Exhibit 10.3
L E A S E
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following subjects shall be construed
to incorporate the data stated for that subject in this Section 1.1.
(a) Date of this Lease: June 18, 1998
(b) Premises: The land with the building thereon commonly
known as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ described on Exhibit
A.
(c) Landlord: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as Trustee of More Bricks Realty
Trust under declaration of trust dated June 11, 1998.
(d) Original Address of Landlord: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(e) Tenant: FurnitureSite, Inc., a Delaware corporation
(f) Original Address of Tenant: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(g) Term: The period commencing on the Commencement Date and
ending at 11:59 p.m. local time June 30, 2003, with options to extend as set
forth in Section 2.3.
(h) Commencement Date: The date hereof
(i) Annual Fixed Rent During the Initial Term: $80,500 per year
until July 1, 2001; $86,250 from July 1, 2001 until July 1,
2002; and $92,000 from July 1, 2002 through June 30, 2003.
Annual Fixed Rent During the First Extension Term: $97,750 per
year from July 1, 2003 until July 1, 2006; $103,500 from July
1, 2006 until July 1, 2007; and $109,250 from July 1, 2007
through June 30, 2008.
Annual Fixed Rent During the Second Extension Term: $115,000
per year.
(j) Permitted Uses: Furniture showroom/salesroom and related
office and storage
(k) Public Liability Insurance Limits:
Bodily Injury: $1,000,000
Property Damage: $1,000,000
1.2 EXHIBITS.
The Exhibit listed below in this section is incorporated in this Lease by
reference and is to be construed as a part of this Lease:
EXHIBIT A. Description of Premises.
1.3 TABLE OF ARTICLES AND SECTIONS.
ARTICLE I
Reference Data ................................................ 1
1.1 Subjects Referred To .................................... 1
1.2 Exhibits ................................................ 2
1.3 Table of Articles and Sections .......................... 2
ARTICLE II
Premises and Term ............................................. 5
2.1 Premises ................................................ 5
2.2 Term .................................................... 5
2.3 Option to Extend ........................................ 5
ARTICLE III
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Condition of Premises ......................................... 5
3.1 As Is ................................................... 5
ARTICLE IV
Rent .......................................................... 5
4.1 The Fixed Rent .......................................... 5
4.2 Additional Rent ......................................... 5
4.2.1 Real Estate Taxes ................................ 5
4.2.2 Insurance ........................................ 6
4.2.3 Utilities ........................................ 7
4.3 Late Payment of Rent .................................... 7
ARTICLE V
Landlord's Covenants .......................................... 8
5.1 Delivery of Possession .................................. 8
5.2 Landlord's Representation ............................... 8
5.3 Roof, Exterior Wall, Floor Slab and Structural
Component Repair ...................................... 8
5.4 Quiet Enjoyment ......................................... 8
5.5 Hazardous Materials ..................................... 8
5.6 Indemnity ............................................... 9
ARTICLE VI
Tenant's Additional Covenants ................................. 9
6.1 Affirmative Covenants ................................... 9
6.1.1 Perform Obligations .............................. 9
6.1.2 Use .............................................. 9
6.1.3 Repair and Maintenance ........................... 9
6.1.4 Compliance with Law .............................. 10
6.1.5 Tenant's Work .................................... 10
6.1.6 Indemnity ........................................ 10
6.1.7 Landlord's Right to Enter ........................ 10
6.1.8 Personal Property at Tenant's Risk ............... 11
6.1.9 Yield Up ......................................... 11
6.2 Negative Covenants ...................................... 11
6.2.1 Assignment and Subletting ........................ 11
6.2.2 Overloading and Nuisance ......................... 12
ARTICLE VII
Casualty or Taking ............................................ 12
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7.1 Termination ............................................. 12
7.2 Restoration ............................................. 12
ARTICLE VIII
Defaults ...................................................... 12
8.1 Events of Default ....................................... 12
8.2 Remedies ................................................ 13
8.3 Remedies Cumulative ..................................... 13
8.4 Landlord's and ▇▇▇▇▇▇'s Right to Cure Defaults .......... 14
8.5 Effect of Waivers of Default ............................ 14
8.6 No Accord and Satisfaction .............................. 14
ARTICLE IX
Mortgages ..................................................... 14
9.1 Rights of Mortgage Holders .............................. 14
9.2 Lease Superior or Subordinate to Mortgages .............. 15
ARTICLE X
Miscellaneous Provisions ...................................... 16
10.1 Notices from One Party to the Other ..................... 16
10.2 Estoppel Certificate .................................... 16
10.3 Lease not to be Recorded ................................ 16
10.4 Bind and Inure .......................................... 16
10.5 Acts of God ............................................. 17
10.6 Landlord's Default ...................................... 17
10.7 Brokerage ............................................... 17
10.8 Approvals and Consent ................................... 17
10.9 Applicable Law and Construction ......................... 17
10.9.1 Applicable Law .................................. 17
10.9.2 No Other Agreement .............................. 17
10.9.3 Titles .......................................... 17
10.9.4 "Landlord" and "Tenant" ......................... 17
10.10 Submission Not an Offer ................................. 18
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ARTICLE II
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases and demises to Tenant and Tenant
hereby leases from Landlord, subject to and with the benefit of the terms,
covenants, conditions and provisions of this Lease, the Premises.
2.2 TERM. TO HAVE AND TO HOLD for a term beginning on the Commencement
Date hereof and continuing for the Term, unless sooner terminated as hereinafter
provided.
2.3 OPTION TO EXTEND. Tenant shall have the right and option to extend
the Term for two (2) periods of five (5) years each (the "Extension Terms") by
giving written notice to Landlord of its exercise of its option to extend the
Term on or before that date which is seven (7) months prior to the expiration of
the Term. If either or both of such options are so exercised, all of the terms,
conditions, covenants and agreements contained herein shall apply during the
Extension Terms, except that the Annual Fixed Rent shall be the amounts set
forth in Section 1.1. In the event Tenant exercises the option set forth herein,
references to the Term shall include the relevant Extension Term.
ARTICLE III
CONDITION OF PREMISES
3.1 AS IS. ▇▇▇▇▇▇ accepts the Premises in their "as is" condition as of
the date of this Lease, subject to the provisions of Article V.
ARTICLE IV
RENT
4.1 THE FIXED RENT. Tenant covenants and agrees to pay rent to Landlord
at the Original Address of Landlord or at such other place or to such other
person or entity as Landlord may by notice to Tenant from time to time direct,
in equal installments of 1/12th of the Annual Fixed Rent in advance on the first
day of each calendar month included in the Term; and for any portion of a
calendar month at the beginning or end of the Term, at that rate payable in
advance for such portion.
4.2 ADDITIONAL RENT. In order that the Fixed Rent shall be net to
Landlord, Tenant covenants and agrees to pay, as Additional Rent, taxes,
betterment assessments, insurance costs, and utility charges with respect to the
Premises as provided in this Section 4.2 as follows:
4.2.1 REAL ESTATE TAXES. Tenant shall pay, directly to the
authority charged with collection thereof: (i) all real property taxes,
assessments, levies, fees, water and sewer rents and charges which are, at any
time prior to or during the Term hereof, imposed or levied upon or assessed
against the Premises and (ii) all charges for utilities furnished to the
Premises which may become a lien on the Premises (collectively "taxes and
assessments" or if singular "tax or assessment"). If any tax or assessment
levied against the Premises may legally be paid in
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installments, Tenant may elect to pay such tax or assessment in installments.
For each tax or assessment period, or installment period thereof, wholly
included in the Term, all such payments shall be made by Tenant no later than
the last date on which the same may be paid without interest or penalty;
provided that for any fraction of a tax or assessment period, or installment
period thereof, included in the Term at the beginning or end thereof, Tenant
shall pay to Landlord, within 20 days after receipt of invoice therefor, the
fraction of taxes and assessments so levied or assessed or becoming payable
which is allocable to such included period.
If Tenant shall deem itself aggrieved by any such tax or assessment, and shall
elect to contest the payment thereof, Tenant may make such payment under protest
or, if postponement of such payment will not jeopardize Landlord's title to the
Premises nor prejudice Landlord's rights with respect to abatement proceedings,
Tenant may postpone the same.
Either party paying any tax or assessment shall be entitled to recover,
receive and retain for its own benefit all abatements and refunds related
thereto, unless it has previously been reimbursed by the other party. Any
abatement or refund related to a tax or assessment the payment of which was
apportioned between the parties shall be first applied to the costs of securing
such abatement or refund, and the balance shall be apportioned in like manner.
Neither party shall discontinue any abatement proceedings begun by it without
first giving the other party notice of its intent so to do and reasonable
opportunity to be substituted in such proceedings. Notwithstanding any other
provision of this Lease to the contrary, neither party paying any tax or
assessment shall make such payment in such an amount, in such a manner, or at
such a time as would prejudice any abatement proceeding.
Nothing contained in this Lease shall, however, require Tenant to pay any
franchise, corporate, estate, inheritance, succession, capital levy or transfer
tax of Landlord, or any income, profits or revenue tax or charge upon the rent
payable by Tenant under this Lease.
4.2.2 INSURANCE. Tenant shall take out and maintain
throughout the Term the following insurance protecting Landlord as a named
insured and with such additional insureds as Landlord from time to time may
designate by notice to Tenant:
4.2.2.1 All-risk insurance covering all buildings and
improvements now existing or hereafter erected upon the Premises, and all
equipment and fixtures installed in or used in connection with the Premises,
with such additional endorsements as may be necessary to include coverage for
vandalism and malicious conduct, floods, water damage and debris removal and
demolition, with a co-insurance provision of 80% or an agreed amount clause, in
an amount equal to the replacement cost of all such buildings, improvements,
equipment and fixtures (but not less than the agreed amount if coverage is
pursuant to an agreed amount clause) as such replacement cost may be determined
from time to time.
4.2.2.2 Commercial general liability insurance
indemnifying Landlord and Tenant against all claims and demands for any
injury to person or property which may be claimed to have occurred on or
about the Premises or on the sidewalk or ways adjoining the Premises, in
amounts which shall, at the beginning of the Term, be at least equal to the
limits set forth in Section 1.1, and, from time to time during the Term,
shall be for such higher limits, if any, as are customarily carried in the
area in which the Premises are located on property similar
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to the Premises and used for similar purposes; and workmen's compensation
insurance with statutory limits covering all of Tenant's employees working on
the Premises.
4.2.2.3 Insurance against loss or damage from
sprinklers and from leakage or explosion or cracking of boilers, pipes
carrying steam or water, or both, pressure vessels or similar apparatus, in
the so-called "broad form" and in such amounts as Landlord may reasonably
require.
4.2.2.4 All policies required under this Section 4.2.2
shall be obtained from responsible companies qualified to do business in the
state in which the Premises are located and in good standing therein, which
companies and the amount of insurance allocated thereto shall be subject to
Landlord's reasonable approval. ▇▇▇▇▇▇ agrees to furnish Landlord with
certificates evidencing all such insurance prior to the beginning of the Term
hereof and evidence of each renewal policy at least 20 days prior to the
expiration of the policy it renews. Each such policy shall be non-cancelable
with respect to the interest of Landlord and the holders of any mortgages on
the Premises without at least 20 days' prior written notice thereto.
4.2.2.5 All insurance which is carried by either party
with respect to the Premises or to furniture, furnishings, fixtures or
equipment therein or alterations or improvements thereto, whether or not
required, shall include provisions which either designate the other party as
one of the insured or deny to the insurer acquisition by subrogation of
rights of recovery against the other party to the extent such rights have
been waived by the insured party prior to occurrence of loss or injury,
insofar as, and to the extent that such provisions may be effective without
making it impossible to obtain insurance coverage from responsible companies
qualified to do business in the state in which the Premises are located (even
though extra premium may result therefrom). In the event that extra premium
is payable by either party as a result of this provision, the other party
shall reimburse the party paying such premium the amount of such extra
premium. If at the request of one party, this non-subrogation provision is
waived as to such party, then the obligation of reimbursement by such party
shall cease for such period of time as such waiver shall be effective, but
nothing contained in this Section 4.2.2.5 shall derogate from or otherwise
affect releases elsewhere herein contained of either party for claims. Each
party shall be entitled to have duplicates or certificates of any policies
containing such provisions. Each party hereby waives all rights of recovery
against the other for loss or injury against which the waiving party is
protected by insurance containing said non-subrogation provisions, reserving,
however, any rights with respect to any excess of loss or injury over the
amount recovered by such insurance.
4.2.3 UTILITIES. Tenant shall pay directly to the proper
authorities charged with the collection thereof all charges for water, sewer,
gas, electricity, telephone and other utilities or services used or consumed
on the Premises, whether called charge, tax, assessment, fee or otherwise,
including, without limitation, water and sewer use charges and taxes, if any,
all such charges to be paid as the same from time to time become due.
4.3 LATE PAYMENT OF RENT. If any installment of Fixed Rent or
payment of Additional Rent is paid more than twenty (20) days after the date
the same was due, it shall bear interest from the due date at the prime rate
published in THE WALL STREET JOURNAL, as it may be adjusted
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from time to time, plus two percent per annum, but in no event more than the
maximum rate of interest allowed by law, the payment of which shall be
Additional Rent.
ARTICLE V
LANDLORD'S COVENANTS
Landlord covenants:
5.1 DELIVERY OF POSSESSION. Landlord covenants and agrees to deliver
possession of the Premises to Tenant on the Commencement Date free and clear
from all tenancies, occupancies, claims or rights to possession of persons other
than the rights of Landlord and Tenant under this Lease.
5.2 LANDLORD'S REPRESENTATION. Landlord represents and warrants that,
both on the date this Lease is executed and on the Commencement Date, the
Premises may be used as of right for a furniture showroom/salesroom facility and
related office and storage uses and are and will be in compliance with all
applicable federal, state and local environmental laws and regulations, the
Americans with Disabilities Act and the applicable state or local building code,
and free and clear from all orders, notices and violations filed or entered by
any public or quasi-public authority, and from complaints or reports of
violations, noted or existing in or filed with any federal, state, county or
local authority and that the sanitary system serving the Premises is in good
working order and in compliance with all laws and regulations.
5.3 ROOF, EXTERIOR WALL, FLOOR SLAB AND STRUCTURAL COMPONENT REPAIR.
To make such repairs to the roof, exterior walls, other structural
components, floor slabs, and parking areas and facilities as may be necessary
to keep them in good order, repair and condition and in compliance with
applicable laws, codes and regulations.
5.4 QUIET ENJOYMENT. That Tenant on paying the Fixed Rent and
additional rent and performing the tenant obligations in this Lease shall
peacefully and quietly have, hold and enjoy the Premises, subject to all of
the terms and provisions hereof.
5.5 HAZARDOUS MATERIALS. Landlord shall defend, indemnify and hold
Tenant harmless from and against all loss, cost, expense or damages Tenant,
its stockholders, officers, directors or employees (herein, "Indemnified
Parties") may suffer or incur as a result of the discharge, release,
generation, storage or disposal of any Hazardous Materials on or about the
Premises or on any property adjacent thereto prior to the commencement of the
Term of this Lease. For purposes of this Lease Hazardous Materials shall mean
all oil and petroleum products and all hazardous or toxic substances, all
substances which, because of their quantitative concentration, or their
chemical, radioactive, flammable, explosive, infectious or other
characteristics, constitute or may reasonably be expected to constitute or
contribute to a danger or hazard to public health, safety or welfare or to
the environment, including, without limitation, any asbestos (whether or not
friable) and any asbestos-containing materials, waste oils, solvents and
chlorinated oils, polychlorinated biphenyls (PCBs) and chemical, biological
and radioactive wastes, and any other substances or any hazardous or toxic
wastes or substances which are included under or regulated by any
Environmental Laws.
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For purposes of this Lease Environmental Laws shall mean all federal, state or
local laws, rules and regulations (whether now existing or hereafter enacted or
promulgated, as they may be amended from time to time), and all judicial or
decisional law, pertaining to Hazardous Materials, environmental regulations
contamination by Hazardous Materials, clean-up of Hazardous Materials or
disclosures relating to Hazardous Materials, and any judicial or administrative
interpretation thereof, including any judicial or administrative orders or
judgments, including, without limitation: the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
("CERCLA"); the Federal Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. ("RCRA"); Superfund Amendments and Reauthorization Act of
1986, Public Law No. 99-499 ("▇▇▇▇"); Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq. ("TSCA"); and all state superlien or environmental clean-up
or disclosure statutes in the state in which the Mortgage Property is located.
5.6 INDEMNITY. Landlord shall defend all actions against all
Indemnified Parties with respect to, and shall pay, protect, indemnify and save
harmless, to the extent permitted by law, all Indemnified Parties from and
against any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature arising from (i) injury to or death or any
person, or damage to or loss of property, on or about the Premises or on
adjoining sidewalks, streets or ways, or connected with the use, condition or
occupancy of any thereof caused by the negligence or willful misconduct of
Landlord or its agents, contractors, licensees or invitees, (ii) violation by
Landlord of this Lease, or (iii) any act, fault, omission, or other misconduct
of Landlord or its agents or contractors.
ARTICLE VI
TENANT'S ADDITIONAL COVENANTS
6.1 AFFIRMATIVE COVENANTS. Tenant covenants at its sole expense at all
times during the Term and for such prior or subsequent time as Tenant occupies
the Premises or any part thereof:
6.1.1 PERFORM OBLIGATIONS. To perform promptly all of the
obligations of Tenant set forth in this Lease; and to pay when due the Fixed
Rent and Additional Rent and all charges, rates and other sums which by the
terms of this Lease are to be paid by ▇▇▇▇▇▇.
6.1.2 USE. To use the Premises only for the Permitted Uses,
and from time to time to procure all licenses and permits necessary therefor at
Tenant's sole expense.
6.1.3 REPAIR AND MAINTENANCE. Except as otherwise provided in
Articles V and VII, to keep the Premises in good order, condition and repair and
in at least as good order, condition and repair as they are in on the
Commencement Date or may be put in during the Term, reasonable use and wear,
fire and other casualty only excepted; to maintain in good condition all lawns
and planted areas and keep in good repair and clean and neat and free of snow
and ice all surfaced roadways, walks, and parking and loading areas; and to make
all repairs and to do all other work necessary for the foregoing purposes.
Notwithstanding the foregoing, in no event shall Tenant be required to make any
repair or replacement which would
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be considered capital in nature under generally accepted accounting principles,
and Landlord shall make all such repairs or replacements promptly after receipt
of written notice from Tenant.
6.1.4 COMPLIANCE WITH LAW. To make all non-structural,
non-capital repairs, alterations, additions or replacements to the Premises
required by any law or ordinance or any order or regulation of any public
authority; to keep the Premises equipped with all safety equipment required; to
pay all municipal, county, or state taxes assessed against the leasehold
interest hereunder, or against personal property of any kind on or about the
Premises; and to comply with the orders, regulations, variances, licenses and
permits of or granted by governmental authorities with respect to zoning,
building, fire, health and other codes, regulations, ordinances or laws
applicable to the Premises, and the condition, use or occupancy thereof, except
that Tenant may defer compliance so long as the validity of any such order,
regulation, code, ordinance or law shall be contested by Tenant in good faith
and by appropriate legal proceedings. Notwithstanding the foregoing, Landlord
shall make such repairs, alterations or replacements, shall furnish such safety
equipment, and shall otherwise bring the Premises into compliance with all
applicable laws as of the commencement of the Term of this Lease.
6.1.5 TENANT'S WORK. To procure at Tenant's sole expense all
necessary permits and licenses before undertaking any work on the Premises; to
do all such work in a good and workmanlike manner employing materials of good
quality and so as to conform with all applicable zoning, building, fire, health
and other codes, regulations, ordinances and laws; to pay promptly when due the
entire cost of any work on the Premises undertaken by Tenant so that the
Premises shall at all times be free of liens for labor and materials; to require
such contractors employed by Tenant to carry workmen's compensation insurance in
accordance with statutory requirements; and to save Landlord harmless and
indemnified from all injury, loss, claims or damage to any person or property
occasioned by or growing out of such work.
6.1.6 INDEMNITY. Tenant shall defend all actions against
Landlord, any partner, trustee, stockholder, officer, director, employee or
beneficiary of Landlord, holders of mortgages on the Premises and any other
party having an interest in the Premises (herein, "Indemnified Parties") with
respect to, and shall pay, protect, indemnify and save harmless, to the extent
permitted by law, all Indemnified Parties from and against any and all
liabilities, losses, damages, costs, expenses (including reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments of any
nature arising from (i) injury to or death of any person, or damage to or loss
of property, on or about the Premises or on adjoining sidewalks, streets or
ways, or connected with the use, condition or occupancy of any thereof, unless
such injury, death or damage was caused by the negligence or willful misconduct
of Landlord or its agents, contractors, licensees or invitees, (ii) violation by
Tenant of this Lease, or (iii) any act, fault, omission, or other misconduct of
Tenant or its agents, contractors, licensees, sublessees or invitees.
6.1.7 LANDLORD'S RIGHT TO ENTER. To permit Landlord and its
agents to enter the Premises at reasonable times after reasonable notice to
examine the Premises, to make such repairs and replacements as Landlord may
elect or as Landlord may be required to perform hereunder, and to show the
Premises to prospective purchasers, lenders and tenants, and, during the last
six months of the Term, to keep affixed in suitable places notices of
availability of the Premises.
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6.1.8 PERSONAL PROPERTY AT TENANT'S RISK. All of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of Tenant and of all persons claiming by, through or under Tenant
which, during the continuance of this Lease or any occupancy of the Premises by
Tenant or anyone claiming under Tenant, may be on the Premises, shall be at the
sole risk and hazard of Tenant and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft or from any other cause,
no part of said loss or damage is to be charged to or to be borne by Landlord,
except that Landlord shall in no event be indemnified or held harmless or
exonerated from any liability to Tenant or to any other person for any injury,
loss, damage or liability caused by Landlord's negligence or willful misconduct.
6.1.9 YIELD UP. At the expiration of the Term or earlier
termination of this Lease: to surrender all keys to the Premises, to remove all
furnishings, fixtures, equipment and other personal property now or hereafter
located in the Premises, and to deliver and yield up the Premises broom-clean
and in the same condition the Premises are in as of the Commencement Date,
reasonable wear and tear, fire and other casualty excepted.
6.2 NEGATIVE COVENANTS. Tenant covenants at all times during the Term
and for such further time as Tenant occupies the Premises or any part thereof:
6.2.1 ASSIGNMENT AND SUBLETTING. Not to assign, transfer,
mortgage or pledge this Lease or to grant a security interest in Tenant's rights
hereunder, or to sublease (which term shall be deemed to include the granting of
concessions and licenses and the like) or permit anyone other than Tenant to
occupy all or any part of the Premises or suffer or permit this Lease or the
leasehold interest hereby created or any other rights arising under this Lease
to be assigned, transferred or encumbered, in whole or in part, whether
voluntarily, involuntarily or by operation of law, unless, in each instance the
prior written consent of Landlord thereto shall have been obtained, which
consent shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing Tenant may assign this Lease or sublet any portion
or all of the Premises to any corporation, partnership, trust, association,
limited liability company or other business or organization (x) directly or
indirectly controlling and beneficially owning Tenant, (y) directly or
indirectly controlled by and beneficially owned by Tenant, or (z) under common
control with Tenant, or to any successor of Tenant by merger, consolidation or
acquisition of substantially all of the stock or assets of Tenant, without the
prior written consent of Landlord.
If for any assignment or sublease or occupancy by another, Tenant receives rent
or other consideration, either initially or over the term of the assignment,
sublease or occupancy, after payment of any expenses incurred in connection
therewith, in excess of the rent called for hereunder, or in case of sublease of
part of the Premises, in excess of such rent fairly allocable to the part so
subleased, after deducting all expenses of such transaction including, without
limitation, brokerage and legal fees and demising walls and other leasehold
improvements, Tenant shall pay to Landlord, as Additional Rent, 50% of the
excess of each such payment of rent or other consideration received by Tenant
promptly after its receipt.
Any attempted assignment, transfer, mortgage, pledge, grant of security
interest, sublease or other encumbrance, except as permitted by this Section
6.2.1, shall be void. No assignment,
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transfer, mortgage, grant of security interest, sublease or other encumbrance,
whether or not approved, and no indulgence granted by Landlord to any assignee,
sublessee or occupant shall in any way impair ▇▇▇▇▇▇'s continuing primary
liability (which after an assignment or subletting shall be joint and several
with the assignee or sublessee) of Tenant hereunder, and no approval in a
particular instance shall be deemed to be a waiver of the obligation to obtain
▇▇▇▇▇▇▇▇'s approval in any other case.
6.2.2 OVERLOADING AND NUISANCE. Not to injure, overload,
deface or otherwise harm the Premises; nor commit any nuisance; not to dump,
flush, or in any way introduce any Hazardous Materials or any other toxic
substances into the septic, sewage or other waste disposal system serving the
Premises in violation of law; not to generate, store, use or dispose of
Hazardous Materials in or on the Premises in violation of law, or commit or
suffer to be committed in or on the Premises any act in violation of law.
ARTICLE VII
CASUALTY OR TAKING
7.1 TERMINATION. In the event that the Premises, or any material part
thereof, shall be taken by any public authority or for any public use, or shall
be destroyed or damaged by fire or casualty, or by the action of any public
authority, then this Lease may be terminated at the election of Tenant. Such
election, which may be made notwithstanding the fact that Landlord's entire
interest may have been divested, shall be made by the giving of notice within 30
days after the right of election accrues.
7.2 RESTORATION. If this Lease is not terminated as aforesaid, this
Lease shall continue in force and a just proportion of the rent reserved,
according to the nature and extent of the damages sustained by the Premises,
shall be suspended or abated until the Premises, or what may remain thereof,
shall be put by Landlord in proper condition for use, which Landlord covenants
to do with reasonable diligence.
ARTICLE VIII
DEFAULTS
8.1 EVENTS OF DEFAULT. If (a) Tenant shall default in the performance
of any of its obligations to pay the Fixed Rent or Additional Rent hereunder and
if such default shall continue for 20 days after notice from Landlord
designating such default or if within 30 days after notice from Landlord to
Tenant specifying any other default or defaults Tenant has not commenced
diligently to correct the default or defaults so specified or has not thereafter
diligently pursued such correction to completion, or (b) Tenant becomes
insolvent or fails to pay its debts as they fall due, or (c) a trust mortgage or
assignment is made by Tenant for the benefit of creditors, or (d) Tenant
proposes a composition, arrangement, reorganization or recapitalization with
creditors, or (e) the leasehold estate under this Lease or any substantial part
of the property of Tenant is taken on execution, or by other process of law, or
is attached or subjected to any other involuntary encumbrance, or (f) a
receiver, trustee, custodian, guardian, liquidator or similar agent is appointed
with respect to Tenant, or if any such person or a mortgagee, secured party or
other creditor takes possession of the Premises or of any substantial part of
the property of
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Tenant, and, in either case, if such appointment or taking of possession is not
terminated within 90 days after it first occurs, or (g) a petition is filed by
or with the consent of Tenant under any federal or state law concerning
bankruptcy, insolvency, reorganization, arrangement, or relief from creditors,
or (h) a petition is filed against Tenant under any federal or state law
concerning bankruptcy, insolvency, reorganization, arrangement, or relief from
creditors, and such petition is not dismissed within 90 days thereafter, or (i)
Tenant dissolves or is dissolved or liquidates or adopts any plan or commences
any proceeding, the result of which is intended to include dissolution or
liquidation, then, and in any of such cases, Landlord and the agents and
servants of Landlord lawfully may, in addition to and not in derogation of any
remedies for any preceding breach of covenant, immediately or at any time
thereafter and without demand or notice and with or without process of law enter
into and upon the Premises or any part thereof in the name of the whole or mail
a notice of termination addressed to Tenant, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove its and their effects without being deemed guilty of any
manner of trespass and without prejudice to any remedies which might otherwise
be used for arrears of rent or prior breach of covenant, and upon such entry or
mailing as aforesaid this Lease shall terminate.
8.2 REMEDIES. In the event that this Lease is terminated under any of
the provisions contained in Section 8.1 or shall be otherwise terminated for
breach of any obligation of Tenant, Tenant covenants to pay forthwith to
Landlord, as compensation, the excess of the total rent reserved for the residue
of the Term over the rental value of the Premises for said residue of the Term,
discounted to present value using the then current discount rate of the Federal
Reserve Bank of Boston. In calculating the rent reserved there shall be
included, in addition to the Fixed Rent and Additional Rent, the value of all
other considerations agreed to be paid or performed by ▇▇▇▇▇▇ for said residue.
Tenant further covenants as additional and cumulative obligations after any such
termination to pay punctually to Landlord all the sums and to perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated. In calculating the amounts to be paid by Tenant pursuant to the
next preceding sentence Tenant shall be credited with the portion of any amount
paid to Landlord as compensation as in this Section 8.2 provided, allocable to
the corresponding portion of the Term and also with the net proceeds of any rent
obtained by Landlord by reletting the Premises, after deducting all Landlord's
reasonable expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, fees for legal
services and expenses of preparing the Premises for such reletting, it being
agreed that Landlord shall use reasonable efforts to relet the Premises and to
mitigate damages.
Nothing contained in this Lease shall, however, limit or prejudice the right of
Landlord to prove for and obtain in proceedings under any federal or state law
relating to bankruptcy or insolvency or reorganization or arrangement, an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, the damages are to be proved,
whether or not the amount be greater than the amount of the loss or damages
referred to above.
8.3 REMEDIES CUMULATIVE. Any and all rights and remedies which Landlord
or Tenant may have under this Lease, and at law and equity, shall be cumulative
and shall not be
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deemed inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law.
8.4 LANDLORD'S AND TENANT'S RIGHT TO CURE DEFAULTS. Either Landlord or
Tenant may, but shall not be obligated to, cure, at any time, following 10 days'
prior notice to the other party hereto, except in cases of emergency when no
notice shall be required, any default by the other party hereto under this
Lease; and whenever the non-defaulting party so elects, all costs and expenses
incurred by such non-defaulting party, including reasonable attorneys' fees, in
curing a default shall be paid by the defaulting party on demand, together with
interest thereon at the rate provided in Section 4.3. In the event Landlord
fails to reimburse any such amount paid by Tenant within ten (10) days after
demand, Tenant shall have the right to offset such amount against the Fixed Rent
and Additional Rent payable by Tenant hereunder.
8.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord
or Tenant to any act or omission which otherwise would be a breach of any
covenant or condition herein, or any waiver by Landlord or Tenant of the breach
of any covenant or condition herein, shall not in any way be held or construed
(unless expressly so declared) to operate so as to impair the continuing
obligation of any covenant or condition herein, or otherwise, except as to the
specific instance, operate to permit similar acts or omissions.
The failure of Landlord or Tenant to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this Lease shall
not be deemed a waiver of such violation nor prevent a subsequent act, which
would have originally constituted a violation, from having all the force and
effect of an original violation. The receipt by Landlord of rent with knowledge
of the breach of any covenant of this Lease shall not be deemed to have been a
waiver of such breach by Landlord, or by Tenant, unless such waiver be in
writing signed by the party to be charged. No consent or waiver, express or
implied, by Landlord or Tenant to or of any breach of any agreement or duty
shall be construed as a waiver or consent to or of any other breach of the same
or any other agreement or duty.
8.6 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser
sum than the Fixed Rent, Additional Rent or any other charge then due shall be
deemed to be other than on account of the earliest installment of such rent or
charge due, unless Landlord elects by notice to Tenant to credit such sum
against the most recent installment due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent or other
charge be deemed a waiver, an agreement or an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such installment or pursue any other remedy in this
Lease provided.
ARTICLE IX
MORTGAGES
9.1 RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein
includes mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or
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holders of a mortgage. Until the holder of a mortgage shall enter and take
possession of the Premises for the purpose of foreclosure, such holder shall
have only such rights of Landlord as are necessary to preserve the integrity of
this Lease as security. Upon entry and taking possession of the Premises for the
purpose of foreclosure, such holder shall have all the rights of Landlord.
Notwithstanding any other provision of this Lease to the contrary, including
without limitation Section 10.3, no such holder of a mortgage shall be liable
either as mortgagee or as assignee, to perform, or be liable in damages for
failure to perform, any of the obligations of Landlord unless and until such
holder shall enter and take possession of the Premises for the purpose of
foreclosure. Upon entry for the purpose of foreclosure, such holder shall be
liable to perform all of the obligations of Landlord accruing from and after
such entry, provided that a discontinuance of any foreclosure proceeding shall
be deemed a conveyance under said provisions to the owner of the Premises. No
Fixed Rent, Additional Rent or any other charge shall be paid more than 30 days
prior to the due dates thereof and payments made in violation of this provision
shall (except to the extent that such payments are actually received by a
mortgagee in possession or in the process of foreclosing its mortgage) be a
nullity as against such mortgagee and Tenant shall be liable for the amount of
such payments to such mortgagee.
The covenants and agreements contained in this Lease with respect to the rights,
powers and benefits of a holder of a mortgage (including, without limitation,
the covenants and agreements contained in this Section 9.1) constitute a
continuing offer to any person, corporation or other entity, which by accepting
a mortgage subject to this Lease, assumes the obligations herein set forth with
respect to such holder; such holder is hereby constituted a party of this Lease
as an obligee hereunder to the same extent as though its name were written
hereon as such; and such holder shall be entitled to enforce such provisions in
its own name. ▇▇▇▇▇▇ agrees on request of ▇▇▇▇▇▇▇▇ to execute and deliver from
time to time any agreement which may be necessary to implement the provisions of
this Section 9.1.
9.2 LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES. This Lease is and shall
continue to be subject and subordinate to any presently existing mortgage or
mortgages secured by the Premises, and to any and all advances hereafter made
thereunder, and to the interest of the holder or holders thereof in the
Premises. The holder of any such presently existing mortgage shall have the
election to subordinate the same to this Lease, exercisable by filing with the
appropriate recording office a notice of such election, whereupon this Lease
shall have priority over such mortgage. A copy of such filing shall be given to
Tenant. Such election by the holder of any presently existing mortgage shall not
affect priority with respect to this Lease of any other presently existing
mortgage.
Any mortgage or other voluntary lien or other encumbrance recorded subsequent to
the recording of the notice or short form referred to in Section 10.3, or the
date of this Lease if no such notice or short form is required under applicable
law to impart constructive notice to third parties, shall be subject and
subordinate to this Lease unless Landlord and the holder of any such subsequent
mortgage and the holders of all mortgages prior to such subsequent mortgage
elect to subordinate this Lease to such subsequent mortgage and to any and all
advances thereafter made thereunder and to the interest of the holder thereof in
the Premises, such election to be exercisable by ▇▇▇▇▇▇▇▇ and all such holders
by filing with the appropriate recording office (a) a notice of such election
and (b) an agreement between the holder of such subsequent mortgage and Tenant,
consented to by holders of all mortgages having priority over such subsequent
mortgage, by the
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terms of which such holder will agree to recognize the rights of Tenant under
this Lease and to accept Tenant as tenant of the Premises under the terms and
conditions of this Lease in the event of acquisition of title by such holder
through foreclosure proceedings or otherwise and Tenant will agree to recognize
the holder of such subsequent mortgage as Landlord in such event, which
agreement shall be made expressly to bind and inure to the benefit of the
successors and assigns of Tenant and of such holder and upon anyone purchasing
said Premises at any foreclosure sale brought by such holder. Tenant and
Landlord agree to execute and deliver any appropriate instruments necessary to
carry out the agreements contained in this Section 9.2.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required or
permitted hereunder shall be in writing and addressed, if to the Tenant, at the
Original Address of Tenant or such other address as Tenant shall have last
designated by notice in writing to Landlord and, if to Landlord, at the Original
Address of Landlord or such other address as Landlord shall have last designated
by notice in writing to Tenant. Any notice shall be deemed duly given on the
third day after the same was mailed to such address postage prepaid, registered
or certified mail, return receipt requested, or when delivered to such address
by hand or by nationally recognized overnight courier service.
10.2 ESTOPPEL CERTIFICATE. Each party agrees from time to time, upon
not less than fifteen (15) days' prior written request by the other party, to
execute, acknowledge and deliver to the requesting party a statement in writing
certifying that this Lease is unmodified and in full force and effect and that
there are no uncured defaults of Landlord or Tenant under this Lease, and if
Landlord is the requesting party that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the Annual Fixed Rent and
additional rent and to perform its other covenants under this Lease (or, if
there have been any modifications that the same is in full force and effect as
modified and stating the modifications and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable detail), the dates
to which the Fixed Rent, additional rent and other charges have been paid and
such other matters relating to the Lease as may be reasonably requested. Any
such statement delivered pursuant to this Section 10.2 may be relied upon by a
prospective purchaser or mortgagee of the Premises or any prospective assignee
of any mortgagee of the Premises, or by a prospective assignee of Tenant's
interest in this Lease, as the case may be.
10.3 LEASE NOT TO BE RECORDED. ▇▇▇▇▇▇ agrees that it will not record
this Lease. Both parties shall, upon the request of either, execute and deliver
a notice or short form of this Lease in such form, if any, as may be permitted
by applicable statute. If this Lease is terminated before the Term expires the
parties shall execute, deliver and record an instrument acknowledging such fact
and the actual date of termination of this Lease.
10.4 BIND AND INURE. The obligations of this Lease shall run with the
land, and this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
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10.5 ACTS OF GOD. In any case where either party hereto is required to
do any act, delays caused by or resulting from Acts of God, war, civil
commotion, fire, flood or other casualty, labor difficulties, shortages of
labor, materials or equipment, government regulations, unusually severe weather,
or other causes beyond such party's reasonable control shall not be counted in
determining the time during which work shall be completed, whether such time be
designated by a fixed date, a fixed time or a "reasonable time", and such time
shall be deemed to be extended by the period of such delay.
10.6 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default
in the performance of any of its obligations hereunder unless it shall fail to
perform such obligations and such failure shall continue for a period of 30 days
following receipt of notice from Tenant, or such additional time as is
reasonably required with the exercise of reasonable diligence to correct any
such default, after notice has been given by Tenant to Landlord specifying the
nature of Landlord's default.
10.7 BROKERAGE. Landlord and Tenant each warrants and represents to the
other party hereto that it has had no dealings with any broker or agent in
connection with this Lease and covenants to defend, hold harmless and indemnify
the other party hereto from and against any and all cost, expense or liability
for any breach of the foregoing representation.
10.8 APPROVALS AND CONSENT. Whenever the consent or approval of either
party is required hereunder, the same shall not be unreasonably withheld or
delayed.
10.9 APPLICABLE LAW AND CONSTRUCTION.
10.9.1 APPLICABLE LAW. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located. If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstances shall be declared invalid, or
unenforceable by the final ruling of a court of competent jurisdiction having
final review, the remaining terms, covenants, conditions and provisions of this
Lease and their application to persons or circumstances shall not be affected
thereby and shall continue to be enforced and recognized as valid agreements of
the parties, and in the place of such invalid or unenforceable provision, there
shall be substituted a like, but valid and enforceable provision which comports
to the findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
10.9.2 NO OTHER AGREEMENT. There are no oral or written
agreements between Landlord and Tenant affecting this Lease. This Lease may be
amended, and the provisions hereof may be waived or modified, only by
instruments in writing executed by Landlord and ▇▇▇▇▇▇.
10.9.3 TITLES. The titles of the several Articles and Sections
contained herein are for convenience only and shall not be considered in
construing this Lease.
10.9.4 "LANDLORD" AND "TENANT". Unless repugnant to the
context, the words "Landlord" and "Tenant" appearing in this Lease shall be
construed to mean those named above and their respective heirs, executors,
administrators, successors and assigns, and those claiming through or under them
respectively.
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10.10 SUBMISSION NOT AN OFFER. The submission of a draft of this
Lease or a summary of some or all of its provisions does not constitute an
offer to lease or demise the Premises, it being understood and agreed that
neither Landlord nor Tenant shall be legally bound with respect to the
leasing of the Premises unless and until this Lease has been executed by both
Landlord and ▇▇▇▇▇▇ and a fully executed copy delivered.
WITNESS the execution hereof under seal as of the day and year set forth in
Section 1.1.
Landlord:
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Trustee of More
Bricks Realty Trust, and not
individually
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Tenant:
FurnitureSite, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: CEO
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