EXHIBIT 10.3
BUSINESS LEASE
This lease, dated NOVEMBER 15, 2004, is between XXX XXXXXX, as
Landlord, and AEROGROW INTERNATIONAL, as Tenant.
In consideration of the payment of the rent and the performance of the
covenants and agreements by the Tenant set forth herein, the Landlord does
hereby lease to the Tenant the following described premises situate in BOULDER
County, in the State of Colorado; the address of which is 0000 X. XXXXXX XXX
#00, XXXXXXX, XX 00000.
Said premises, with all the appurtenances, are leased to the Tenant
from the date of JANUARY 1, 2005, until the date of DECEMBER 30, 2005 at and for
a rental for the full term of $12,000, payable in monthly installments of
$1,000, in advance, on the 1ST day of each calendar month during the term of
this lease, payable at DMN C/O INVESTORS INDEPENDENT TRUST CO., 507 CANYON,
XXXXXXX, XX 00000 ATTN: XXXX XXXXXXX, without notice.
THE TENANT, IN CONSIDERATION OF THE LEASING OF THE PREMISES AGREES AS FOLLOWS:
1. The Tenant shall pay the rent for the premises above-described.
2. The Tenant shall, at the expiration of this lease, surrender the
premises in as good a condition as when the Tenant entered the premises,
ordinary wear and tear excepted. The Tenant shall keep all sidewalks on and
around the premises free and clear of ice and snow; keep the entire exterior
premises free from all litter, dirt, debris and obstructions; and keep the
premises in a clean and sanitary condition as required by the ordinances of the
city and county in which the property is situate.
3. The Tenant shall not sublet any part of the premises, nor assign the
lease, or any interest therein, without the written consent of the Landlord.
4. The Tenant shall use the premises only as OPERATION OF AEROGROW
INTERNATIONAL WHICH MAY INCLUDE TESTING AND RESEARCH and shall not use the
premises for any purposes prohibited by the laws of the United States or the
State of Colorado, or of the ordinances of the city or town in which said
premises are located, and shall neither permit nor suffer any disorderly
conduct, noise or nuisance, having a tendency to annoy or disturb any persons
occupying adjacent premises.
5. The Tenant shall neither hold, nor attempt to hold, the Landlord,
its agents, contractors and employees, liable for any injury, damage, claims or
loss to person or property occasioned by any accident, condition or casualty to,
upon, or about the premises including, but not limited to, defective wiring, the
breaking or stopping of the plumbing or sewage upon the premises, unless such
accident, condition or casualty is directly caused by intentional or reckless
acts or omission of the Landlord. Notwithstanding any duty the Landlord may have
hereunder to repair or maintain the premises, in the event that the improvements
upon the premises are damaged by the negligent, reckless or intentional act or
omission of the Tenant or any employees, agents, invitees, licensees or
contractors, the Tenant shall bear the full cost of such repair or replacement.
The Tenant shall hold Landlord, Landlord's agents and their respective
successors and assigns, harmless and indemnified from all injury, loss, claims
or damage to any person or property while on the demised premises or any other
part of Landlord's property, or arising in any way out of Tenant's business,
which is occasioned by an act or omission of Tenant, its employees, agents,
invitees, licensees or contractors. The Landlord is not responsible for any
damage or destruction to the Tenant's personal property.
6. The Tenant shall neither permit nor suffer said premises, or the
walls or floors thereof, to be endangered by overloading, nor said premises to
be used for any purpose which would render the insurance thereon void or the
insurance risk more hazardous, nor make any alterations in or changes in, upon,
or about said premises without first obtaining the written consent of the
Landlord.
7. The Tenant shall obtain and keep in full force, at Tenant's expense,
fire and liability insurance as may be reasonably required by the Landlord.
Tenant shall provide copies of such insurance policies upon the Landlord's
request.
8. The Tenant shall permit the Landlord to place a "For Rent" sign upon
the leased premises at any time after sixty (60) days before the end of the
lease.
9. The Tenant shall allow the Landlord to enter upon the premises at
any reasonable hour.
IT IS EXPRESSLEY UNDERSTOOD AND AGREED BETWEEN LANDLORD AND TENANT AS FOLLOWS:
10. The Tenant shall be responsible for paying the following [XX]
Electric [XX] Gas [ ] Water [ ] Sewer [XX] Phone [ ] Refuse Disposal [XX]
Janitorial Services [ ] Other_____________.
The [XX] Landlord [ ] Tenant agrees to keep all the improvements upon the
premises, including but not limited to, structural components, interior and
exterior walls, floors, ceiling, roofs, sewer connections, plumbing, wiring and
glass in good maintenance and repair at their expense. In the event the Landlord
is responsible for repair of the premises, the Tenant shall be obliged to notify
the Landlord of any condition upon the premises requiring repair and the
Landlord shall be provided a reasonable time to accomplish said repair.
11. No assent, express or implied, to any breach or default of any one
or more of the agreements hereof shall be deemed to taken to be a waiver of any
succeeding or other breach or default.
12. If, after the expiration of this lease, the Tenant shall remain in
possession of the premises and continue to pay rent without a written agreement
as to such possession, then such tenancy shall be
regarded as a month-to-month tenancy, at a monthly rental, payable in advance,
equivalent to the last month's rent paid under this lease, and subject to all
the terms and conditions of this lease.
13. If the premises are left vacant and any part of the rent reserved
hereunder is not paid, then the Landlord may, without being obligated to do so,
and without terminating this lease, retake possession of the said premises and
rent the same for such rent, and upon such conditions as the Landlord may think
best, making such changes and repairs as may be required, giving credit for the
amount of rent so received less all expenses of such changes and repairs, and
the Tenant shall be liable for the balance of the rent herein reserved until the
expiration of the term of this lease.
14. The Landlord acknowledges receipt of a deposit in the amount of
$3,500 to be held by the Landlord for the faithful performance of all of the
terms, conditions and covenants of this lease. The Landlord may apply the
deposit to cure any default under the terms of this lease and shall account to
the Tenant for the balance. The Tenant may not apply the deposit hereunder to
the payment of the rent reserved hereunder or the performance of other
obligations.
15. If the Tenant shall be in arrears in payment of any installment of
rent, or any portion thereof, or in default of any other covenants or agreements
set forth in this lease, and the default remains uncorrected for a period of
three (3) days after the Landlord has given written notice thereof pursuant to
applicable law, then the Landlord may, at the Landlord's option, undertake any
of the following remedies without limitation: (a) declare the term of the lease
ended; (b) terminate the Tenant's right to possession of the premises and
reenter and repossess the premises pursuant to applicable provisions of the
Colorado Forcible Entry and Detainer Statute; (c) recover all present and future
damages, costs and other relief to which the Landlord is entitled; (d) pursue
breach of contract remedies; and/or (e) pursue any and all available remedies in
law or equity for the remainder of the term, subject to the Landlord's duty to
mitigate such damages. Pursuant to applicable law [00-00-000 (d.5). (e.5) and
13-40-1075, C.R.S.] which is incorporated by this reference, in the event
repeated or substantial defaults(s) under the lease occur, the Landlord may
terminate the Tenant's possession upon a written Notice to Quit, without a right
to cure. Upon such termination, the Landlord shall have available any and all of
the above-listed remedies.
16. If the property or the premises shall be destroyed in whole or in
part by fire, the elements, or other casualty and if, in the sole opinion of the
Landlord, they cannot be repaired within ninety (90) days from said injury and
the Landlord informs the Tenant of said decision; or if the premises are damaged
in any degree and the Landlord informs the Tenant it does not desire to repair
same and desires to terminate this lease; then this lease shall terminate on the
date of such injury. In the event of such termination, the Tenant shall
immediately surrender the possession of the premises and all rights therein to
the Landlord; shall be granted a license to enter the premises at reasonable
times to remove the Tenant's property; and shall not be liable for rent accruing
subsequent to said event. The Landlord shall have the right to immediately enter
and take possession of the premises and shall not be liable for any loss, damage
or injury to the property or person of the Tenant or occupancy of, in or upon
the premises.
If the Landlord repairs the premises within ninety (90) days, this
lease shall continue in full force and effect and the Tenant shall not be
required to pay rent for any portion of said ninety (90) days during which the
premises are wholly unfit for occupancy.
17. In the event any dispute arises concerning the terms of this lease
or the non-payment of any sums under this lease, and the matter is turned over
to an attorney, the party prevailing in such dispute shall be entitled, in
addition to other damages or costs, to receive reasonable attorneys' fees from
the other party.
18. In the event any payment required hereunder is not made within ten
(10) days after the payment is due, a late charge in the amount of 10% of the
payment will be paid by the Tenant.
19. In the event of a condemnation or other taking by any governmental
agency, all proceeds shall be paid to the Landlord hereunder, the Tenant waiving
all right to any such payments.
20. This lease is made with the express understanding and agreement
that in the event the Tenant becomes insolvent, the Landlord may declare this
lease ended, and all rights of the Tenant hereunder shall terminate and cease.
21. The Tenant and the Landlord further agree:
o Rental starts January 1, 2005
o Landlord to pay taxes and insurance
o DMN reserves the right to show unit with 24 hr. notice
o DMN Can give 60 day notification to vacant in case of sale
o AeroGrow shall have 2 weeks free rent (Dec. 15 - Dec. 31)
o Initial payment is 1st and 2 last months plus $500.00 security fee
Total of $3,500
This lease shall be subordinate to all existing and future security
interests on the premises. All notices shall be in writing and be personally
delivered or sent by first class mail, unless otherwise provided by law, to the
respective parties. In any term or provision of this lease shall be invalid or
unenforceable, the remainder of this lease shall not be affected thereby and
shall be valid and enforceable to the full extent permitted by law. This lease
shall only be modified by amendment signed by both parties. This lease shall be
binding on the parties, their personal representatives, successors and assigns.
When used herein, the singular shall include the plural.
Attest: /S/ XXXXXXXX XXXXXXXXX, VP AEROGROW INTERNATIONAL 11/15/04
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Corporate Date
