Exhibit 10.4
LEASE
This Lease made as of the _____ day of ______________, 2000, by and
between Xxxx Xxxx & Sons Trucking, Inc. ("Lessor") and Grow Biz International,
Inc. ("Tenant").
WITNESSETH THAT:
1. LEASE GRANT: Lessor leases the Leased Premises to Tenant and Tenant
leases the Leased Premises from Lessor, together with the right with others to
use any portions of the Building and related real property that are designated
as common areas on Exhibit A attached hereto and incorporated herein and all
parking lots, sidewalks and driveways.
2. VARIABLE TERMS:
(a) Leased Premise: 26,069 usable square feet located in the
building at 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000 as set
forth on the Exhibit A, attached hereto and incorporated herein by
reference (the "Building"). The Building shall include the office
building, appurtenances, parking lot and land. Tenant and its invitees
shall be entitled to but not use more than 75 parking spaces.
(b) Lease Term: July 10, 2000, to and including July 10, 2004,
unless earlier terminated as hereinafter provided.
(c) Annual Base Rent: For the Lease Term until the annual base
rent of $218,979.60 per annum (or $8.40 per square foot), payable in
equal monthly installments of $18,248.30 on the first day of each month
during the Lease Term provided, however, that if the term of this Lease
shall commence on a day other than the first day of the month, or shall
be terminated on a day other than the last day of the month, or both,
the rent payable during such first or last month, or both, shall be
adjusted on a pro rata basis.
(d) Security Deposit: Tenant shall pay to Lessor a security
deposit in an amount equal to one month's base rent.
3. ADDITIONAL RENT: The Additional Rent as outlined in this Clause 3 is
predicated in part upon estimated Additional Rent on a square foot basis
(hereinafter "Additional Rent" as defined in this Clause 3(b). For the remainder
of calendar year 2000, Tenant shall pay to Lessor monthly, estimated Additional
Rent based on current Real Estate Tax and Operating Cost amounts. Prior to the
first day of January each calendar year thereafter, Lessor shall furnish Lessee
with an estimate of the Additional Rent for the ensuing calendar year. The
monthly installments of the Additional Rent shall be increased or decreased by
one-twelfth of the ratio of the number of square feet of net usable area in the
Leased Premises to total useable square feet in the Building multiplied by such
estimate.
For the purpose of this Lease:
(a) Additional Rent shall be deemed to mean the Tenant's pro
rata share of all "Real Estate Taxes" (as defined in Clause 3(d) due
and payable during the Lease Term for the Building and of all
"Operating Costs" (as defined in Clause 3(e)) relating to the Building
incurred by Lessor in connection with the ownership, operation, and
maintenance of the Building during the Lease Term. The Lessor shall
have the right to equitably adjust the amount included in Operating
Costs for the costs of those services (if any) which are provided to
less than all of the tenants of the Building, so that Lessor is
reimbursed for all (but not more than all) of such costs; provided,
however, that nothing in this sentence
contained shall permit Lessor to adjust Operating Costs so as to
recover the costs of providing services to vacant space (excluding
vacant space in the Leased Premises) in the Building.
(b) It is agreed by Lessor and Tenant, for purposes of
calculating Tenant's pro rata share, that the usable area in the
Building is 47,328 square feet and that the usable area of the Leased
Premises is 26,069 square feet, and is subject to adjustment if the
usable square footage in the building should change during the lease
term.
(c) Determination of Additional Rent: Within one hundred
twenty (120) days after the end of each calendar year contained (in
whole or in part) within the Lease Term, Lessor shall deliver to Tenant
a written statement of the actual total amount of Real Estate Taxes and
Operating Costs paid by Lessor in such calendar year, and the amount of
Additional Rent which would have been payable by Tenant in such
calendar year based upon such actual amount. If such statement
indicates that the actual amount of Additional Rent paid by Tenant was
less than the amount shown as payable on such statement, the
differences shall be paid by Tenant to Lessor within ten (10) days
after Tenant's receipt of such statement. If such statement indicates
that Tenant has paid more Additional Rent than the amount shown as
payable on such statement, then that difference shall be paid to Tenant
by Lessor with the delivery of such statement.
(d) Real Estate Taxes shall mean all real estate taxes and
installments of special assessments (including interest payable
therewith) assessed against the Building, all personal property taxes
assessed in respect to personal property owned by Lessor and used or
useful in the operation or maintenance of the Building, and all other
governmental charges, general or special, ordinary or extraordinary,
foreseen as well as unforeseen, of every type and nature whatsoever,
however described, which is levied or assessed by the United States of
America or the State of Minnesota as a result of Lessor's ownership of
the Building; provided, however, that there shall not be included in
Real Estate Taxes amounts which are not due and payable in such
calendar year. Furthermore, the amount of any special assessments
included in such calculation shall not be greater than the amount which
would be due and payable in such calendar year if each such special
assessment had been spread over the longest period of time permitted by
the municipality which has levied such special assessment; and no
special assessments shall be included in Real Estate Taxes which were
assessed in connection with the initial development of the Building.
(e) Operating Costs shall mean all expenses incurred by Lessor
with respect to the operation and maintenance of the Building, as
determined by Lessor's accountant in accordance with generally accepted
accounting principles consistently followed, including (without
limiting the generality of the foregoing) (i) insurance premiums, (ii)
utility charges, (iii) costs incurred in providing the janitorial, lawn
and shrubbery maintenance, snow and ice removal, and other services
required by this Lease Agreement, (iv) maintenance and repair costs
(including costs of capital improvements incurred for the purpose of
reducing the total amount of all Operating Expenses, amortized over the
useful life of such improvements, including interest costs and
depreciation, provided that the annual amount so included shall not
exceed the amount of such annual reduction),[ and (v) reasonable fees
incurred by Lessor directly related to the management of the Leased
Premises.]
The term "Operating Costs" shall not include (i) any capital
improvements except those specifically permitted by the foregoing
sentence, (ii) costs reimbursed by insurance proceeds, (iii) expenses
for preparing space for tenants, (iv) legal expenses incident to
enforcement by Lessor of the terms of any lease, (v) interest,
principal payments or penalties on any mortgage of other indebtedness
of Lessor, (vi) any depreciation expenses or
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allowance, (vii) costs (except those specifically permitted by the
forgoing sentence) associated with (a) structural repairs and
replacements to the Building such as foundation, load bearing walls,
exterior walls, and (b) repairs and replacements of floor, roof, HVAC,
unexposed electrical, plumbing, and sewage components, sidewalk and
parking lot, (viii) costs of repairing or replacing any portion of the
Building which is necessary due to defects in the initial construction
(including defects in the design thereof), (ix) costs of any removal or
abatement of Hazardous Materials (hereinafter defined) from the
Building, other than those placed on or released from the Building by
the Tenant, (x) costs of travel, entertainment and promotion, (xi)
costs arising solely out of the specific needs or character of a
particular tenant including disproportionate services, and (xii) costs
incurred as a result of Lessor's negligence.
Tenant shall have the right, at its expense, to examine the
books and records of Lessor relating to Real Estate Taxes and Operating
Costs, and Lessor shall make the same available to Tenant or its
accountant for such examination at a mutually acceptable time within
twenty (20) days after Tenant's written request for such examination.
4. RENT PAYMENT: The monthly base rent with any Additional Rent payable
hereunder shall be paid in advance on the first day of each month during the
Lease Term in lawful money of the United States to the Lessor, c/o _____________
or at such other place or places and to such other party or parties as Lessor
may hereafter designate. There will be an additional charge of 3% of the base
rent for any rent not received by the 10th of the month after notice from
Lessor. Tenant agrees to pay to Lessor reasonable attorneys' fees incurred in
connection with any legal action by Lessor to collect rent if Lessor is
successful in such action.
5. USE:
(a) Tenant shall use the Leased Premises for a commercial
office and warehouse and for no other purpose whatever.
(b) Tenant will not conduct or permit to be conducted any
activity or place any equipment in or about the Leased Premises which
will in any way increase the rate of fire insurance or other insurance
on the Building; and, if any increase in the rate of fire insurance or
other insurance results from the activity or equipment of Tenant in or
about the Leased Premises, Tenant shall be liable for such increase and
shall reimburse Lessor therefor.
(c) Tenant and its employees and invitees shall use the Leased
Premises and public areas in the Building in accordance with such
reasonable rules and regulations as may, from time to time, be made by
the Lessor for the general safety, comfort, and convenience of the
owners, occupants and tenants of the Building.
(d) No sign, advertisement or notice shall be inscribed,
painted, affixed or displayed by Tenant except to the extent that such
signage currently exists, including modifications of existing signage
as approved by Lessor, which approval shall not be unreasonably
withheld.
6. ACCEPTANCE: Subject to Lessor's obligations hereunder, possession of
the Leased Premises by Tenant shall be conclusive evidence that the Leased
Premises were, on that date, in good, clean and tenantable condition, as
represented by Lessor, and Tenant shall accept the same "as is."
7. LEASEHOLD IMPROVEMENTS: Leasehold improvements and alterations,
including window coverings, shall be maintained by Tenant in safe condition in
harmony with the exterior and interior
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appearance of the Building and shall create no safety or fire hazard. Lessor
shall pay to Tenant on the date hereof $60,000 to be used by the Tenant for
improvements to the Leased Premises.
8. SUBLETTING: Tenant shall not have the right to assign this Lease or
sublet all or any part of the Leased Premises without the prior written consent
of the Lessor, which consent shall not be unreasonably withheld.
Notwithstanding any provision in the Lease to the contrary, Tenant
shall have the right to assign, without Lessor's consent, its interest in this
Lease to any parent, subsidiary, or affiliate corporation or entity, or to any
corporation resulting from the consolidation or merger of Tenant into or with
any other entity, or to any person, firm, entity or corporation acquiring a
majority of Tenant's issued and outstanding stock or substantially all of
Tenant's physical assets. Notwithstanding any provision in this Lease to the
contrary, any changes in the ownership interest of Tenant shall not constitute a
transfer.
9. RIGHT OF RE-ENTRY: Lessor may, at any reasonable time and with
reasonable prior notice, enter the Leased Premises to inspect, make repairs and
improvements and/or changes in the Lessor Premises or other Premises in the
Building as Lessor may deem proper and for purposes of exhibiting the same for
sale or lease.
10. LESSOR SERVICES: Lessor agrees to furnish Tenant with the services
described below. Interruption of service by reasons beyond control of Lessor
shall not be deemed an eviction or disturbance of Tenant's use and possession of
the Leased Premises or any part thereof, or render Lessor or Lessor's agents or
employees liable to Tenant for damages, or relieve Tenant from performance of
Tenant's obligations under this Lease. Lessor will use due diligence to restore
the interrupted service as soon as possible and to the extent that the
interruption is under the control of Lessor, such interruption will be during
non-business hours to the extent practicable.
(a) keep the structural components of the Leased Premises,
roof, heating, air conditioning, electrical, plumbing, water and sewer
systems of the Building, all common areas, and the sidewalk and parking
area located on the real estate described in the Lease in good order
and repair;
(b) furnish heat, air conditioning and ventilation as is
reasonably required for Tenant's comfortable occupancy of the Leased
Premises during Tenant's normal business hours, holidays excepted;
(c) furnish water for kitchen, drinking, lavatory and toilet
purposes drawn through and to existing facilities;
(d) furnish electricity for normal lighting and office use;
(e) provide daily janitorial and other services to the Leased
Premises, including, without limitation, lawn mowing and snow and ice
removal from sidewalks and parking areas as needed; daily vacuuming of
carpets, dusting, trash removal and cleaning of restrooms and kitchen,
as needed to keep the Premises in a clean and orderly condition,
Saturdays, Sundays and holidays excepted; and
(f) pay all real estate taxes and installments of special
assessments payable therewith on or before the date the same become
delinquent.
11. SURRENDER OF PREMISES: Upon the expiration or termination of the
Lease Terms, Tenant shall at its expense:
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(a) remove Tenant's goods and effects and those of all persons
claiming under Tenant; and
(b) quit and deliver up the Leased Premises to Lessor
peaceably and quietly in as good order and condition as the same were
on the date the Lease Term commenced or were thereafter placed in by
Lessor, reasonable wear and tear and damages from fire and other
casualties and improvements made in connection with dividing the Leased
Premises and the remainder of the Building excepted. Any property left
in the Leased Premises after the expiration or termination of the Lease
Term shall be deemed to have been abandoned and the property of Lessor
to dispose of as Lessor deems expedient.
12. LESSOR LIABILITY: Unless caused by Lessor's negligent or
intentional acts or omissions, Lessor shall not be liable to Tenant, its
employees, agents, business invitees, licensees, customers, clients, family
members, guests or trespassers for any leakage or bursting of pipes or water
vessels or any roof or wall leakage, in any part or portion of the Leased
Premises or the Building from water, rain, snow or underground water that may
leak into, flow on or flow from any part of the Leased Premises or the Building.
Until the Maturity Date (as defined in the Development Agreement), Landlord
agrees to comply with all of the terms and obligations of that certain
Development Agreement dated July 14, 1992 (the "Development Agreement").
Landlord agrees to indemnify, defend, and hold Tenant harmless from any breach
of the foregoing obligation.
13. TENANT INSURANCE: Tenant agrees to purchase, in advance, and to
carry in full force and effect, adequate insurance including at a minimum the
following insurance:
(a) "All Risk" fire and casualty insurance, including
endorsements for extended coverage, vandalism and malicious mischief,
and water damage covering the full replacement value of all of Tenant's
leasehold improvements in excess of building standard improvements;
(b) liability insurance covering all acts of Tenant, its
employees, agents, representatives and guests within the Leased
Premises and the Building in a single limit amount of not less than
$1,000,000;
(c) property damage liability insurance in an amount of not
less than $100,000.
All such insurance shall name Lessor as an additional insured and shall not be
cancelable with less than thirty days written notice to Lessor by the insurer.
Certificates of all such insurance shall not be cancelable with less than thirty
days written notice to Lessor by the insurer. Certificates of all such insurance
shall be delivered to the Lessor prior to occupancy of the Leased Premises by
Tenant and at least thirty days prior to termination date of any existing
policy.
14. LESSOR'S INSURANCE: Lessor will at its sole expense and at all
times keep the Building insured against loss due to fire and other causes as are
covered by "extended coverage" insurance in an amount of at least the full
replacement value of the Building and all improvements located therein. Lessor
shall deliver to Tenant promptly after execution and delivery of this Lease a
certificate from the insurer, satisfactory to Tenant, evidencing the insurance
required by Lessor hereunder together with evidence of the payment of the
premium therefor. Lessor, within 30 days prior to the expiration of any such
insurance, shall deliver a certificate on the insurer, satisfactory to Tenant,
evidencing the renewal of such insurance. Throughout the term of this Lease,
Lessor agrees to have in effect public liability insurance covering risks in the
Project in an amount not less than One Million Dollars ($1,000,000.00) for death
or injury to one person and no less than One Million Dollars ($1,000,000.00) for
death or injury to two or more
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persons growing out of one occurrence and property damage insurance of at least
One Million Dollars ($1,000,000.00) for each occurrence.
15. WAIVER OF SUBROGATION: Each Party hereby waives and releases all
claims, liabilities and causes of action against the other party and its agents,
servants and employees for loss or damage to, or destruction of, the Leased
Premises resulting from fire, explosion or the other perils included in standard
extended coverage insurance, whether or not caused by the negligence of any of
said persons or otherwise.
16. LEASE SUBORDINATE: Lessor may cause this Lease to be made subject
and subordinate to all mortgages and restrictions which may now or thereafter
affect the Building and to all renewals and extensions thereof. For confirmation
of such subordination, Tenant shall execute promptly any reasonable
subordination agreement requested by Lessor.
17. ESTOPPEL CERTIFICATE: Tenant agrees that at any time and, from time
to time upon not less than five days prior written notice by Lessor, to execute,
acknowledge and deliver to Lessor a statement in writing:
(a) certifying that this Lease is unmodified and in full force
and effect or if there have been modifications, that this Lease is in
full force and effect as modified and stating the modifications;
(b) stating the dates to which the rent and other charges
hereunder have been paid by Tenant; and
(c) stating whether or not, to the best knowledge of Tenant,
Lessor is in default in the performance of any covenants, specifying
each such default of which Tenant may have knowledge.
Any such statement delivered pursuant hereto may be relied upon by any
prospective mortgagee of the Building of Lessor's interest therein, or any
prospective assignee of any such mortgages.
18. DEFAULT: If Tenant shall (a) default in the payment of any such
installment of rent and Lessor has given Tenant ten days written notice of such
default, (b) default in the observance or performance of any of Tenant's other
covenants, agreements or obligations hereunder and Lessor has given Tenant 30
days notice of such default (unless the default is the type of default that
reasonably takes more than 30 days to cure, then Tenant shall have such
additional time as is reasonably necessary to cure, provided Tenant is
diligently attempting to cure), (c) if any proceeding is commenced by or against
Tenant for the purpose of subjecting the assets of Tenant to any law relating to
bankruptcy or insolvency or for an appointment of a receiver of Tenant or of any
of Tenant's assets, or (d) if Tenant makes a general assignment of Tenant's
assets for the benefit of creditors, then, in any such event, Lessor may,
without process, re-enter immediately into the Lease Premises and remove all
persons and property therefrom, and at its option, annul and cancel this Lease
as to all future rights of Tenant and have, regain, and repossess and enjoy the
Leased Premises, anything herein to the contrary notwithstanding. The Leased
Premises may be re-let by Lessor for such rent and upon such terms as are not
unreasonable under the circumstances and Tenant shall be liable for all damage
sustained by Lessor including, without limitation, deficiency in rent,
reasonable attorneys' fees and expenses of placing the Leased Premises in
first-class rental condition and expenses of renting same, including, but not
limited to, the payment of brokerage fees, tenant allowances or any other tenant
inducement. Notwithstanding the foregoing, if Lessor occupies all or any portion
of the Leased Premises for its business, or the business of an affiliate or
related entity, Tenant shall be released from any liability under this Lease as
to such portion of the Leased Premises. Lessor shall have the right to commence
one or more actions to enforce the terms of this paragraph and the commencement
and prosecution of one action shall not be deemed a waiver of an estoppel from
commencing one or more actions
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from time to time in the future. All rights and demands of Lessor under this
Lease shall be cumulative and shall not be exclusive of any other rights or
remedies provided to Lessor under applicable law.
19. RIGHT TO CURE DEFAULTS: If Tenant defaults in the observance or
performance of any of Tenant's covenants, agreements or obligations hereunder
after the applicable grace period, wherein the default can be cured by the
expenditure of money, Lessor may, but without obligation, and without limiting
any other remedies which it may have by reason of such default, cure the
default, charge the cost thereof to Tenant and Tenant shall pay the same
forthwith upon demand, together with interest thereon at the rate of 8% per
annum.
20. EMINENT DOMAIN OR CASUALTY: If the entire Building or that portion
which is subject to this Lease is taken by eminent domain, this Lease shall
automatically terminate as of the date of taking. If the Building or the Leased
Premises are substantially damaged or destroyed by fire or other casualty,
Lessor shall have the right to terminate this Lease, provided it gives written
notice thereof to the Tenant within thirty (30) days after such damage or
destruction. If Lessor elects not to terminate, Lessor shall, within a
reasonable time and at its own expense, restore the Leased Premises, exclusive
of any alterations or other changes made to the Leased Premises at any time by
or at the direction or request of Tenant, to as near the condition which existed
immediately prior to such damage or destruction as reasonably possible. In the
event Lessor so elects to restore the Leased Premises, rent shall xxxxx during
such period of time as the Leased Premises are untenantable in proportion that
the untenantable portion of the Leased Premises bears to the entire Leased
Premises. The Lessor shall not be responsible to Tenant for damages to or
destruction of any furniture, equipment, alterations or other changes made or
installed in, on or about the Leased Premises regardless of the cause of the
damage or destruction. If Lessor intends to restore the Leased Premises, Lessor
shall, with reasonable promptness, cause an architect or general contractor
selected by Lessor to provide the Lessor and Tenant with a written estimate of
the amount of time required to substantially complete the repair and restoration
of the Leased Premises and make the Leased Premises tenable again, using
standard working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Leased Premises cannot be made tenable within thirty (30)
days of the date of the damage, then regardless of anything contained herein to
the contrary, either party shall have the right to terminate this Lease by
giving written notice to the other of such election within ten (10) days after
the receipt Completion Estimate.
21. HOLDING OVER: Should Tenant continue to occupy the Leased Premises,
or any part thereof, after the expiration or termination of the Lease Term,
whether with or against the consent of Lessor, such Tenancy shall be from
month-to-month in which event Tenant shall pay to Lessor for each additional
month or partial month an amount equal to one hundred fifty percent (150%) of
the rent in effect for the last period prior to the date of such expiration or
termination.
22. NOTICES: Any notice or demand which, under the terms of this Lease
or under any statute must or may be given or made by the parties hereto, shall
be in writing:
(a) If to Lessor at: Xxxx Xxxx & Sons Trucking, Inc.
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(b) If to Tenant, at the Leased Premises (Attn: CEO) unless
notice of change of address is given pursuant to this paragraph.
23. QUIET ENJOYMENT: Lessor covenants that Tenant, upon payment of all
rent or other sums due Lessor and upon performance by Tenant of the terms,
conditions and covenants of this Lease, Tenant shall peaceably and quietly have,
hold and enjoy the Lease Promises for the entire term of this Lease; Lessor
further covenants that it has good right to make this Lease for the entire term.
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24. MISCELLANEOUS: This Agreement shall be binding upon and inure for
the benefit of the parties hereto and, subject to the restrictions and
limitations herein contained, their respective heirs, successors and assigns.
Tenant shall, upon the written request of Lessor, execute a memorandum or short
form lease, in a form suitable for recording. There are no understandings or
agreements not incorporated in this Lease. This Lease shall be construed
according to the laws of the State of Minnesota. The captions in this Lease are
for convenience only and are not a part of this Lease. The additional
provisions, if any, set forth in the attached riders are included herein and by
reference made a part hereof. If there is any conflict between the terms,
conditions and provisions of this Lease and the terms, conditions and provisions
contained in any of said riders, the terms, conditions and provisions of said
riders shall control and take precedence. Failure of Lessor to insist, in any
one or more instances, upon strict performance of any term, covenant or
condition of this Lease, or to exercise any option herein contained, shall not
be construed as a waiver, or a relinquishment for the future, of such term,
covenant, condition or option, but the same shall continue and remain in full
force and effect. The receipt by Lessor of rents with knowledge of a breach in
any of the terms, covenants and conditions of this Lease to be kept or performed
by Tenant shall not be deemed a waiver of such breach, and Lessor shall not be
deemed to have waived any provision on this Lease unless expressed in writing
and signed by Lessor.
IN WITNESS WHEREOF, Lessor and Tenant have duly signed and sealed these
presents the day and year first above written.
"TENANT" "LESSOR"
GROW BIZ INTERNATIONAL, INC. XXXX XXXX & SONS TRUCKING, INC.
By By
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Its Its
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