EXHIBIT (10)(14) Lease Agreement and Amendment to Lease Agreement with JCMD
Properties, LLC
LEASE AGREEMENT
This lease agreement was entered into on March 5th 2004, between JCMD
PROPERTIES LLC, a Michigan Limited Liability Company having its principal place
of business at 0000 Xxxxxxx Xx., Xxxxxxxx, XX, referred to as "lessor," and
MARKETING WORLDWIDE LLC, a Limited Liability Corporation, and MARKETING
WORLDWIDE CORP. a Delaware Corporation, both organized under the laws of the
State of Michigan and Delaware respectively, having its principal place of
business at 11224 Xxxxx Road, XXXXXXXX LAKE, Xxxxxxxxxx County, Michigan,
referred to as "lessee."
SECTION ONE
DESCRIPTION OF PREMISES
Lessor leases to lessee the premises modified to the specifications of the
Lessee, located at _SITE 11 &12 OF 2212 GRAND COMMERCE_, HOWELL, _LIVINGSTON
COUNTY, MICHIGAN, and described more particularly as follows: Units 11 and 12 of
Xxxxxxxxxx Commerce Center according to Master Deed Liber 3691 Pages 18 - 72.
Tax ID number: 00-00-000-000 and 00-00-000-000.
The properties include a designed in expansion option of an additional
11,500 square feet, sealed and painted shop floors, power shop floor scrubber,
carpet runners, air compressor and snow removal if required in the event of
excessive show fall.
SECTION TWO
TERM
The term of this lease agreement is FIVE years, beginning on JANUARY 1,
2005, and terminating on DECEMBER 31, 2009.
SECTION THREE
RENT
The properties are being leased as a Triple Net lease.
A. The total rent under this lease agreement is $777,483.60 NNN.
B. Lessee shall pay lessor the above-specified amount in installments of
(see Schedule A) each month, beginning on January 1st 2005, with succeeding
payments due on the 1ST DAY of each subsequent month during the term of the
lease agreement.
SECTION FOUR
USE OF PREMISES
The demised premises are to be used for the purposes of Warehouse and
General Office. Lessee shall restrict its use to such purposes, and shall not
use or permit the use of the demised premises for any other purpose without the
prior, express, and written consent of lessor, or lessor's authorized agent.
SECTION FIVE
RESTRICTIONS ON USE
A. Lessee shall not use the demised premises in any manner that will
increase risks covered by insurance on the demised premises and result in an
increase in the rate of insurance or a cancellation of any insurance policy,
even if such use may be in furtherance of lessee's business purposes.
B. Lessee shall not keep, use, or sell anything prohibited by any policy of
fire insurance covering the demised premises, and shall comply with all
requirements of the insurers applicable to the demised premises necessary to
keep in force the fire and liability insurance.
SECTION SIX
WASTE, NUISANCE, OR UNLAWFUL ACTIVITY
Lessee shall not allow any waste or nuisance on the demised premises, or
use or allow the demised premises to be used for any unlawful purpose.
SECTION SEVEN
DELAY IN DELIVERING POSSESSION
This lease agreement shall not be rendered void or voidable by the
inability of lessor to deliver possession to lessee on the date set forth in
Section Two. Lessor shall not be liable to lessee for any loss or damage
suffered by reason of such a delay.
SECTION EIGHT
UTILITIES and TAXES
Lessee shall arrange and pay for all utilities furnished to the demised
premises for the term of this lease agreement, including, but not limited to,
electricity, gas, water, sewer, and telephone service.
Lessee shall pay the property taxes, special assessments and other taxes
assessed by the Township, County and State at the time they are due for the
leased property. Copies of the proof of payment are to be supplied to the Lessor
on or before the tax due date.
SECTION NINE
REPAIRS AND MAINTENANCE
Lessee shall maintain the demised premises and keep them in good repair at
its expense, except that exterior walls and the roof will be maintained in good
condition by lessor. Lessee shall maintain and repair windows, doors, skylights,
adjacent sidewalks, and interior walls. Lessee is responsible for lawn, parking,
driveway, snow plowing, winter salting, and walkway maintenance. Lessee will
operate and abide by the rules and regulations set forth by the Xxxxxxxxxx
Commerce Center Association, the requirements of Xxxxxx Township, those of
Xxxxxxxxxx County and the State of Michigan.
SECTION TEN
DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
A. Lessor represents that the demised premises are in fit condition for use
by lessee. Acceptance of the demised premises by lessee shall be construed as
recognition that the demised premises are in a good state of repair and in
sanitary condition.
B. Lessee shall surrender the demised premises at the end of the lease
term, or any renewal of such term, in the same condition as when lessee took
possession, allowing for reasonable use and wear, and damage by acts of God,
including fires and storms. Before delivery, lessee shall remove all business
signs placed on the demised premises by lessee and restore the portion of the
demised premises on which they were placed in the same condition as when
received.
SECTION ELEVEN
PARTIAL DESTRUCTION OF PREMISES
A. Partial destruction of the demised premises shall not render this
lease agreement void or voidable, nor terminate it except as
specifically provided in this lease agreement. If the demised
premises are partially destroyed during the term of this lease
agreement, lessor shall repair them when such repairs can be made
in conformity with governmental laws and regulations
B. Disputes between lessor and lessee relating to provisions of this
section shall be arbitrated. The parties shall each select an arbitrator, and
the two arbitrators selected shall together select a third arbitrator. The three
arbitrators shall determine the dispute, and their decisions shall be binding on
the parties. The parties shall divide the costs of arbitration equally between
them.
SECTION TWELVE
ENTRY ON PREMISES BY LESSOR
A. Lessor reserves the right to enter on the demised premises at reasonable
times to inspect them, perform required maintenance and repairs, or to make
additions, alterations, or modifications to any part of the building in which
the demised premises are located, and lessee shall permit lessor to do so.
X. Xxxxxx may erect scaffolding, fences, and similar structures, post
relevant notices, and place moveable equipment in connection with making
alterations, additions, or repairs, all without incurring liability to lessee
for disturbance of quiet enjoyment of the demised premises, or loss of
occupation of the demised premises.
SECTION THIRTEEN
SIGNS, AWNINGS, AND MARQUEES INSTALLED BY LESSEE
A. Lessee shall not construct or place signs, awnings, marquees, or other
structures projecting from the exterior of the demised premises without the
prior, express, and written consent of lessor and approval of Xxxxxx Township.
B. Lessee shall remove signs, displays, advertisements, or decorations it
has placed on the premises that, in the opinion of lessor, are offensive or
otherwise objectionable. If lessee fails to remove such signs, displays,
advertisements, or decorations within 24 HOURS after receiving written notice
from lessor to remove them, lessor reserves the right to enter the demised
premises and remove them at the expense of lessee.
SECTION FOURTEEN
BUSINESS SALE SIGNS
Lessee shall not conduct "Going out of Business," "Lost Our Lease,"
"Bankruptcy," or other sales of that nature on the demised premises without the
written consent of lessor.
SECTION FIFTEEN
NONLIABILITY OF LESSOR FOR DAMAGES
Lessor shall not be liable for liability or damage claims for injury to
persons or property from any cause relating to the occupancy of the demised
premises by lessee, including those arising out of damages or losses occurring
on sidewalks and other areas adjacent to the demised premises during the term of
this lease agreement or any extension of such term. Lessee shall indemnify
lessor from any and all liability, loss, or other damage claims or obligations
resulting from any injuries or losses of this nature.
SECTION SIXTEEN
LIABILITY INSURANCE
A. Lessee shall procure and maintain in force at its expense during the
term of this lease agreement and any extension of such term, public liability
insurance with insurers and through brokers approved by lessor. Such coverage
shall be adequate to protect against liability for damage claims through public
use of or arising out of accidents occurring in or around the demised premises,
in a minimum amount of $1,000,000 for each person injured, $3,000,000 for any
one accident, and $1,500,000 for property damage. The insurance policies shall
provide coverage for contingent liability of lessor on any claims or losses. The
insurance policies shall be delivered to lessor for safekeeping. Lessee shall
obtain a written obligation from the insurers to notify lessor in writing at
least 30 days prior to cancellation or refusal to renew any policy.
B. If the insurance policies required by this section are not kept in force
during the entire term of this lease agreement or any extension of such term,
lessor may procure the necessary insurance and pay the premium for it, and the
premium shall be repaid to lessor as an additional rent installment for the
month following the date on which the premiums were paid by lessor.
SECTION SEVENTEEN
ASSIGNMENT, SUBLEASE, OR LICENSE
A. Lessee shall not assign or sublease the demised premises, or any right
or privilege connected with the demised premises, or allow any other person
except agents and employees of lessee to occupy the demised premises or any part
of the demised premises without first obtaining the written consent of lessor. A
consent by lessor shall not be a consent to a subsequent assignment, sublease,
or occupation by other persons.
B. An unauthorized assignment, sublease, or license to occupy by lessee
shall be void and shall terminate this lease agreement at the option of lessor.
C. The interest of lessee in this lease agreement is not assignable by
operation of law without the written consent of lessor.
SECTION EIGHTEEN
BREACH
The appointment of a receiver to take possession of the assets of lessee, a
general assignment for the benefit of the creditors of lessee, any action taken
or allowed to be taken by lessee under any bankruptcy act, or the failure of
lessee to comply with each term and condition of this lease agreement shall
constitute a breach of this lease agreement. Lessee shall have 10 days after
receipt of written notice from lessor of any breach to correct the conditions
specified in the notice. If the corrections cannot be made within the 10 DAY
period, lessee shall have a reasonable time to correct the default if action is
commenced by lessee within 10 days after receipt of the notice.
SECTION NINETEEN
REMEDIES OF LESSOR FOR BREACH BY LESSEE
Lessor shall have the following remedies in addition to its other rights
and remedies in the event lessee breaches this lease agreement and fails to make
corrections as set forth in Section Eighteen:
A. Lessor may reenter the demised premises immediately and remove the
property and personnel of lessee, store the property in a public warehouse or at
a place selected by lessor, at the expense of lessee.
B. After reentry, lessor may terminate this lease agreement on giving
30 days' written notice of termination to lessee. Without such notice,
reentry will not terminate this lease agreement. On termination, lessor may
recover from lessee all damages proximately resulting from the breach,
including, but not limited to, the cost of recovering the demised premises and
the balance of the rent payments remaining due and unpaid under this lease
agreement.
C. After reentering, lessor may relet the demised premises or any part of
the demised premises for any term without terminating this lease agreement, at
such rent and on such terms as it may choose. Lessor may make alterations and
repairs to the demised premises. The duties and liabilities of the parties if
the demised premises are relet shall be as follows:
(1). In addition to lessee's liability to lessor for breach of this lease
agreement, lessee shall be liable for all expenses of the reletting, for the
alterations and repairs made, and for the difference between the rent received
by lessor under the new lease agreement and the rent installments that were due
for the same period under this lease agreement.
(2). Lessor, at its option, shall have the right to apply the rent received from
reletting the premises (a) to reduce lessee's indebtedness to lessor under this
lease agreement, not including indebtedness for rent, (b) to expenses of the
reletting and alterations and repairs made, (c) to rent due under this lease
agreement, or (d) to payment of future rent under this lease agreement as it
becomes due.
If the new lessee does not pay a rent installment promptly to lessor, and
the rent installment has been credited in advance of payment to the indebtedness
of lessee other than rent, or if rentals from the new lessee have been otherwise
applied by lessor as provided for in this section, and during any rent
installment period, are less than the rent payable for the corresponding
installment period under this lease agreement, lessee shall pay lessor the
deficiency, separately for each rent installment deficiency period, and before
the end of that period. Lessor may, at any time after such reletting, terminate
this lease agreement for the breach on which lessor based the reentry and relet
the demised premises.
After reentry, lessor may procure the appointment of a receiver to take
possession and collect rents and profits of the business of lessee. If necessary
to collect the rents and profits, the receiver may carry on the business of
lessee and take possession of the personal property used in the business of
lessee, including inventory, trade fixtures, and furnishings and use them in the
business without compensating lessee. Proceedings for appointment of a receiver
by lessor, or the appointment of a receiver and the conduct of the business of
lessee by the receiver, shall not terminate this lease agreement unless lessor
has given written notice of termination to lessee as provided in this lease
agreement.
SECTION TWENTY
ATTORNEY FEES
If lessor files an action to enforce any agreement contained in this lease
agreement, or for breach of any covenant or condition, lessee shall pay lessor
reasonable attorney fees for the services of lessor's attorney in the action,
all fees to be fixed by the court.
SECTION TWENTY-ONE
CONDEMNATION
Eminent domain proceedings resulting in the condemnation of a part of the
demised premises, but leaving the remaining premises usable by lessee for the
purposes of its business, will not terminate this lease agreement unless lessor,
at its option, terminates this lease agreement by giving written notice of
termination to lessee. The effect of any condemnation, where the option to
terminate is not exercised, will be to terminate this lease agreement as to the
portion of the demised premises condemned, and the lease of the remainder of the
demised premises shall remain intact. The rental for the remainder of the lease
term shall be reduced by the amount that the usefulness of the demised premises
has been reduced for the business purposes of lessee. Lessee assigns and
transfers to lessor any claim it may have to compensation for damages as a
result of any condemnation.
SECTION TWENTY-TWO
OPTION TO RENEW
Lessor grants to lessee an option to renew this lease agreement for 5
years AFTER EXPIRATION OF THE TERM OF THIS LEASE AGREEMENT OR ANOTHER TERM
EQUAL TO THE TERM OF THIS LEASE AGREEMENT], with all other terms and
conditions of the renewal lease to be the same as those in this lease
agreement. To exercise this option to renew, lessee must give lessor written
notice of intention to do so at least 180 days before this lease
agreement expires.
SECTION TWENTY-THREE
WAIVERS
Waiver by lessor of any breach of any covenant or duty of lessee under this
lease is not a waiver of a breach of any other covenant or duty of lessee, or of
any subsequent breach of the same covenant or duty.
SECTION TWENTY-FOUR
GOVERNING LAW
It is agreed that this lease agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Michigan.
SECTION TWENTY-FIVE
ENTIRE AGREEMENT
This lease agreement shall constitute the entire agreement between the
parties. Any prior understanding or representation of any kind preceding the
date of this lease agreement shall not be binding upon either party except to
the extent incorporated in this lease agreement.
SECTION TWENTY-SIX
MODIFICATION OF AGREEMENT
Any modification of this lease agreement or additional obligation assumed
by either party in connection with this agreement shall be binding only if
evidenced in a writing signed by each party or an authorized representative of
each party.
SECTION TWENTY-SEVEN
NOTICES
A. All notices, demands, or other writings that this lease agreement
requires to be given, or which may be given, by either party to the other, shall
be deemed to have been fully given when made in writing and deposited in the
United States mail, registered and postage prepaid, and addressed as follows:
To lessor: 0000 X. Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000
To lessee: 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000
B. The address to which any notice, demand, or other writing may be given
or made or sent to any party as above provided may be changed by written notice
given by such party as above provided.
SECTION TWENTY-EIGHT
BINDING EFFECT
This lease agreement shall bind and inure to the benefit of the respective
heirs, personal representatives, successors, and assigns of the parties.
SECTION TWENTY-NINE
TIME OF THE ESSENCE
It is specifically declared and agreed that time is of the essence of this
lease agreement.
SECTION THIRTY
PARAGRAPH HEADINGS
The titles to the paragraphs of this lease agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this lease agreement.
In witness, each party to this lease agreement has caused it to be executed
at XXXXXXXX LAKE, MICHIGAN on the date indicated below.
DATE: 3/5/04 LESSEE: /s/ Xxxxxxx Winzkowski
--------------- -----------------------------
XXXXXXX WINZKOWSKI
MARKETING WORLDWIDE LLC
DATE: 3/5/04 LESSEE: /s/ Xxxxxxx Winzkowski
--------------- -----------------------------
XXXXXXX WINZKOWSKI
PRESIDENT AND CEO
MARKETING WORLDWIDE CORP.
DATE: 3/5/04 LESSEE: /s/ Xxxxx Xxxxxx
--------------- -----------------------------
XXXXX XXXXXX
MANAGING MEMBER
JCMD PROPERTIES LLC
SCHEDULE A
Marketing Worldwide
Building lease payment schedule
YEAR Annual Monthly
1 $ 149,400.00 $ 12,450.00
2 $ 152,388.00 $ 12,699.00
3 $ 155,435.76 $ 12,952.98
4 $ 158,544.48 $ 13,212.04
5 $ 161,715.36 $ 13,476.28
$ 777,483.60 NNN
FIRST AMENDMENT TO LEASE
The LEASE BY AND BETWEEN JCMD Properties LLC and Marketing Worldwide
LLC and Marketing Worldwide Corporation dated March 5, 2004, for the real
property located at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx, XX 00000, Units
11 & 12, is hereby amended as follows:
TERM: Change the term to read, "the lease term will begin on January 1, 2005 and
will terminate on December 31, 2027..."
LEASE PAYMENTS: Add the following: "Notwithstanding any stated sum for the rent,
so long as the SBA 504 Loan 631,000 is outstanding, the rent at no time shall
exceed the amount necessary to amortize debt plus pay expenses related to
holding of the Building and/or Premises.
LESSOR ASSIGNMENT: Lessor hereby assigns to Lessee, Xxxxxx'x interest as Lessor
in any lease by a third party of a lease or leases of any portion of the
Premises.
Except as modified by the First Amendment, the Lease is ratified, affirmed,
remains in full force and effect, and is incorporated herein by this reference.
Dated: August 29, 2005
JCMD Properties LLC
-------------------
(Lessor)
By: /s/ Xxxxxxx Winzkowski
--------------------------
Xxxxxxx Winzkowski, Manager
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Xxxxx X. Xxxxxx, Manager
Marketing Worldwide LLC
-----------------------
(Lessee)
By: /s/ Xxxxxxx Winzkowski
--------------------------
Xxxxxxx Winzkowski, Member
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Xxxxx X. Xxxxxx, Member
Marketing Worldwide Corporation
-------------------------------
By: /s/ Xxxxxxx Winzkowski
--------------------------
Xxxxxxx Winzkowski, President
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Xxxxx X. Xxxxxx, Secretary
