Exhibit 10(vii)
LEASE AGREEMENT
(NNN)
1. PARTIES. This Lease, dated for reference purposes only, October 29, 1998, is
made by and between John Afridi (herein called "Landlord") and RTO OPERATING,
INC. D/B/A HomeChoice (herein called "Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases from Landlord
for the term at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the County of Salt Lake, State of Utah
commonly known as 1374 South State Street, Salt Lake City, Utah and described
as: Approximately 4,500 Square Feet of Showroom/Retail/Storage space, and herein
referred to as the "Premises".
3. TERM.
3.1 Term. The term of this Lease shall be for five (5) years commencing on
February 1, 1999 and ending on January 30, 2004 unless sooner terminated
pursuant to any provision hereof. Tenant shall have an option to renew this
lease for a second term of rive years, at a rental rate of $3,800 per month. The
option must be exercised by Tenant o-ivina written notice to the Landlord at
least ninety days prior to the expiration of the initial term hereof.
3.2 Delay in Commencement. Notwithstanding said commencement date, if for
any reason Landlord cannot deliver possession of the Premises to Tenant on said
date, Landlord shall not be subject to any liability therefore, nor shall such
failure affect the validity of this Lease or the obligations of Tenant hereunder
or extend the term hereof, but in such case Tenant shall not be obligated to pay
rent until possession of the Premises is tendered to Tenant; provided, however
that if Landlord shall not have delivered possession of the Premises within
sixty (60) days from said commencement date, tenant may, at Tenant's option, by
notice in writing to Landlord within ten (10) days thereafter, cancel this
Lease, in which event the parties shall be discharged from all obligations
hereunder. If Tenant occupies the Premises prior to said commencement date, such
occupancy shall be subject to all provisions hereof, such occupancy shall not
advance the termination date, and the Tenant shall pay rent for such period at
the initial monthly rates set forth below.
4. BASIC RENTAL PAYMENTS.
4.1 Basic Annual Rent. Tenant agrees to pay to Landlord as basic annual
rent (the "Basic Annual Rent") at such place as Landlord may designate, without
prior demand therefore and without any deduction or set off whatsoever, the
following: $3,800 per month for months 1-60
Said monthly installments shall be paid in advance on the first day of each
calendar month during the term of the lease. Simultaneously with the execution
hereof, Tenant has paid to Landlord the first month's rent, receipt whereof is
hereby acknowledged, subject to collection, however, if made by check. In the
event the Commencement Date occurs on a day other than the first day of a
calendar month, then rent shall be paid on the Commencement Date for the initial
fractional calendar month pro-rated on a per-diem basis (based upon a thirty
(30) day month) and paid on the Commencement Date.
4.2 Additional Monetary Obligations. Tenant shall also pay as base rental
(in addition to the Basic Annual Rent) all other sums of money as shall become
due and payable by Tenant to Landlord under this Lease.
67
<PAGE>
Landlord shall have the same remedies in the case of a default in the payment of
said other sums of money as are available to Landlord in the case of a default
in the payment of one or more installments of Basic Annual Rent.
ADDITIONAL RENT. All charges payable by Tenant other than Base Rent are
called "Additional Rent." Unless this Lease provides otherwise, Tenant shall pay
all Additional Rent when billed. The term "rent" shall mean Base Rent and
Additional rent.
(a) "Lease Year" shall mean any twelve month period beginning on the
Commencement Date or any anniversary thereof during the term of the lease.
(b) "Estimated Basic Costs" shall mean the projected amount of Basic costs
for any given Lease Year as estimated by Landlord prior to the commencement of
such Lease Year.
(c) "Tenant's Proportionate Share" shall mean sixty five percent (65%).
LATE CHARGES. In the event Tenant shall fail to pay said rent (including
any additional rental due hereunder) on the due date or within ten (10) working
days thereafter, a late charge of ten (10%) percent per month of the delinquent
rental shall be added to said rental and paid to the Landlord together
therewith.
5. SECURITY DEPOSIT. None.
6. AUTHORIZED USE. Tenant shall use the leased Premises for the following
purpose, and for no other purpose whatsoever, without the written consent of
Landlord first had and obtained: General Retail Tenant shall not commit or
knowingly permit any waste of the leased Premises and shall not permit any part
of the leased Premises to be used for any unlawful purpose. The Tenant will
comply with all applicable Federal, State and local laws, ordinances and
regulations relating to the leased Premises and its use and operation by the
Tenant.
7. PROPERTY TAXES.
7.1 Real Property Taxes. Tenant shall pay sixty five percent (65%) of the
Real Property Taxes on the Property (and 100% of any fees, taxes or assessments
against, or as a result of, any tenant improvements installed on the Property by
or for the benefit of Tenant during the Lease Term. Subject to Paragraph 7.3
below, such payment shall be made within fifteen ( 15) days after receipt of
Landlord's written statement. Landlord shall reimburse Tenant for any real
property taxes paid by Tenant covering any period of time prior to or after the
Lease Term. If Tenant fails to pay the real property taxes then due, Landlord
may pay the taxes and Tenant shall reimburse Landlord for the amount of such tax
payment as Addition Rent, together with the late charge under Paragraph 4.
7.2 Definition of "Real Property Tax". Real property tax means: (i) any
fee, license fee, license tax, business license fee, commercial rental tax,
levy, charge, assessment, penalty or tax imposed by any taxing authority against
the Property; (ii) any tax on the Landlord's right to receive, or the receipt of
rent or income from the Property or against Landlord's business of leasing the
Property; (iii) any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Property by any
Governmental agency; (iv) any tax imposed upon this transaction or based upon a
re-assessment of the Property due to a change of ownership, as defined by
applicable law, or other transfer of all or part of Landlord's interest in the
Property; and (v) any charge or fee replacing any tax previously included within
the definition of real property tax. "Real property tax" does not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes.
68
<PAGE>
7.3 Tax Assessment. Tenant agrees to pay sixty five percent (65%) of Real
Property Tax assessed to the entire parcel owned by Landlord. Tenant shall pay
such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement.
7.4 Personal Property Tax.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall try to have personal property taxed separately from the
Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within
fifteen (15) days after Tenant receives a written statement from Landlord
for such personal property taxes.
8. INSURANCE.
8.1 Fire and Casualty Insurance. It shall be the responsibility of the
Tenant to insure his equipment, furniture, fixtures and other personal property.
Tenant shall insure and keep insured his leasehold improvements against the
perils of fire, lightning, the "Extended Coverages", vandalism and malicious
mischief in an amount sufficient to provide recovery of not less than ninety
percent (90%) of the replacement value of the Tenant's leasehold improvements,
such insurance shall be made payable to Landlord and Mortgagee (if any) as their
interests may appear. Tenant shall be responsible for any damage to Premises as
a result of forced entry into his space or burglary thereof. Such insurance
provided for hereunder shall be in a company or companies acceptable to Landlord
and shall be procured and paid for by Tenant, and said policy or policies will
be delivered to Landlord. Such insurance may, at Tenant's election, be carried
under any General Blanket Insurance Policy of tenant; provided, however, that a
satisfactory Certificate of Insurance, together with proof of payment of the
premium shall be deposited with Landlord
Upon Landlord's written request, Tenant agrees to re-invest all insurance
proceeds received from the loss or damage or destruction of said leasehold
improvements to rebuild said improvements in a manner satisfactory to Landlord,
regardless of whether or not Tenant elects to terminate this Lease as herein
provided. In the event Tenant elects to terminate this Lease as provided in
Paragraph 16, and providing said leasehold improvements are not rebuilt, Tenant
does hereby assign all of his right, title and interest in the insurance
proceeds covering leasehold improvements to Landlord.
Landlord shall insure the Premises (as a Basic Cost) exclusive of Tenant's
leasehold improvements against the perils of fire, lightning, the "Extended
Coverages", vandalism and malicious mischief in an amount sufficient to provide
recovery of not less than ninety percent (90%) of replacement value.
8.2 Increasing Insurance Risk on Leased Premises. Tenant will not permit
said leased Premises to be used for any purpose which would render the insurance
thereon void or cause cancellation thereof or the insurance risk more hazardous
or increase the insurance premiums in effect at the time just prior to the
commencement of the term of this Lease. Tenant will not keep, use or sell, or
allow to be kept, used or Sold in or about the leased Premises, any articles or
material which are prohibited by law or by standard fire insurance policies of
the kind customarily in force with respect to premises of the same general type
as those covered by this Lease. Tenant further agrees to pay to the Landlord on
demand, any increase in insurance premiums on the premises, resulting
69
<PAGE>
from any cause whatsoever, over those premiums in effect at the time just prior
to the commencement of the terms of this Lease. A mutual agreement between
Tenant and Landlord must be met prior to any change in insurance coverage of
Landlord Policy that would increase the payment to the Tenant under this
paragraph.
8.3 Liability Insurance and Property Insurance. Tenant will pay its
proportionate share of the Liability Insurance and Property Insurance on the
building. Tenant shall pay such share to Landlord within fifteen (15) days after
receipt of Landlord's written statement.
9. UTILITIES. Tenant shall pay, directly to the appropriate supplier, the cost
of all natural gas, heat, light, power, sewer service, telephone, water, refuse
disposal and other utilities and services supplied to the Property. However, if
any services or utilities are jointly metered with other property, Tenant must
pay Tenant's proportionate share of the cost of such utilities and services and
Tenant shall pay such share to Landlord within fifteen (15) days after Landlord
provides Tenant a written receipt of the service or utility.
10. REPAIR AND CARE OF BUILDING. Tenant agrees to keep the interior of the
building, and the improvement on the Premises in good condition and repair and
agrees to pay for all labor, materials and other repairs to the electrical
wiring, plumbing, air conditioning and heating systems (including spring and
fall servicing, and replacement of filters as recommended by the manufacturers);
and to clean and paint the interior of the leased Premises as the same may or
may not be necessary in order to maintain said Premises in a clean, attractive
and sanitary condition.
11. REPAIR OF BUILDING BY LANDLORD. Landlord agrees, for the term of this Lease,
to maintain the roof, in good condition and to repair any latent defects in the
exterior walls, floor joints, and foundations. Landlord shall again repair any
defects in the plumbing, electrical, heating and air conditioning systems prior
to date of occupancy, as well as any damage that might result from acts of
Landlord or Landlord's representatives. Landlord shall not, however, be
obligated to repair any such damage until written notice of the need of repair
shall have been given to Landlord by Tenant, and, after such notice is so given,
Landlord shall have a reasonable time in which to make such repairs.
12. CONDITION OF THE PREMISES. Tenant accepts the leased Premises in the
condition they are in at the time of its taking possession of said Premises,
except for attached "Landlord's Scope of Work". Tenant agrees, if, during the
term of this Lease, Tenant shall change the usual method of conductance Tenant's
business on the leased Premises, or should Tenant install thereon or therein any
new facilities, or should new laws and regulations be imposed, concerning
Tenant's authorized use, Tenant will, at the sole cost and expense of Tenant,
make alterations or improvements in or to the demised Premises which may be
required to reason of any Federal or state law, or by any municipal ordinance or
regulation applicable thereto.
13. ALTERATION OF BUILDING AND INSTALLATION OF FIXTURES AND OTHER APPURTENANCES.
Tenant may, with written consent of Landlord, who agrees not to withhold his
consent unnecessarily, but at Tenant's sole cost and expense in a good
workmanlike manner, make such alterations and repairs to the leased Premises as
Tenant may require for the conduct of its business without, materially altering
the basic character of the building or improvements, or weakening any structure
on the demised Premises. Tenant shall have the right, with the written
permission of Landlord, to erect, at Tenant's sole cost, and expense, such
temporary or permanent partitions, including office partitions, as may be
necessary to facilitate the handling of Tenant's business and to install
telephone and telephone equipment and wiring, and electrical fixtures,
additional lights and wiring and other trade appliances. All installations shall
be done in a good workmanlike manner. Any alterations or improvements to the
leased Premises, including partitions, all electrical fixtures, lights and
wiring shall, at the
70
<PAGE>
option of Landlord, become the property of Landlord, at the expiration or sooner
termination of this Lease. By mutual agreement Tenant shall have the right to
change any leasehold improvements prior to termination of the Lease. Should
Landlord request Tenant to remove all or any part of the above mentioned items,
Tenant shall do so prior to the expiration of this Lease and repair the Premises
as described below. Temporary shelves, bins and machinery installed by Tenant
shall remain the property of Tenant and may be removed by Tenant at any time;
provided, however, that all covenants, including rent, due hereunder to Landlord
shall have been complied with and paid. At the expiration or sooner termination
of this Lease, or any extension thereof, Tenant shall remove said shelves, bins
and machinery, and repair, in a good workmanlike manner, all damage done to the
leased premises by such removal.
14. ERECTION AND REMOVAL OF SIGNS. Tenant may, if building policy permits, place
suitable signs on the leased Premises for the purpose of indicating the nature
of the business carried on by Tenant in such Premises; provided, however, that
such signs shall be in keeping with other signs in the district where the leased
Premises are located; and provided, further, that the location and size of such
signs shall be approved by Landlord prior to their erection. Signs shall be
removed prior to the expiration of this lease and any damage to the leased
Premises caused by installation or removal of signs shall be repaired at
expenses of the Tenant. All work shall be completed in a good workmanlike
manner.
15. GLASS. Tenant agrees to immediately replace all class broken or damaged
during the term of this Lease with glass of the same quality as that broken or
damaged.
16. RIGHT OF ENTRY BY LANDLORD. Tenant shall permit inspection of the demised
premises during reasonable business hours, with prior 24 hour notification, by
Landlord or Landlord's agents or representatives for the purpose of ascertaining
the condition of the demised Premises and in order that Landlord may make such
repairs as may be required to be made by Landlord under the terms of this Lease.
Thirty (30) days prior to the expiration of this Lease, Landlord may cost
suitable notice on the demised Premises that the same are "For Rent" and may
show the Premises to prospective tenants at reasonable times with prior 24 hour
notification. Landlord may not, however, thereby unnecessarily interfere with
the use of demised Premises by Tenant.
17. ASSIGNMENT AND SUBLETTING. Neither this Lease nor any interest tenant
voluntarily or involuntarily, by operation of law, and neither all nor any part
of the leased Premises shall be sublet by Tenant, without Landlord's permission,
which shall not be unreasonably withheld.
18. DAMAGE OR DESTRUCTION. If the demised Premises or any part thereof shall be
damaged or destroyed by fire or other casualty, Landlord shall promptly repair
all such damage and restore the demised Premises without expense or interest to
Tenant, subject to delays due to adjustment of insurance claims, strikes and
other causes beyond Landlord's control. If such damage or destruction shall
render the Premises unrentable in whole or in part, the rent shall be abated
wholly or proportionately as the case may be until the damage shall be repaired
the Premises restored. If the damage or destruction shall be so extensive as to
require the substantial rebuilding, i.e. expenditure of fifty percent (50%) or
more of replacement cost of the building or buildings on the demised Premises,
Landlord or Tenant may elect to terminate this Lease by written notice to the
other given within thirty (30) days after occurrence of such damage or
destruction.
Landlord and Tenant hereby release each other from responsibility for loss
or damage occurring on or to the leased Premises or the premises of which they
are a part or to the contents of either thereof, caused by fire or other hazards
ordinarily covered by fire and extended coverage insurance policies and each
waives all rights of recover against the other for such loss or damage. Willful
misconduct lawfully attributed to either part, whether in whole or in part a
contributing cause of the casualty giving rise to the loss or damage, shall not
be excused under the foregoing release and waiver.
71
<PAGE>
19. INJURIES AND PROPERTY DAMAGE. Tenant agrees to indemnify and hold harmless
Landlord of and from any and all claims of any kind or nature arising from
Tenant's use of the demised Premises during the term hereof. and Tenant hereby
waives ail claims against Landlord for damage to goods, wares, merchandise or
for injure, to persons in and upon the Premises from any cause whatsoever except
such as in that result from the negligence of Landlord or Landlord's
representatives or from performance by Landlord. Tenant shall at all times
during the term hereof keep in effect in responsible companies liability
insurance in the names of and for the benefit of Tenant and Landlord with limits
as follows: Bodily Injury $500,000.00 each occurrence; Property
Damage.$100.000.00,or in lieu thereof . a combined limit of bodily injury and
property damage liability of not less than $500,000.00.
Such insurance may, at Tenant's election, be carried under any general
blanket coverage of Tenant. A renewal policy shall be procured not less than Ten
(10) days prior to the expiration of any policy. Each original policy or a
certified copy thereof, or a satisfactory certificate of the insured evidencing
insurance carried with proof of payment of the premium shall be deposited with
Landlord. Tenant shall have the right to settle and adjust all liability claims
and all other claims against the insurance companies, but without subjecting
Landlord to any liability or obligation.
20. SURRENDER OF PREMISES. Tenant agrees to surrender the leased premises at the
expiration, or sooner termination of this Lease, or any extension thereof, in
the same condition as when said Premises were delivered to Tenant, or as
altered, pursuant to the provisions of this Lease, ordinary wear, tear and
damage by the elements excepted, and Tenant shall remove all of its personal
property.
21. HOLDOVER. Should the Landlord permit Tenant to holdover the leased Premises
of any part thereof. after the expiration of the term of this Lease. then and
unless otherwise agreed in writing, such holding over shall constitute a tenancy
from month-to-month only, and shall in no event be construed as a renewal of
this Lease and all provisions of this Lease not inconsistent with a tenancy from
month-to-month shall remain in full force and effect during, the month-to-month
tenancy. Tenant agrees to give Landlord sixty (60) days prior written notice of
its intent to vacate Premises. Tenant agrees to vacate the premises within sixty
(60) days of this notice. The rental for the month-to-month tenancy shall be
equal to the Tenants actual rent at that time.
22. QUIET ENJOYMENT. If and so long as Tenant pays the rents reserved by this
Lease and performs and observes all the covenants and provisions hereof, Tenant
shall quietly enjoy the demised Premises, subject, however, to the terms of this
Lease, and Landlord will warrant and defend Tenant in the enjoyment and peaceful
possession of the demised Premises throughout the terms of this Lease.
23. WAIVER OF COVENANTS. The failure of any party to enforce the provisions of
this Agreement shall not constitute a waiver unless specifically stated in
writing, signed by the party whose rights are deemed waived regardless of a
party's knowledge of a breach hereunder.
24. DEFAULT. If Tenant shall make default in the fulfillment of any of the
covenants and conditions hereof except default in payment of rent, Landlord may,
at its option, after fifteen (15) days prior notice to Tenant, make performance
for Tenant and for the purpose advance such amounts as may be necessary. Any
amounts so advanced or any expense incurred, or sum of money paid by Landlord by
reason of the failure of Tenant to comply with any covenant, agreement,
obligation or provision of this Lease, or in defending any action to which
landlord may be subjected by reason of any such failure for any reason of this
Lease, shall be deemed to be additional rent for the leased Premises and shall
be due and payable to Landlord on demand. The acceptance by Landlord of any
72
<PAGE>
installment of fixed rent, Or of any additional rent due under this or any other
paragraph of this lease, shall not be a waiver of any other rent then due nor of
the right to demand the performance of any other obligation of the Tenant under
this Lease. Interest shall be paid to Landlord on all sums advanced by Landlord
at an annual interest rate of ten (10%) percent.
If Tenant shall make default in fulfillment of any of the covenants or
conditions of this Lease (other than the covenants for the payment of rent or
other amounts) and any such default shall continue for a period of fifteen (15)
days after written notice, then Landlord may, at its option, terminate this
Lease by giving Tenant written notice of such termination and, thereupon, this
Lease shall expire as fully and completely as if that day were the date
definitely fixed for the expiration of the term of this Lease and Tenant shall
quit and surrender the leased Premises.
25. DEFAULT IN RENT, INSOLVENCY OF TENANT. If Tenant shall make default in the
payment of the rent reserved hereunder, or any part thereof, or in making any
other payment herein provided for, and any such default shall continue for a
period of ten (10) days, or if Tenant shall be legally dismissed therefrom by or
under any authority other than Landlord, or if Tenant shall file a voluntary
petition in bankruptcy or if Tenant shall file any petition or institute any
proceedings under any insolvency of Bankruptcy Act or any amendment thereto
hereafter made, seeking to effect its reorganization or a composition with its
creditors, or if in any proceeding based on the insolvency of Tenant or relating
to bankruptcy proceedings, a receiver or trustee shall be appointed for Tenant
or the leased premises or if any proceeding shall be commenced for the
reorganization of Tenant or if the leasehold estate created hereby shall be
taken on execution or by any process of law or if Tenant shall admit in writing,
its inability to pay its obligations generally as they become due, then
Landlord, in addition to any other rights or remedies it may have, shall have
the immediate right of re-entry and may remove all persons and property from the
premises. Such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant, Landlord may elect to
re-enter as herein provided, or Landlord may take possession pursuant to this
Lease and re-let said premises or any part thereof for such term of terms (which
may be for a term extending beyond the term of this Lease) and at such rental or
rentals and upon such other terms and conditions as Landlord in the exercise of
Landlord's sole discretion may deem advisable with the right to make alterations
and repairs to said premises, Upon each such re-letting, Tenant shall be
immediately liable for and shall pay to Landlord, in addition to any
indebtedness due hereunder, the costs and expenses of such re-letting including
advertising costs, brokerage fees, any reasonable attorneys' fees incurred and
the cost of such alterations and brokerage fees, any reasonable attorney's fees
incurred ,and the cost of such alterations and repairs incurred by Landlord, and
the amount, if any, by which the rent reserved in this Lease for the period of
such re-letting (up to but not beyond the term of this Lease) exceeds the amount
agreed to be paid as rent for the premises for said period of such re-letting.
If Tenant has been credited with any rent to be received by such re-letting and
such rents shall not be promptly paid to Landlord by the new Tenant, such
deficiency shall be calculated and paid monthly by Tenant. No such re-entry or
taking possession of the premises by Landlord shall be construed as an election
by Landlord to terminate this Lease unless the termination thereof be decreed by
a court of competent jurisdiction or stated specifically by the landlord in
writing addressed to the tenant. Notwithstanding any such re-letting without
termination, Landlord may at any time thereafter elect to terminate this lease
for such previous breach. Should Landlord at any time terminate this lease for
any breach, in addition to any other remedy Landlord may have, Landlord may
recover from Tenant all damages Landlord may incur by reason of such breach,
including a the cost of recovering the premises including attorney's fees, court
costs, and storage charges and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in the remainder of the stated term, all of which amounts shall
be immediately due and payable from Tenant to Landlord. In no event, shall this
Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy insolvency or reorganization proceedings.
73
<PAGE>
26. ENFORCEMENT. In the event either party shall enforce the terms of the Lease
by suit or otherwise, the party at fault shall pay the costs and expenses
incident thereto, including, a reasonable attorney's fee.
27. FAILURE TO PERFORM COVENANT. Any failure on the part of either party to this
Lease to perform any obligation hereby shall be excused if such failure or delay
is caused by any strike, lockout, governmental restriction or any similar cause
beyond the control of the party so failing to perform, to the extent and for the
period that such continues.
28. RIGHTS OF SUCCESSORS AND ASSIGNS. The covenants and agreements contained in
this Lease will apply to, inure to the benefit of, and be binding upon the
parties hereto, their heirs, distributees, executors, administrators, legal
representatives, assigns, and upon their respective successors in interest,
except as expressly otherwise herein above provided.
29. TIME. Time is of the essence of this Lease and every term, covenant and
condition herein contained.
30. LIENS. Tenant agrees not to permit any lien for monies owing by Tenant to
remain against the leased premises for a period of more than thirty (30) days
following discovery of the same by Tenant; provided, however, that nothing
herein contained shall prevent Tenant, in good faith and for good cause, from
contesting in the courts the claim or claims of any person, firm or corporation
growing out of Tenant's operation of the demised premises or costs of
improvements by Tenant on the said premises, and the postponement of payment of
such claim or claims, until such contest shall finally be decided by the courts
shall not be a violation of this Agreement or any covenant thereof. Should any
such lien be filed and not released or discharged or action not commenced to
declare the same invalid within thirty (30) days after discovery of the same by
Tenant, Landlord may at Landlord's option (but without any obligation so to do)
pay and discharge such lien and may likewise pay and discharge any taxes,
assessments or other charges against the leased premise which Tenant is
obligated to pay and which may or might become a lien on said premises. Tenant
agrees to repay any sum so paid by Landlord upon demand therefore, as provided
for in paragraph 21 herein.
31. CONSTRUCTION OF LEASE. Words of gender used in this Lease shall be held to
include any other gender, and words in the singular number shall beheld to
include the plural when the sense requires.
32. PARAGRAPH HEADINGS. The paragraph heading as to the contents of particular
paragraphs herein, are inserted only for convenience and are in not way to be
construed as part of such paragraph or as a limitation on the scope of the
particular paragraph to which they refer.
33. NOTICES. It is agreed that the legal address of the parties for all notices
required or permitted to be given hereunder, or for purposes of billing,
process, correspondence, and any other legal purposes whatsoever, shall be
deemed sufficient if given by communication in writing by United States mail,
postage prepaid and certified and addressed as follows:
If to Landlord, at the following address: 51 East 400 South Suite 210
Salt Lake City, Utah 84111
If to Tenant, at the following address: Attention: Real Estate Department
P.0 Box 850306
Mesquite, TX 75185-0306
74
<PAGE>
34. COMMISSIONS. Landlord acknowledges the service of InterNet Properties, Inc,
as Real Estate Broker in this transaction and in consideration of the effort of
said Broker in obtaining Tenant herein, does hereby agree to pay, to said broker
for services rendered, commissions on the rental of the demised Premises. Said
Broker shall be entitled to his commissions regardless of whether or not the
Premises are taken as a result of the exercise of the power of eminent domain or
by an agreement in lieu thereof.
35. GOVERNING LAW. The terms of this agreement shall be governed by and
construed in accordance with the state of Utah.
36. DOCUMENTATION. The parties hereto agree to execute such additional
documentation as may be necessary or desirable to carry out the intent of this
Agreement.
37. CONTINGENCY REGARDING USE. This Lease is continent upon there being no
restrictions, covenants, agreements, laws, ordinances, rules or regulations,
which would prohibit Tenant form using the above described Premises for the
purposes described herein.
38. INDEMNIFICATION OF LANDLORD, Tenant, as a material part of the consideration
to be rendered to Landlord under this Lease, shall hold Landlord exempt and
harmless from any damage or injury to any person, or the goods, wares, and
merchandise of any person, arising from the use of the Premises by Tenant, or
from the failure of the Tenant to keep the Premises in good condition and
repair, as herein provided.
39. EMINENT DOMAIN. If at any time during the term of this Lease the entire
Premises or any part thereof shall be taken as a result of the exercise of the
power of eminent domain or by an agreement in lieu thereof, this Lease shall
terminate as to the part so taken as of the date possession is taken by the
condemning authority.
If all or any substantial portion of the Premises shall be taken, Landlord
may terminate this Lease at its option, by giving Tenant written notice of such
termination within thirty (30) days of such taking. If all or a Portion of the
Premises taken are so substantial that Tenant's use of the Premises is
substantially impaired, Tenant may terminate this Lease at its option, but
giving landlord written notice of such termination within thirty (30) days of
such taking. If neither party terminates this Lease pursuant this Article, this
Lease shall remain in full force and effect, except that the rent payable by
Tenant hereunder shall be reduced in the proportion that the area of the
Premises so taken bears to the total Premises.
Landlord shall be entitled to and Tenant hereby assigns to Landlord the
entire amount of any award in connection with such taking. Nothing in this
Article shall give Landlord any interest in or preclude Tenant from seeking, on
its own account, any award attributable to the taking of personal property or
trade fixtures belonging to Tenant, or for the interruption of Tenant's
business.
40. REPRESENTATION REGARDING AUTHORITY. The persons who have executed this
Agreement represent and warrant that they are duly authorized to execute this
Agreement in their individual or representative capacity as indicated.
41. ENTIRE AGREEMENT. This Lease Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior discussions,
understandings and agreements. This Agreement may not be altered or amended.
except by a subsequent written agreement executed by all of the parties hereto.
75
<PAGE>
42. REVIEW OF DOCUMENTS. The parties hereto represent that they have read and
understand the terms of this Lease Agreement, and that they have sought legal
counsel to the extent deemed necessary in order to protect their respective
interests.
43. KEYS & LOCKS. The Tenant shall not change locks or install other locks on
doors without the written consent of the Landlord who agrees not to unreasonably
withhold his consent. Tenant upon the termination of the Tenant shall deliver to
the Landlord all the keys to the offices, rooms and toilet rooms which have been
furnished to the Tenant.
44. AUCTION, FIRE OR BANKRUPTCY SALE. Tenant shall not conduct any auction nor
permit any fire or bankruptcy sale to be held on the Premises.
45. ESTOPPEL CERTIFICATE.
45.1 Landlord's Right to Estoppel Certificate. Tenant shall, within Fifteen
(15) days after Landlord's request, execute and deliver to Landlord a written
declaration in recordable form: (1) ratifying this Lease: (2)expressing the
Commencement Date and termination date hereof, (3) certifying that this Lease is
in full force and effect and :as not been assigned, modified, supplemented or
amended (except by such writing as shall be stated); (4) that all conditions
under this Lease to be performed by Landlord have been satisfied; (5) that there
are no defenses or offsets against the enforcement of this Lease by the
Landlord, or stating those claimed by Tenant; (6) the amount of advance rental,
if any,(or none if such is the case) paid by Tenant; (7),the date to which
rental has been paid; (8) the amount of security deposited with Landlord; and
(9) such other information as Landlord may reasonably request. Landlord's
mortgage lenders and/or purchasers shall be entitled to rely upon such
declaration.
45.2 Effect of Failure to Provide Estoppel Certificate. Tenant's failure to
furnish any Estoppel Certificate within fifteen (15) days after request,
therefore it shall be conclusively presumed that: (a) this Lease is in full
force and effect without modification in accordance with the terms set forth in
the request; (b) that there are no unusual breaches or defaults on the part of
the Landlord; and (c) no more than one (1) month's rent has been paid in
advance.
Landlord and Tenant have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
46. MISCELLANEOUS.
1. Landlord shall utilize a sum not to exceed Fifty Thousand Dollars ($50,000)
in the construction of Tenant's Premises as indicated on the attached
Exhibit "A" - Landlord's Scope of Work. Landlord shall complete the
construction in Tenant's Premises as specifically set forth in the attached
Landlord's Scope of Work, and any work that is not specifically indicated
therein shall be at Tenant's sole cost and expense. 1
2. Tenant retains the right, as long as rent is being paid, to close the
Premises for business without penalty from the Landlord.
3. Tenant shall have the "exclusive use" of their Premises.
Signed on 12/4/1998 By: /s/ John Afridi
--------------------------------
Its: Owner
Signed on 11/28/1998 By: /s/ Robert Austein
-----------------------------
Its: Vice President
CONSULT YOUR ATTORNEY - This document has been prepared for approval by your
attorney. No representation or recommendation is made as to the legal
sufficiency, legal effect, or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney.
76
<PAGE>
TENANT: RTO OPERATING, INC., D/B/A HOME CHOICE
PROPERTY: 1374 SOUTH STATE STREET
EXHIBIT "A"
LANDLORD'S SCOPE OF WORK
A. Subject to and following, completion of Landlord's Work as described below,
Landlord shall deliver the Premises and Tenant hereby agrees to accept the
Premises in that condition. Landlord shall utilize a sum not to exceed Fifty
Eight Thousand and 00/100 Dollars($58,500) to construct Tenant's Premises as
specifically indicated below. Landlord will provide Tenant a $50,000 allowance
for the improvements. The difference of $8,500 will be paid by the Tenant to the
Landlord at time of Lease execution. Landlord will use its best efforts to
complete the improvements in a good and workmanlike manner by January 20, 1999.
Any work that is not specifically indicated below shall be at Tenant's sole cost
and expense.
B. Tenant agrees, at its expense, to prepare detailed drawings showing extent of
such improvements, sign and submit said signed drawings to Landlord in
triplicate for review and approval. Drawings must be prepared by a licensed
architect or qualified designer.
In the event Landlord shall approve said drawings, which approval shall not be
unreasonably withheld, Landlord shall sign and return one (1) set of drawincs to
Tenant. Notwithstanding Landlord's review of such drawings and specifications,
and whether or not Landlord approves or disapproves such drawings and
specification, Landlord shall be responsible for compliance of such drawings and
specifications and of the construction with all applicable laws.
Landlord agrees, at its expense, to construct the Premises in accordance with
the detailed drawings.
Landlord agrees to complete said construction in accordance with all applicable
building codes and zoning ordinances of the City of Salt Lake.
Landlord agrees to provide Tenant, upon written request from Tenant, with copies
of all applicants building permits, health department permits, contractors'
license numbers, insurance certificates covering the work, and final lien
waivers evidencing Landlord's payment in full of all of Landlord's construction
costs.
C. Any sign to be placed on the Premises or on any part of the exterior of the
structure must be approved in writing by Landlord prior to the ordering of said
sign.
Landlord's Scope of Work:
1. Ceilings Install a new 2 X 4 grid ceiling system in 2/3 of premises.
2. Demolition Removal of existing sheetrock walls, steel
beams & deck in warehouse, existin- furnace, block
wall dividing the space, one bathroom.
3. Doors Install three new paint grade doors in sales area, install one
overhead panel door (no power).
77
<PAGE>
4. Drywall Fir out exterior block walls to 9 feet, install new partition
walls as per plan.
5. Electrical Install 28 outlets, power to sign, seven
light switches, 47 2x4 light fixtures, three power
poles, 6 new 8' strip lights, power to roof top unit,
power to new space heater location, one new panel
6. Flooring Install owner supplied carpet, owner supplied
rubber cove base, owner supplied VCT; minor floor
patching for new carpet (not to exceed $2,000).
7. Glass Install one new window in office.
8. HVAC Install one 7 ton high efficiency RTU to include
diffusers, duct work, etc, install gas piping to
relocated space heater and RTU, relocate one existing
space heater.
9. Block wall Removal of block will and addition of supports to be completed
as per engineered drawings.
10. Exclusions Supply of carpet, base, and VCT, cabinetry, floor outlets.
78
