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Exhibit 10.10 LEASE
THIS LEASE made this 1st 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: SECTION ONE
SUBJECT 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 1st day of February, 2008,
and terminating on the 31st 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.
SECTION THREE
RENT 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 1st day of February, 2008, and the 1st day of each
month thereafter until the 31st 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. SECTION FIVE
REPAIRS 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. SECTION SIX
UTILITIES 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. SECTION SEVEN
INSURANCE 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. SECTION NINE
INDEMNITY 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 ter
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