the extent such consent is required to be
obtained by Landlord under the Prime Lease. Tenant shall make Alterations in
compliance with all of the covenants of Landlord contained in the Prime Lease
pertaining to the performance of such Alterations. In addition, Tenant shall
indemnify, defend and hold harmless Landlord against liability, loss, cost,
damage, liens and expense imposed on Landlord arising out of the performance of
Alterations by Tenant.
16. SURRENDER. Upon the expiration of this Sublease, or upon the termination of
the Sublease or of the Tenant's right to possession of the Premises, Tenant will
at once surrender and deliver up the Premises, together with all improvements
thereon, only to the extent required under the Prime Lease, to Landlord in the
condition required under the Prime Lease and pursuant to the requirements of the
Prime Lease, including the removal of any alterations made by Landlord or
Tenant, to the extent Prime Landlord requires their removal.
17. REMOVAL OF TENANT'S PROPERTY. Upon the expiration of this Sublease, Tenant
shall remove Tenant's articles of personal property incident to Tenant's
business ("TRADE FIXTURES"); provided, however, that Tenant shall repair any
injury or damage to the Premises which may result from such removal, and shall
restore the Premises to the same condition as prior to the installation thereof.
If Tenant does not remove Tenant's Trade Fixtures from the Premises prior to the
expiration or earlier termination of the Term, Landlord may, at its option,
remove the same (and repair any damage occasioned thereby and restore the
Premises as aforesaid) and dispose thereof or deliver the same to any other
place of business of Tenant, or warehouse the same, and Tenant shall pay the
cost of such removal, repair, restoration, delivery or warehousing to Landlord
on demand, or Landlord may treat said Trade Fixtures as having been conveyed to
Landlord with this Sublease as a bill of sale, without further payment or credit
by Landlord to Tenant.
18. HOLDING OVER. Tenant shall have no right to occupy the Premises or any
portion thereof after the expiration of this Sublease or after termination of
this Sublease or of Tenant's right to possession in consequence of an Event of
Default hereunder. In the event Tenant or any party claiming by, through or
under Tenant holds over, thereafter the tenancy shall be from month to month in
the absence of a written agreement to the contrary, and Tenant shall pay to
Prime Landlord a daily occupancy charge equal to five percent (5%) of the Basic
Rental (as defined in the Prime Lease) for the last lease year (plus all other
charges payable by Tenant under this Sublease) from each
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day from the expiration or termination of this Sublease until the date the
Premises are delivered in the condition required herein, and Landlord's right to
damages for such illegal occupancy shall survive
19. ENCUMBERING TITLE. Tenant shall not do any act which shall in any way
encumber the title of Prime Landlord in and to the Premises, nor shall the
interest or estate of Prime Landlord or Landlord be in any way subject to any
claim by way of lien or encumbrance, whether by operation of law, by virtue of
any express or implied contract by Tenant or by reason of any other act or
omission of Tenant. Any claim to, or lien upon the Premises arising from any act
or omission of Tenant shall accrue only against the subleasehold estate of
Tenant and shall be subject and subordinate to the paramount title and rights of
Prime Landlord in and to the Premises and the interest of Landlord in the
Premises leased pursuant to the Prime Lease. Without limiting the generality of
the foregoing, Tenant shall not permit the Premises to become subject to any
mechanic's or other lien, charge or order for the payment of money filed against
Landlord or Prime Landlord as a result of any act or omission of Tenant;
provided, however, that if so permitted under the Prime Lease, Tenant shall have
the right to contest in good faith and with reasonable diligence, the validity
of any such lien or claimed lien; provided further, however, that Tenant shall,
at its own cost and expense, cause the same to be discharged of record or bonded
within thirty (30) days after written notice from Landlord or Prime Landlord to
Tenant of the filing thereof; and Tenant shall indemnify and save and hold
harmless Landlord, and if so required by the Prime Lease, Prime Landlord,
against and from all costs, liabilities, suits, penalties, claims and demands,
including reasonable attorneys' fees, resulting therefrom.
20. INDEMNITY.
A. Tenant agrees to indemnify, forever save and hold Landlord and each of
Landlord's agents, contractors, licensees, employees, managers, members,
directors, officers, partners, trustees and invitees (collectively, the
"INDEMNIFIED PARTIES;" each, an "INDEMNIFIED PARTY") harmless from and against
any and all Losses which any Indemnified Party may suffer or incur arising out
of or in connection with this Sublease, including, without limitation, (i)
Tenant's failure to comply with the provisions of this Sublease; (ii) Tenant's
or Tenant's employees' or Tenant's successors or assigns use of the Premises;
(iii) the conduct of Tenant's business, any activity, work or things done,
permitted or suffered by Tenant, its agents, contractors, licensees, employees,
directors, officers, partners, trustees, successors or assigns (other than work
performed by Landlord) in or about the Premises or the Building (as defined in
the Prime Lease); (iv) Tenant's employees nonobservance or nonperformance or any
statute, law, ordinance, rule or regulation; (v) any negligence or other
wrongful act or omission on the part of Tenant or any of its agents,
contractors, licensees, employees, directors, officers, partners, trustees,
successors or assigns or (vii) any accident, injury or damage to any person or
property occurring in, on or about the Premises or any part thereof during the
Term of this Sublease, except to the extent caused by the negligence or willful
misconduct of any Indemnified Party.
B. Landlord agrees to indemnify, forever save and hold Tenant and each of
Tenant's agents, contractors, licensees, employees, managers, members,
directors, officers, partners, trustees and invitees (collectively, the "TENANT
INDEMNIFIED PARTIES;" each, a "TENANT INDEMNIFIED PARTY") harmless from and
against any and all Losses which any Tenant Indemnified Party may suffer or
incur arising out of, (i) Landlord's failure to comply with the provisions of
this Sublease; (ii) Landlord's employees nonobservance or nonperformance of any
statute, law, ordinance, rule or regulation; (iii) any negligence or other
wrongful act or omission on the part of Landlord or any of its agents,
contractors, licensees, employees, directors, officers, partners, trustees,
successors or assigns or (iv) any accident, injury or damage to any person or
property occurring in, on or about the Premises or any part thereof during the
term of this Sublease to the extent caused by the negligence or willful
misconduct of Landlord (with respect to a claim against Tenant).
C. The parties hereto acknowledge and agree that any claim for indemnification
hereunder and the obligations owed to the Indemnified Party or the Tenant
Indemnified Party, as the case may be, shall be subject to the provisions of
Sections 9.2 and 9.3 of the Asset Purchase Agreement.
21. LANDLORD'S RESERVED RIGHTS. Landlord shall have the same access rights as
Prime Landlord under the Prime Lease.
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22. DEFAULTS. Tenant agrees that any one or more of the following events shall
be considered Events of Default as said term is used herein:
A. Tenant shall be adjudged an involuntary bankrupt, or a decree or order
approving, as properly filed, a petition or answer filed against Tenant asking
reorganization of Tenant under the Federal bankruptcy laws as now or hereafter
amended, or under the laws of any State, shall be entered, and any such decree
or judgment or order shall not have been vacated or stayed or set aside within
ninety (90) days from the date of the entry or granting thereof; or
B. Tenant shall file any petition in bankruptcy, or any petition pursuant or
purporting to be pursuant to the Federal bankruptcy laws now or hereafter
amended, or Tenant shall institute any proceedings for relief of Tenant under
any bankruptcy or insolvency laws or any laws relating to the relief of debtors,
readjustment of indebtedness, reorganization, arrangements, composition or
extension; or
C. Tenant shall make any assignment for the benefit of creditors or shall file
an answer admitting or fail timely to contest or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or any material part of its
properties; or
D. Tenant shall admit in writing its inability to pay its debts as they become
due; or
E. A decree or order appointing a receiver of the property of Tenant shall be
made and such decree or order shall not have been vacated, stayed or set aside
within ninety (90) days from the date of entry or granting thereof; or
F. Tenant shall default in any payment of Rent required to be made by Tenant
hereunder when due as herein provided and such default shall continue for more
than ten (10) days after notice thereof in writing to Tenant; or
G. Tenant shall default in securing insurance or in providing evidence of
insurance as set forth in Section 11 of this Sublease or shall default with
respect to lien claims as set forth in Section 19 of this Sublease and either
such default shall continue for fifteen (15) days after notice thereof in
writing to Tenant; or
H. Tenant shall, by its act or omission to act, cause a default under the Prime
Lease and such default shall not be cured within the time, if any, permitted for
such cure under the Prime Lease; or
I. Tenant shall default in any of the other covenants and agreements herein
contained to be kept, observed and performed by Tenant, and such default shall
continue for thirty (30) days after notice thereof in writing to Tenant, and
Tenant shall not within such 30-day period commence with due diligence and
dispatch the curing of such default or having so commenced, shall thereafter
fail or neglect to prosecute or complete with due diligence and dispatch the
curing of such default.
23. REMEDIES. Upon the occurrence of any one or more Events of Default, Landlord
may exercise any remedy against Tenant which Prime Landlord may exercise for
default by Landlord under the Prime Lease.
24. NOTICES AND CONSENTS. All notices, demands, requests, consents or approvals
which may or are required to be given by either party to the other shall be in
writing and shall be deemed given when received or refused if sent by United
States registered or certified mail, postage prepaid, return receipt requested
or if sent by overnight commercial courier service (a) if to Tenant, addressed
to Tenant at the address specified in Section 1(B) or at such other place as
Tenant may from time to time designate by notice in writing to Landlord or (b)
if for Landlord, addressed to Landlord at the address specified in Section 1(C)
or at such other place as Landlord may from time to time designate by notice in
writing to Tenant. Each party agrees to promptly deliver a copy of each notice,
demand, request, consent or approval from such party to Prime Landlord and
promptly to deliver to the other party a copy of any notice, demand, request,
consent or approval received from Prime Landlord. Such copies shall be delivered
by overnight commercial courier.
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25. PROVISIONS REGARDING SUBLEASE. This Sublease and all the rights of parties
hereunder are subject and subordinate to the Prime Lease. Each party agrees that
it will not, by its act or omission to act, cause a default under the Prime
Lease. In furtherance of the foregoing, the parties hereby confirm, each to the
other, that it is not practical in this Sublease agreement to enumerate all of
the rights and obligations of the various parties under the Prime Lease and
specifically to allocate those rights and obligations in this Sublease
agreement. Accordingly, in order to afford to Tenant the benefits of this
Sublease and of those provisions of the Prime Lease which by their nature are
intended to benefit the party in possession of the Premises, and in order to
protect Landlord against a default by Tenant which might cause a default or
event of default by Landlord under the Prime Lease:
A. To the extent Prime Landlord requires payment directly from Landlord and
provided Tenant timely pays all Rent when and as due under this Sublease,
Landlord shall pay, when and as due, any and all base rent, additional rent and
other charges payable by Landlord to Prime Landlord to the extent required under
the Prime Lease.
B. Landlord shall promptly provide Tenant with copies of all notices received by
Landlord under the Prime Lease from Prime Landlord or its mortgagee.
C. Except as otherwise expressly provided for herein, during the Term hereof
Tenant shall perform all affirmative covenants of Landlord under the Prime Lease
and shall refrain from performing any act which is prohibited by the negative
covenants of the Prime Lease.
D. Landlord shall not agree to any amendment to the Prime Lease unless Landlord
shall first obtain Tenant's prior written approval thereof, which approval shall
not be unreasonably withheld, conditioned or delayed.
E. Except as otherwise provided herein, Tenant shall be entitled to the rights
of Landlord, as tenant under the Prime Lease. Without limiting the generality of
the foregoing, Landlord hereby grants to Tenant the right to receive all of the
services and benefits with respect to the Premises which are to be provided by
Prime Landlord under the Prime Lease. Landlord shall have no duty to perform any
obligations of Prime Landlord which are, by their nature, the obligation of an
owner or manager of real property. For example, Landlord shall not be required
to provide the services or repairs, if any, which the Prime Landlord is required
to provide under the Prime Lease. Landlord shall have no responsibility for or
be liable to Tenant for any default, failure or delay on the part of Prime
Landlord in the performance or observance by Prime Landlord of any of its
obligations under the Prime Lease, nor shall such default by Prime Landlord
affect this Sublease or waive or defer the performance of any of Tenant's
obligations hereunder except to the extent that such default by Prime Landlord
excuses performance by Landlord, under the Prime Lease. Notwithstanding the
foregoing, the parties contemplate that Prime Landlord shall, in fact, provide
the services and benefits and perform its obligations under the Prime Lease and
in the event of any default or failure of such provision or performance by Prime
Landlord, Landlord agrees that it will, upon notice from Tenant, make demand
upon, deliver notices to and request consents or approvals from Prime Landlord
to provide such services or benefits and perform its obligations under the Prime
Lease and, provided that Tenant specifically agrees to pay all reasonable costs
and expenses of Landlord and provides Landlord with security reasonably
satisfactory to Landlord to pay such costs and expenses, Landlord will take
appropriate legal action to enforce the Prime Lease.
F. Tenant shall have the right to exercise all renewal rights granted to
Landlord under the Prime Lease.
G. Landlord shall cooperate with Tenant to cause Prime Landlord to provide
services required by Tenant in addition to those otherwise required to be
provided by Prime Landlord under the Prime Lease. Tenant shall pay Prime
Landlord's charge for such services promptly after having been billed therefor
by Prime Landlord or by Landlord.
26. SECURITY DEPOSIT.
A. To secure the faithful performance by Tenant of all the covenants, conditions
and agreements in this Sublease set forth and contained on the part of Tenant to
be fulfilled, kept, observed and performed including, but not by way of
limitation, such covenants and agreements in this Sublease which become
applicable upon the termination of
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the same by re-entry or otherwise, Tenant shall deposit with Landlord the
Security Deposit as specified in Section 1(N) on the understanding that: (a) the
Security Deposit or any portion thereof not previously applied, or from time to
time, such one or more portions thereof, may be applied to the curing of any
default that may then exist, without prejudice to any other remedy or remedies
which Landlord may have on account thereof, and upon such application Tenant
shall pay Landlord on demand the amount so applied which shall be added to the
Security Deposit so the same may be restored to its original amount; (b) should
the Prime Lease be assigned by Landlord, the Security Deposit or any portion
thereof not previously applied may be turned over to Landlord's assignee and if
the same be turned over as aforesaid, Tenant hereby releases Landlord from any
and all liability with respect to the Security Deposit and/or its application or
return; (c) if permitted by law, Landlord or its successor shall not be
obligated to hold the Security Deposit as a separate fund, but on the contrary
may commingle the same with its other funds; (d) if Tenant shall faithfully
fulfill, keep, perform and observe all of the covenants, conditions and
agreements in this Sublease set forth and contained on the part of Tenant to be
fulfilled, kept, performed and observed, the sum deposited or the portion
thereof not previously applied, shall be returned to Tenant without interest no
later than thirty (30) days after the expiration of the Term of this Sublease or
any renewal or extension thereof, provided Tenant has vacated the Premises and
surrendered possession thereof to Landlord at the expiration of the Term or any
extension or renewal thereof as provided herein; (e) in the event that Landlord
terminates this Sublease or Tenant's right to possession by reason of an Event
of Default by Tenant, Landlord may apply the Security Deposit against damages
suffered to the date of such termination and/or may retain the Security Deposit
to apply against such damages as may be suffered or shall accrue thereafter by
reason of Tenant's default; and (f) in the event any bankruptcy, insolvency,
reorganization or other creditor-debtor proceedings shall be instituted by or
against Tenant, or its successors or assigns, the Security Deposit shall be
deemed to be applied first to the payment of any Rent due Landlord for all
periods prior to the institution of such proceedings, and the balance, if any,
of the Security Deposit may be retained or paid to Landlord in partial
liquidation of Landlord's damages.
B. Notwithstanding the above, Tenant shall have the right to post a letter of
credit in place of the cash security deposit required in Section 26(A) of this
Sublease in the same manner as Landlord has the right to post a letter of credit
rather than cash security pursuant to Section 39(c) of the Prime Lease. In
addition, Tenant shall have the obligation to post a letter of credit as
additional security for this Sublease in the same manner as Landlord is
obligated to post additional security for the Prime Lease pursuant to Section
39(b) of the Prime Lease (except that the test shall be the Moody's and/or
Standard & Poors rating of TriMas Company, LLC, the guarantor, rather than
Landlord).
27. PRIME LANDLORD'S CONSENT. The parties acknowledge that, pursuant to Section
13(d) of the Prime Lease, Prime Landlord's consent to this Sublease is not
required.
28. BROKERAGE. Each party warrants to the other that it has had no dealings with
any broker or agent in connection with this Sublease.
29. FORCE MAJEURE. Neither Landlord nor Tenant shall be deemed in default with
respect to any of the terms, covenants and conditions of this Sublease if such
parties failure to timely perform same is due in whole or in part to any strike,
lockout, labor trouble (whether legal or illegal), civil disorder, failure of
power, restrictive governmental laws and regulations, riots, insurrections, war,
shortages, accidents, casualties, acts of God, or any other cause beyond the
reasonable control of such party.
30. TRIMAS GUARANTEE. As a condition to Landlord entering into the Sublease,
Tenant shall obtain the unconditional guarantee of this Sublease by TriMas
Company LLC in the form attached hereto as Annex 2.
31. CERTIFICATES. Each party shall, without charge, at any time and from time to
time hereafter, within ten (10) days after written request of the other party,
certify to the best of its knowledge by written instrument duly executed and
acknowledged to any mortgagee or purchaser, or proposed mortgagee or proposed
purchaser, of any other person, firm or corporation specified in such request:
(a) as to whether this Sublease has been supplemented or amended, and if so, the
substance and manner of such supplement or amendment; (b) as to the validity and
force and effect of this Sublease, in accordance with its tenor as then
continued; (c) as to the existence of any default there-
- 8 -
under; (d) as to the existence of any offsets, counterclaims or defenses hereto
on the part of such other party; (e) as to the commencement and expiration dates
of the Term hereof and (f) as to any other matters as may reasonably be so
requested. Any such certificate may be relied upon by the party requesting it
and any other person, firm or corporation to whom the same may be exhibited or
delivered, and the contents of such certificate shall be binding on the party
executing same.
- 9 -
32. MISCELLANEOUS. The laws of the State of Michigan shall govern the validity,
performance, and enforcement of this Sublease. The invalidity or
unenforceability of any provision of this Sublease shall not affect or impair
any other provision of this Sublease or the Sublease itself. The submission of
this document for examination does not constitute an offer to lease, or a
reservation of or option for the Premises, and becomes effective only upon
execution and delivery thereof by Landlord and Tenant. All negotiations,
considerations, representations, and understandings between the parties are
incorporated herein and may be modified or altered only by agreement in writing
between the parties. This Sublease shall not be recorded. A memorandum of lease
describing the property, giving the commencement date and term of this Sublease
and renewal rights, and referring to this Sublease, may be executed and may be
recorded by either party. The agreements, terms, covenants, and conditions
herein shall bind and inure to the benefit of Landlord and Tenant and their
respective successors and, except as otherwise provided herein, their assigns.
The parties have executed this Sublease the day and year first above written.
LANDLORD:
METALDYNE COMPANY LLC
By: /s/ Karen A. Radtke
-------------------------------------
Printed Name: Karen A. Radtke
Its: Vice President and Treasurer
TENANT:
FITTINGS PRODUCTS CO., LLC
By: /s/ Todd R. Peters
-------------------------------------
Printed Name: Todd R. Peters
Its: Executive Vice President & CFO
- 10 -
STATE OF MICHIGAN )
) ss.
COUNTY OF WAYNE )
The foregoing instrument was acknowledged before me this 9th
day of May, 2003 by Karen Radtke, the Vice President and Treasurer of METALDYNE
COMPANY LLC, a Delaware limited liability company, on behalf of said limited
liability company.
/s/ Annette Nealy
-----------------------------
Notary Public, State of
Printed Name: Annette Nealy
Commission Expires:
Feb. 16, 2006
--------------------------
STATE OF MICHIGAN )
) ss.
COUNTY OF OAKLAND )
The foregoing instrument was acknowledged before me this 9th
day of May, 2003 by Todd R. Peters, the Executive Vice President of FITTINGS
PRODUCTS CO., LLC, a Delaware limited liability company, on behalf of said
company.
/s/ Tamera L. Pope
-----------------------------
Notary Public, State of Michigan
Printed Name: Tamera L. Pope
--------------
Commission Expires:
Oct. 16, 2005
-----------------------
ANNEX 1
Property situated in City of Livonia, County of Wayne, State
of Michigan described as:
That part of the Northeast 1/4 of Section 25, Town 1 South,
Range 9 East, city of Livonia, Wayne County, Michigan, described as
beginning at a point on the East line of said Section distant South 0
degrees 26 minutes 50 seconds East 820.0 feet from the Northeast corner
of Section 25 and proceeding thence South 0 degrees 26 minutes 50
seconds East along said East line, 500.0 feet; thence North 89 degrees
52 minutes 20 seconds West 494.56 feet; thence North 0 degrees 20
minutes 47 seconds West 499.99 feet calculated and measured (North 0
degrees 20 minutes 49 seconds West 500.0 feet recorded;) thence South
89 degrees 52 minutes 20 seconds East 493.68 feet to the point of
beginning. EXCEPT the East 60 feet thereof, which was deeded to the
Wayne County Board of Road Commissioners.
Commonly known as 12955 Inkster
Tax Item No. 097-99-0006-000
ANNEX 2
GUARANTY
The undersigned, TRIMAS COMPANY LLC, a Delaware limited
liability company ("GUARANTOR"), whose address is 39400 Woodward Avenue, Suite
130, Bloomfield Hills, Michigan 48304, in consideration of the leasing of the
leased Premises described in that certain sublease (the "SUBLEASE") of even date
herewith between METALDYNE COMPANY LLC ("LANDLORD") and FITTINGS PRODUCTS CO.,
LLC ("TENANT"), does hereby covenant and agree as follows:
A. The undersigned does hereby guarantee the full, faithful and timely
payment and performance by Tenant of all of the payments, covenants and
other obligations of Tenant under or pursuant to the Sublease. If
Tenant shall default at any time in the payment of any rent or any
other sums, costs or charges whatsoever, or in the performance of any
of the other covenants and obligations of Tenant, under or pursuant to
the Sublease, then the undersigned, at its expense, shall on demand of
Landlord fully and promptly pay all rent, sums, costs and charges to be
paid by Tenant, and perform all of the other covenants and obligations
to be performed by Tenant, under or pursuant to the Sublease and, in
addition, shall, on Landlord's demand, pay to Landlord any and all sums
due to Landlord, including all interest on past due obligations of
Tenant and costs advanced by Landlord, that may arise in consequence of
Tenant's default.
B. A separate action or actions may, at Landlord's option, be brought and
prosecuted against the undersigned, whether or not any action is first
or subsequently brought against Tenant, or whether or not Tenant is
joined in any such action, and the undersigned may be joined in any
action or proceeding commenced by Landlord against Tenant arising out
of, in connection with or based upon the Sublease.
C. Subject to the provisions of the immediately following paragraph, this
Guaranty shall remain and continue in full force and effect and shall
not be discharged in whole or in part notwithstanding (whether prior or
subsequent to the execution hereof) any alteration, renewal, extension,
modification, amendment or assignment of, or subletting, concession,
franchising, licensing or permitting under, the Sublease. The
undersigned agrees that the liability of the undersigned hereunder
shall be based upon the obligations of Tenant set forth in the Sublease
as the same may be altered, renewed, extended, modified, amended or
assigned.
D. This Guaranty shall remain in full force and effect notwithstanding the
institution by or against Tenant, of bankruptcy, reorganization,
readjustment, receivership or insolvency proceedings of any nature, or
the disaffirmance of the Sublease in any such proceedings or otherwise.
E. Neuter terms should also refer, where applicable, to the feminine
gender and the masculine gender; the singular reference shall also
include the plural of any word if the context so requires.
F. This Guaranty shall be applicable to and binding upon the heirs,
executors, administrators, representatives, successors and assigns of
Landlord, Tenant and the undersigned.
G. The execution of this Guaranty prior to execution of the Sublease
shall not invalidate this Guaranty or lessen the obligations of
Guarantor hereunder.
H. This Guaranty is made pursuant to, and shall be interpreted and applied
in accordance with, the laws of the State of Michigan. Any legal action
or proceeding with respect to this Guaranty may be brought in the
Courts of the State of Michigan, or the District Court of the United
States of America for the Eastern District of Michigan, and, by
execution and delivery of this Guaranty, the Guarantor hereby
irrevocably accepts for itself the jurisdiction of the aforesaid
courts. The Guarantor hereby irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered mail, return
receipt requested, to the Guarantor at the addresses provided herein,
such service to become effective 30 days after such mailing, or such
earlier time as may be provided by applicable law. The Guarantor hereby
irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty brought in the
courts referred to above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
I. Landlord's address is 47603 Halyard Drive, Plymouth, Michigan 48170 and
Tenant's address is 39400 Woodward Avenue, Suite 130, Bloomfield Hills,
Michigan 48170.
J. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has executed this Guaranty
as of the 8th day of May, 2003.
TRIMAS COMPANY LLC
a Delaware limited liability company
By: /s/ Todd R. Peters
-----------------------------------
Name: Todd R. Peters
Title: Executive Vice President and
CFO
Agreed and Accepted by:
METALDYNE COMPANY LLC, a DELAWARE limited liability
company
By: /s/ Karen A. Radtke
----------------------------------
Name: Karen A. Radtke
Title: Vice President and Treasurer
ACKNOWLEDGMENT
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On this 8th day of May, 2003, before me personally appeared
Todd R. Peters, to me personally known, who, being duly sworn, did say that he
is the Executive Vice President and CFO of Trimas Company LLC, a Delaware
limited liability company, the limited liability company named in and which
executed the within instrument, and that said instrument was signed and sealed
in behalf of said limited liability company.
/s/ Tamera L. Pope
------------------
Notary Public
Oakland County, MICHIGAN
My Commission expires: Oct. 16, 2005
-------------
STATE OF MICHIGAN )
) ss.:
COUNTY OF WAYNE )
On this 8th day of May, 2003, before me personally appeared
Karen A. Radtke, to me personally known, who, being duly sworn, did say that she
is the Vice President and Treasurer of Metaldyne Company LLC, a Delaware limited
liability company, the limited liability company named in and which executed the
within instrument, and that said instrument was signed and sealed in behalf of
said limited liability company.
/s/ Annette Nealy
-----------------
Notary Public
County, Wayne
My Commission expires: Feb. 16, 2006
-------------