EXHIBIT 10.49
Confidential Treatment Request
[*] Indicates information that has been omitted pursuant to a confidential
treatment request and this information has been filed under separate cover with
the Commission
LEASE AGREEMENT
THIS LEASE, made as of the ______________________ day of June 2006, by and
between KD Development, a Michigan co-partnership, as lessor (herein after
called the "Landlord") and Midnight Holdings Group, Inc., as lessee (hereinafter
called "Tenant").
(1) DESCRIPTION Landlord, in consideration of rents to be paid and the covenants
and agreements to be preformed by Tenant, hereby leases to Tenant the premises
situated in the Township of Clinton described as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇.
(2) TERM The term shall begin on July 1, 2006 and will end June 30, 2009.
(3) RENT The Tenant yielding and paying during the continuance of this Lease
unto the Landlord, for rent of said premises for said term in lawful money on
the United States payable in monthly installments of:
Year One: [*]
Year Two: [*]
Year Three: [*]
Due on the first day of every month. All rents shall be paid to the Landlord or
it's authorized agent, at the following address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be designated by the
Landlord from time to time. IF TENANT FAILS TO MAKE A RENT PAYMENT ON OR BEFORE
THE DUE DATE, A LATE CHARGE OF $50.00 SHALL BE ADDED TO THE RENT AND PAID WITH
THE OVERDUE PAYMENT. RENT SHALL BE CONSIDERED LATE IF NOT RECEIVED BY LANDLORD
ON THE 10TH OF THE MONTH.
(4) DEFAULT If tenant shall default in any payment other than rent required to
be paid by Tenant under the terms hereof, Landlord may make such payment, in
which event the amount thereof shall be payable as rental to Landlord by Tenant
on the next rent day together with interest at 7% per annum from the date of
such payment by Landlord and on default in such payment Landlord shall have the
same remedies as on default in payment of rent.
(5) ASSIGNMENT AND SUBLETTING Tenant shall not assign this lease or mortgage or
sublet any portion of the premises without prior written consent of Landlord.
Any such assignment mortgage or subletting without consent shall be void and
shall give Landlord the right to terminate this lease and reenter and repossess
the leased premises. Tenant shall not be released of their obligations under
this lease upon assignment or sublease.
(6) BANKRUPTCY AND INSOLVENCY Tenant agrees that if the estate created hereby
shall be taken in execution, or by other process of law, or if Tenant shall be
declared bankrupt or insolvent or any receiver be appointed for the business and
property of Tenant, or if any assignment shall be made of the Tenant's property
for the benefit of creditors, then this lease may be canceled at the option of
Landlord, unless adequate assurance of performance is provided by tenant to
Landlords satisfaction, and affirmation is in strict conformance with the
Federal Bankruptcy Code.
(7) RIGHT TO MORTGAGE Landlord reserves the right to subordinate this lease to
the lien of any mortgage or mortgages now hereafter placed upon Landlord's
interest in the premises and on the land and buildings of which the premises are
a part or upon any buildings hereafter placed upon the land of which the leased
premises form a put. Tenant covenants and agrees to execute and deliver on
demand an instrument or instruments subordinating this lease to the lien of any
such mortgage or
* Portions of this exhibit have been omitted and filed separately pursuant
to an application for confidential treatment filed with the Securities and
Exchange Commission pursuant to rule 24b-2 under the Securities Exchange
Act of 1934, as amended.
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mortgages and hereby irrevocably appoints Landlord the attorney-in-fact of
Tenant to execute and deliver any such instrument or instruments in the name of
Tenant.
(8) USE AND OCCUPANCY The premises shall be used and occupied for offices and
for no other purpose without the written consent of Landlord and Tenant will not
use the premises for my purpose in violation of any law, municipal ordinance or
which will increase the existing rate of insurance upon the property or cause
cancellation of insurance covering the property. On any breach of this agreement
Landlord shall have the option to terminate this lease forthwith and reenter and
repossess the leased premises.
(9) FIRE It is understood and agreed that if the premises are damaged or
destroyed in whole or in part by fire or other casualty during the term,
Landlord will repair and restore the same to good tenantable condition with
reasonable dispatch, and the rent herein provided for shall ▇▇▇▇▇ entirely in
case the entire premises are restored to a tenantable condition. If the Tenant
shall fail to adjust tenant's own insurance or to remove damaged goods, wares,
equipment or property within a reasonable time, and as a result thereof the
repairing and restoration is delayed, there shall be no abatement of rental
during the period of such delay. There shall be no abatement of rental if such
fire or other cause damaging or destroying the leases premises shall result from
the negligence or willful act of the Tenant, Tenant's agents or employees. If
Tenant shall use any part of the leased premises for storage during the period
of repair a reasonable charge shall be made therefore against Tenant. In case
the leased premises, or the building of which they are a part shall be destroyed
to the extent of more than one-half of the value thereof, Landlord shall have
the option to terminate this lease by a written notice to Tenant.
(10) REPAIRS Landlord after receiving written notice from Tenant and having
reasonable opportunity thereafter to obtain the necessary workmen therefore
agrees to keep in good order and repair the roof and the four outer walls of the
premises but not the doors, door frames, the window glass, window casings,
window frames and windows, or any attachment thereto or attachments to said
building or premises used in connection therewith.
(11) TENANT TO INDEMNIFY The Tenant agrees to indemnify and hold harmless the
Landlord from any liability for damages to any person or property in, on or
about said leased premises from any cause whatsoever and Tenant will procure and
keep in effect during the term hereof public liability and property damage
insurance for the benefit of the Landlord in the sum of THREE HUNDRED THOUSAND
00/100 DOLLARS ($300,000.00) for damages resulting to one person and ONE MILLION
AND 00/100 ($1,000,000.00) for damages resulting from one casualty, and THREE
HUNDRED THOUSAND AND 00/100 DOLLARS ($300,000.00) property damage insurance
resulting from any one occurrence. Tenant shall deliver said policies to the
Landlord and upon Tenant's failure so to do the Landlord may at his option
obtain such insurance and the cost thereof shall be paid as additional rent due
and payable upon the next ensuing rent day.
(12) REPAIRS AND ALTERATIONS CARE OF PREMISES Except as provided in Paragraph 11
hereof, Tenant further covenants and agrees that Tenant will, at Tenant's
expense, during the continuation of this lease, keep the said premises and every
part thereof in as good repair and at the expiration of the term yield and
deliver up the same in like condition as when taken, reasonable use and wear
thereof and damage by the elements, fire, explosion or other casualty excepted.
Tenant shall not make improvements to the premises without Landlords written
consent, and all alterations additions or improvements made by either of the
parties hereto upon the premises, except movable office furniture and trade
fixtures put in at the expense of Tenant, shall be the property of Landlord, and
shall remain upon and be surrendered with the premises at the termination of
this lease. Tenant covenants and agrees that if the demised premises consist of
only a part of a structure owned or
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controlled by Landlord, Landlord may enter the demised premises at reasonable
times and install or repair pipes, wires, and other appliances or make any
repairs deemed by Landlord essential to the use and occupancy of the other parts
of Landlords building. The Tenant shall at Tenant's own expense under penalty of
forfeiture and damages promptly comply with all lawful laws, orders, regulations
or ordinances of all municipal, County and State authorities affecting the
premises hereby leased and the cleanliness, safety, occupation and use of same.
(13) EMINENT DOMAIN If any part of the premises shall be taken or condemned for
public use, and a part thereof remains which is susceptible of occupation, this
lease shall, as to the part taken, terminate as of the date the condemner
acquires possession, and thereafter Tenant shall be required to pay such
proportion of the rent for the remaining terms as the value of the premises
remaining bears to the total value of the premises at the date of condemnation;
provided however, that lanyard may at Landlords option, terminate this lease as
of the date the condemner acquires possession. In the event that the demised
premises are condemned in whole, or that such portions is condemned that the
remainder is not susceptible for use hereunder, this lease shall terminate upon
the date upon which the condemner acquires possession. All sums which may be
payable on account of any condemnation shall belong to Landlord, and Tenant
shall not be entitled to any part thereof except any amount awarded to Tenant
for Tenant's trade fixtures or moving expenses.
(14) CONDITION OF PREMISES Landlord shall not be responsible or liable to the
Tenant for any loss or damage that may be caused by the acts omissions of
persons occupying adjoining premises or any part of the building of which the
lease premises are a part or for any loss or damage resulting to Tenant or
Tenant's property from bursting, stoppage or leaking of water, gas, sewer or
steam pipes.
(15) RE-RENTING Tenant hereby agrees that for a period commencing 90 days prior
to the termination of this lease, Landlord may show the premises to prospective
purchasers or tenants, and 60 days prior to the termination of this lease, may
display in and about said premises and in the windows thereof, the usual "TO
RENT" OR "FOR SALE" signs.
(16) HOLDING OVER If Tenant holds over after the expiration or earlier
termination of this lease with the consent of Landlord, Tenant shall become a
tenant from month to month at the then prevailing market rate as determined by
Landlord in its sole and absolute discretion for the Leased Premises in effect
upon the date of such expiration or earlier termination (prorated on a daily
basis), and otherwise upon the terms, covenants and conditions herein specified,
so far as applicable. Acceptance by Landlord of rent after such expiration or
earlier termination shall not constitute a consent to a holdover thereunder or
result in a renewal. Notwithstanding the foregoing provision, no holding over by
Tenant shall vacate and surrender the Leased Premises to Landlord upon Tenant's
being given thirty (30) days prior written notice from Landlord to vacate. The
foregoing provisions are in addition to and do not affect Landlord's right to
re-entry or any other right of Landlord thereunder or as otherwise provided by
law.
(17) ACCESS TO PREMISES Landlord shall have the right to enter upon the leased
premises at all reasonable hours by appointment for the purpose of inspection
the same. If Landlord deems any repairs necessary Landlord may demand that
Tenant make them and if Tenant refuses or neglects forthwith to commence such
repairs and complete them with reasonable dispatch Landlord may make such
repairs or cause them to be made and shall not be responsible to Tenant for any
loss or damage that may accrue to this stock or business by reason thereof, and
if Landlord makes such repairs or causes them to be made Tenant agrees that
Tenant will forthwith on demand pay to Landlord the cost thereof with interest
at 7% per annum, and if Tenant shall make default in such payment the Landlord
shall have the remedies provided in Paragraph 3 hereof.
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(18) RE-ENTRY In case any rent shall be due and unpaid or if default be made in
any of the covenants herein contained, or if the leased premises shall be
deserted or vacated, then it shall be lawful for the Landlord, his certain
attorney, heirs, representatives and assigns, to reenter into, repossess the
said premises and the tenant and each and every occupant to remove and put out.
(19) QUIET ENJOYMENT Landlord covenants that Tenant, on payment of all rent due
and performing all the covenants herein, shall and may peacefully and quietly
have, hold and enjoy the demised premises for the term.
(20) EXPENSES, DAMAGES, REENTRY If Landlord shall, during the period covered by
this lease, obtain possession of the premises by reentry, summary proceedings,
or otherwise Tenant hereby agrees to pay Landlord the expense incurred in
obtaining possession of the premises, and also all expenses and commissions
which may be paid for the letting of the premises, and all other damages.
(21) REMEDIES NOT EXCLUSIVE It is agreed that each and every of the rights,
remedies and benefits provided by this lease shall be cumulative, and shall not
be exclusive of any other of said rights, remedies and benefits, or of any other
rights, remedies and benefits allowed by law.
(22) WAIVER One or more waivers of any covenant or condition by Landlord shall
not be construed as a waiver of further breach of the same covenant or
condition.
(23) NOTICES Any notice which either party may or is required to give, shall be
given by mailing the same, postage prepaid, to Tenant at the premises, to
Landlord, at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such
other place as may be designated by the parties from time to time.
(24) HAZARDOUS SUBSTANCES Tenant shall not use, store, or dispose of any
hazardous substances upon the premises, except use and storage of such
substances if they are customarily used in Tenant's business, and such use and
storage complies with all environmental laws and regulations. Hazardous
substances means any hazardous waster, substance or toxic materials regulated
under any federal or state environmental laws or local regulations or ordinances
applicable to the property.
(25) SECURITY DEPOSIT Landlord acknowledges the receipt of [*] to secure the
performance of Tenant's obligations hereunder. Landlord shall not be obligated
to apply any portions of said deposit on account of Tenant's obligations
hereunder. Any balance remaining upon termination shall be returned to Tenant.
Tenant shall not have the right to apply the Security Deposit in payment of last
month's rent.
(26) COVENANTS The covenants, conditions and agreements herein are binding on
the heirs, successors, representatives and assign of the parties hereto.
(27) TAXES Included in rent.
(28) COMPLIANCE WITH LAW AND REGULATIONS Tenant shall comply with all laws,
regulations and orders of any governmental authority and with the rules and
regulations attached hereto as Exhibit A, as reasonably adopted and modified
from time to time by Landlord (the Rules and Regulations:). Tenant shall not do
or permit anything to be done in or about the Leased Premises or the Associated
Common Areas which will in any way obstruct or interfere with the rights of
other tenants or Occupants of the Office Building or injure or annoy them, and
shall not do or permit anything to be done which will increase the premiums of
the insurance on the Office Building. At no
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time during the Lease Term shall Tenant store any inventory, equipment or any
other materials outside of the Leased Premises. Landlord shall not be
responsible to Tenant for the nonobservance of the Rules and Regulations by any
other Tenant or occupant of the Office Building.
(29) BUILDOUT Landlord will as his sole expense create an entrance door, carpet
reception area, clean carpet and add wall to separate existing suite. See the
attached sketch marked Exhibit B.
(30) FIRST RIGHT OF REFUSAL Tenant shall have first right of refusal of adjacent
Suite 201 if it becomes available for lease. Tenant shall have fifteen (15)
business days from receipt of written notice from Landlord to execute new lease.
If lease is not executed within fifteen days, First Right of Refusal shall be
null and void.
(31) ADVANCE RENT August 2006 Rent shall be paid on or before June 15, 2006.
July 2006 rent shall be paid at time of lease execution.
IN WITNESS WHEREOF, The parties have hereunto set their hand and seals the day
and year first above written.
WITNESSED: LANDLORD:
KD Development
By: By:
--------------------------------- -------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (Partner)
TENANT:
Midnight Holdings Group, Inc.
By:
---------------------------------
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
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EXHIBIT A
1. The sidewalks, entrances, passages, vestibules, corridors or halls shall
not be obstructed or used for any other purpose other than ingress and
egress.
2. No awnings or other projections shall be attached to the outside walls of
the Building. No curtains, blinds, shades or screens shall be attached to
or hung in, or used in connections with, any window or door of the Leased
Premises other than Landlord standard blinds without Landlord's prior
written approval. All electric ceiling fixtures hung in offices or spaces
along the perimeter of the Building must be of a quality, type, design and
bulb color approved by Landlord. Neither the interior nor the exterior of
any windows shall be coated or otherwise sunscreen without written consent
of Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any Tenant or any person acting with
Tenant's consent on, about or from any part of the Leased Premises or the
Building without the prior written consent of Landlord. In the event of
the violation of the foregoing by any Tenant, Landlord may remove or stop
same without any liability and may charge the expense incurred in such
removal or stopping to Tenant in addition to any remedies available under
the Lease. Standard signs on doors and directory sign shall be inscribed,
painted or affixed for each Tenant by the Landlord, and shall be of a
size, color and style acceptable to Landlord. The directory sign will be
provided exclusively for the display of the name and location of Tenant
only and Landlord reserves the right to exclude any other names there
from.
4. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweeping, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by
Tenant, who or whose subtenants, assignees or any of their servants,
employees, agents, visitors or licensees shall have caused same.
5. No bicycles, vehicles, birds or animals of any kind shall be brought into
or kept in or about the Leased Premises. No Tenant shall cause or permit
any unusual or objectionable orders to be produced in or permeate from
Leased Premises.
6. The Leased Premises shall not be used for manufacturing or for the storage
of merchandise except as such storage and/or manufacturing may be
incidental to the permitted use of the Leased Premises. No Tenant shall
occupy or permit any portion of the Leased Premises to be occupied as an
office for the manufacture or sale of liquor, narcotics or tobacco in any
form, or as a Medical office or as a ▇▇▇▇▇▇, or as an employment bureau
without the express written consent of Landlord. The Leased Premises shall
not be used for lodging or sleeping or for any immoral, illegal or unsafe
purpose.
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7. No Tenant shall make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the
use of any musical instrument, radio, phonograph, unusual notice, or in
any other way.
8. No Tenant, subtenant or assignee nor any of its servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the
Leased Premises any inflammable, combustible or explosive fluid chemical
or substance. Tenant may use chemical developing fluid if Tenant provides
adequate venting for fumes.
9. Landlord shall have the right to prohibit any advertising by a Tenant
which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office location, and upon written
notice from Landlord, any Tenant shall refrain from or discontinue such
advertising.
10. Any persons employed by any Tenant to do maintenance work shall, while in
and outside of the Leased Premises, be subject to and under the control or
direction of the Landlord (but not as an agent or servant of said
superintendent or of the Landlord), and Tenant shall be responsible for
all acts of such persons.
11. Canvassing, soliciting and peddling at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ is prohibited, and each Tenant shall report and otherwise
cooperate to prevent the same.
12. No air conditioning unit or other similar apparatus shall be installed or
used by any Tenant without the written consent of Landlord.
13. No vending machines or machines of any description shall be installed,
maintained or operated upon the Leased Premises without the written
consent of Landlord.
14. Tenant shall deposit mail in receptacle located for such purpose all as
approved and governed by United States Post Office Regulations; in no
event shall mail be placed or deposited in any other place in the Common
Areas.
15. Tenant will not conduct itself in any manner which is inconsistent with
the character of the Building, as a first-quality building, or which will
impair the comfort and convenience of the other tenants of the complex.
16. Landlord may make technical amendments to these Rules and Regulations.
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EXHIBIT B
(GRAPHIC OMITTED)