THIS LEASE made
this 1 st
day of February, 2008, by and
between DJR Ventures, LLC, an Indiana Limited Liability Company,
Bremen, Indiana, hereinafter called “Lessor”, and
Copperfield, LLC, a Minnesota Limited Liability Company,
hereinafter called “Lessee”.
W I T N E S
S E T H :
RECITALS
A. Lessor is
the sole owner of the premises described below, and desires to
lease the premises to a suitable lessee for business
purposes.
B. Lessee
desires to lease the premises for the purpose of warehousing and
wire manufacturing.
C. The
parties desire to enter a lease agreement defining their rights,
duties, and liabilities relating to the premises.
In consideration
of the mutual covenants contained herein, the parties agree as
follows:
Lessor leases the
buildings and land located at 1115 West North Street, 1115 West
Plymouth Street, and 515 Copperfield Way in the Town of Bremen,
Marshall County, Indiana, hereinafter, the “Premises”,
and more particularly described as follows, to-wit:
See EXHIBIT “A”
attached.
SECTION TWO
TERM
Lessor demises the
above premises for a term commencing on the 1
st day of February, 2008, and terminating on the
31 st
day of December, 2017, or sooner, as
provided herein.
This Lease
supersedes and terminates Leases relating to the Premises dated
January 1, 2006, April 1, 2004 and June 1,
2002.
The rent for the
term of this lease shall be Eighty One Thousand Three Hundred
Twenty Dollars ($81,320.00) per month, payable in equal monthly
installments beginning on the 1 st day of February, 2008, and the 1
st day of each month thereafter until the 31
st day of December, 2017.
Subject to the
terms and provisions of this Section Three, it is the intent
of the parties that the Lessee shall be fully responsible for all
costs and expenses related to the
occupancy of
the premises including, but not limited to, taxes, insurance,
assessments, utilities, repairs and maintenance. All taxes,
charges, costs, and expenses that Lessee assumes or agrees to pay
hereunder, together with all interest and penalties that may accrue
thereon in the event of the failure of Lessee to pay those items,
and all other damages, costs, expenses, and sums that Lessor may
suffer or incur, or that may become due, by reason of any default
of Lessee or failure by Lessee to comply with the terms and
conditions of this lease shall be deemed to be additional rent,
and, in the event of nonpayment, Lessor shall have all the rights
and remedies as herein provided for failure to pay rent.
Notwithstanding anything to the contrary contained herein, the
parties acknowledge and agree that Lessor shall be liable, at its
sole cost and expense, for any costs and expenses related to the
premises arising from any act, omission, negligence or willful
misconduct of Lessor, and that Lessee shall have no liability
therefor.
Lessee shall be
solely responsible for all real estate taxes and assessments, and
pay all personal property taxes assessed against the premises in a
timely fashion. In no event shall taxes payable by Lessee hereunder
include any federal, state and local income, franchise, capital
stock, gift, estate succession, inheritance, sales, use, revenue or
transfer tax (or any substitution therefor) that Lessor must pay in
connection with the Premises, nor shall such taxes include any
interest or penalties (or costs directly associated therewith) due
for late payment of taxes by Lessor, nor any other tax, assessment,
charge or levy (or any substitution therefor) against Lessor with
respect to or because of the rent and other income derived by
Lessor under this Lease, nor shall Lessee be deemed obligated to
pay any personal property, corporation, payroll, excise, privilege
or any other tax of similar nature (or any substitution therefor)
which may be levied or assessed against Lessor.
Lessee, at its
expense, shall have the right, but not the obligation, to contest
or review by legal, administrative or other proceedings the amount
or validity of any such tax or assessment imposed against the
Premises. If Lessee does not pay real estate taxes when due and
contests such taxes, Lessee shall not be in default under this
Lease for nonpayment of such taxes if Lessee posts bond from an
admitted surety in the amount necessary to protect the Premises
from the lien of the unpaid taxes. The amount of such bond shall be
sufficient to pay the real estate taxes plus a reasonable estimate
of the interest, costs, charges and penalties which may accrue if
Lessee’s action is unsuccessful. The bond made shall be
applied to the real estate taxes due, as determined at such
proceedings (or upon Tenant’s earlier payment of taxes under
protest or otherwise), with any excess being disbursed to Lessee.
Lessor, at Lessee’s request, shall join in any such
proceedings, but Lessor shall not be liable for any expenses in
connection therewith. The proceedings referred to herein shall
include, but shall not be limited to, appropriate appeal from any
judgments, decrees or orders made in any such proceedings. In the
event of any reduction, cancellation or discharge of such taxes or
assessments as a result of such proceedings, and if Lessee had not
already paid same, then Lessee will do so forthwith as they are
finally levied, assessed or imposed. If there shall be any refund
payable by the governmental authority with respect thereto, the
party paying such amount shall be entitled to receive and retain
same.
SECTION FOUR
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
A. Subject to
the limitation that no substantial portion of the building on the
demised premises shall be demolished or removed by Lessee without
the prior written consent of Lessor. Lessee may at any time during
the lease term, subject to the conditions set forth below and at
his own expense, make any alterations, additions, or improvements
in and to the demised premises and the building. Alterations shall
be performed in a workmanlike manner and shall not weaken or impair
the structural strength, or lessen the value, of the building on
the premises, or change the purposes for which the building, or any
part thereof, may be used.
B. Conditions
with respect to alterations, additions, or improvements are as
follows:
1.
Before commencement of any work all plans and specifications shall
be filed with and approved by all governmental departments or
authorities having jurisdiction and any public utility company
having an interest therein, and all work shall be done in
accordance with requirements of local regulations. The plans and
specifications for any alterations estimated to cost Twenty
Thousand Dollars ($20,000.00) or more, shall be submitted to Lessor
for written approval prior to commencing work, which approval shall
not be unreasonably withheld, delayed or conditioned.
2.
Prior to commencement of any work Lessee shall pay the amount of
any increase in premiums on insurance policies provided for herein
because of endorsements to be made covering the risk during the
course of work.
C. All
alterations, additions, improvements on or in the demised premises
at the commencement of the term, and that may be erected or
installed during the term, shall become part of the demised
premises and the sole property of Lessor, except that all moveable
trade fixtures installed by Lessee shall be and remain the property
of Lessee.
Lessee shall, at
all times during the lease and at its own cost and expense, repair,
replace, and maintain in a good, safe, and substantial condition,
the demised premises, and shall use all reasonable precaution to
prevent waste, damage, or injury to the demised premises. Lessee
will be fully responsible for maintaining the common area including
sweeping, snow removal, the signs outside the building, and the
lighting outside the building including the cost of electricity
therefor.
Lessee shall also
maintain the structural, electrical and mechanical elements of the
building as well as the exterior including roof, walls and grounds
in at least as good a condition as they are now in, except for
normal wear and tear; provided, however, that if any repairs to
such structural, electrical, mechanical or exterior elements of the
building are necessitated by the act, omission, negligence or
intentional misconduct of Lessor, or its agents, employees or
contractors, Lessor shall be obligated to reimburse Lessee for any
such required repairs, and further provided that in the event
Lessor receives the proceeds of any insurance policy for damage to
any of the foregoing or is otherwise required to perform any
repairs under this Lease, then Lessor shall have the obligation to
repair such portion of the Premises at Lessor’s sole cost and
expense. The Lessee will seal and stripe
the parking lot
as needed and will be responsible for patching and repaving the
same as needed.
Notwithstanding
anything to the contrary contained herein, in the event that Lessee
makes or causes to be made any repairs under this section which
constitute a capital improvement to the Premises with a useful life
extending beyond the term of the Lease, then Lessor shall reimburse
Lessee for a portion of the total cost of such improvement, such
portion being equal to a ratio, the numerator of which is equal to
the difference between the useful life of the improvement and the
then remaining lease term at the time the improvement or
expenditure is completed, and the denominator of which is equal to
the useful life of the improvement or expenditure. Lessor shall
deliver such payment to Lessee within thirty (30) days after
Lessee completes such improvement and provides documentation of its
expenditure. In the event the Lessee extends the lease under
Section Twenty-five, the Lessor shall be reimbursed for the period
of time the lease is extended as per above; also, if the Lessee
exercises the purchase option, Lessor shall be reimbursed for the
balance of what was paid.
All applications
and connections for necessary utility services on the demised
premises shall be made in the name of Lessee only, and Lessee shall
be solely liable for utility changes as they become due, including
those for sewer, heat, water, gas, electricity, and telephone
services.
A. During the
term of the lease and for any further time that Lessee shall hold
the demised premises, Lessee shall obtain and maintain at his
expense the following types and amounts of insurance:
1.
Fire Insurance. Lessee shall keep all buildings and improvements,
insured against loss or damage by fire and shall maintain his own
insurance on stock, property, fixtures, equipment, and improvements
owned by the Lessee. Further, the Lessee shall be responsible for
any increases in the fire insurance premium occasioned by
Lessee’s activities or use of the building.
2.
Personal injury and property damage insurance. Insurance against
liability for bodily injury and property damage and machinery
insurance, all to be in amounts and in forms of insurance policies
as may from time to time be required by Lessor, shall be provided
by Lessee. This requirement shall specifically include plate glass
insurance, covering the glass in the demised premises.
3.
Other Insurance. Lessee shall provide and keep in force other
insurance in amounts that may from time to time be required by
Lessor against other insurable hazards as are commonly insured
against for the type of business activity that Lessee will
conduct.
4.
Each party agrees to have all insurance coverage which may be
carried by
it endorsed
with a clause providing that the insurer waives all rights of
subrogation which such insurer might have against the other party.
Each party hereby releases the other from any claim for recovery
for any loss or damage to any of its property which is insured
under valid and collectable insurance policies to the extent of any
recovery collectable under such insurance.
B. All
insurance provided by Lessee as required by this section shall be
carried in favor of Lessor and Lessee as their respective interest
may appear. All insurance shall be written with responsible
companies that Lessor shall approve, and copies of the policies
shall be held by Lessor or certificates of insurance shall be
delivered by Lessee to Lessor. All policies shall require ten
(10) days notice by registered mail to Lessor of any
cancellation or change affecting any interest of Lessor.
SECTION EIGHT
UNLAWFUL OR DANGEROUS ACTIVITY
Lessee shall
neither use nor occupy the demised premises or any part thereof for
any unlawful, disreputable, or ultrahazardous business purpose nor
operate or conduct his business in a manner constituting an
unreasonable nuisance. Lessee shall immediately, on discovery of
any unlawful, disreputable, or ultrahazardous use, take action to
halt such activity.
Except and to the
extent arising from Lessor’s negligence or willful
misconduct, Lessee shall indemnify Lessor against all expenses,
liabilities, and claims of every kind, including reasonable counsel
fees, by or on behalf of any person or entity arising out of either
(1) a failure by Lessee to perform any of the terms or
conditions of this lease, (2) any injury or damage happening
on or about the demised premises, (3) failure to comply with
any law of any governmental authority, or (4) any
mechanic’s lien or security interest filed against the
demised premises or equipment, materials, or alterations of
buildings or improvements thereon. Lessor shall indemnify and hold
Lessee harmless from and against all claims, damages, expenses and
penalties arising out of (i) Lessor’s ownership or operation
of the Premises; (ii) Lessor’s negligence or willful
misconduct; (iii) any occurrence not caused by Lessee; or
(iv) the presence of hazardous materials on or under the
Premises prior to the commencement date, including, without
limitation, any matters described in the Phase I Environmental
Assessment relating to 515 Enterprise Drive (Copperfield Way)
prepared by Liesch Companies and dated April 2002, the Phase I
Environmental Assessment relating to 1115 West Plymouth Street
prepared by Liesch Companies and dated January 1998, the Phase
I Environmental Assessment relating to 1115 West Plymouth Street
prepared by Atec Environmental Consultants and dated May 10,
1991.
SECTION TEN
DEFAULT OR BREACH
Each of the
following events shall constitute a default or breach of this lease
by Lessee:
1.
If Lessee, or any successor or assignee of Lessee while in
possession, shall file a petition in bankruptcy or insolvency or
for reorganization under any bankruptcy act, or shall voluntarily
take advantage of any such act by answer or otherwise, or shall
make an assignment for the benefit of creditors.
2.
If involuntary proceedings under any bankruptcy law or insolvency
act shall be instituted against Lessee, or if a receiver or trustee
shall be appointed of all or substantially all of the property of
Lessee, and such proceedings shall not be dismissed or the
receivership or trusteeship vacated within thirty (30) days
after the institution or appointment.
3.
If Lessee shall fail to pay Lessor any rent or additional rent when
the rent shall become due and shall not make the payment within
thirty (30) days after written notice thereof by Lessor to
Lessee.
4.
If Lessee shall fail to perform or comply with any of the
conditions of this lease and if the nonperformance shall continue
for a period of thirty (30) days after written notice thereof
by Lessor to Lessee, or, if the performance cannot be reasonably
had within the thirty (30) day period, Lessee shall not in
good faith have commenced performance within the thirty
(30) day period and shall not diligently proceed to completion
of performance.
5.
If Lessee shall abandon the demised premises and not pay rental or
maintain the same.
6.
If this lease or the estate of Lessee hereunder shall be
transferred to or shall pass to or devolve on any other person or
party, except in the manner herein permitted.
SECTION ELEVEN
EFFECT OF DEFAULT
In the event of
any default hereunder, as set forth in Section Eleven, the
rights of Lessor shall be as follows:
1.
Lessor shall have the right to cancel and terminate this lease, as
well as all of the right, title, and interest of Lessee hereunder,
by giving to Lessee not less than ten (10) days’ notice
of the cancellation and termination. On expiration of the time
fixed in the notice, this lease and the right, tit
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