LEASE
THIS LEASE is entered into on April 29, 1998, by and between LBD,
L.L.C., 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Landlord") and ROLOX,
INC., f/k/a ThermoView Merger Corp., c/o ThermoView Industries, Inc., 0000
Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx
("Tenant").
In consideration of the mutual covenants hereinafter contained, and
each act performed hereunder by either of the parties, Landlord and Tenant
agree as follows:
ARTICLE 1
DEMISED PREMISES
Section 1.1 Demised Premises. Landlord hereby lets and demises
to Tenant, and Tenant hereby leases from Landlord that portion of the real
property, described in Exhibit A attached hereto and by reference made a part
hereof (the "Demised Premises").
ARTICLE 2
TERM AND RENEWALS
Section 2.1 Demised Term. The "Demised Term" of this Lease shall
be for a period of 3 years beginning on May 1, 1998, and ending on April 30,
2001.
Section 2.2 Holding Over. In the event Tenant remains in
possession of the Demised Premises after the expiration of the Demised Term
and without the execution of a new lease, it shall be deemed to be occupying
the Demised Premises as a tenant from month to month, subject to all
conditions, provisions and obligations of this Lease insofar as the same are
applicable to a month-to-month tenancy.
ARTICLE 3
RENT
Section 3.1 Rental During Demised Term. Tenant shall pay to
Landlord throughout the Demised Term rental as follows: $61,200 for each
year of the Demised Term payable on the first day of each month in advance in
equal monthly installments of $5,100 beginning on September 1, 1998 through
the end of the Demised Term, assuming that Tenant takes possession on
September 1, 1998. From the beginning of the Demised Term through August 31,
1998, Tenant shall pay rent in the amount of $2,400 per month. It is
acknowledged that possession of the Demised Premises can not be granted to
tenant at the time of execution of this instrument.
Notwithstanding the foregoing, if Tenant is able to take possession of the
Demised Premises prior to September 1, 1998, the rent shall be adjusted to
$5,100 per month at that time.
Section 3.2 Payments. Rental checks are to be made payable to
Landlord and mailed to Landlord at the address shown in the caption of this
Lease, or otherwise as designated by Landlord from time to time in a written
instrument delivered to Tenant.
ARTICLE 4
TAXES
Section 4.1 Real Estate Taxes.
(A) As additional rental hereunder Tenant shall
pay and discharge as they become due, all taxes and assessments on the
Demised Premises.
(B) Tenant shall have the right at its own
expense to challenge any tax or assessment; such challenge will not, however,
relieve Tenant's obligation to pay such taxes promptly when due. If such
challenge results in a reduction of taxes or assessments, Tenant shall be
entitled to a refund of such reduction within fourteen (14) days of the date
such refund amount is received by Landlord. If the challenge results in
reduction of a xxxx prior to payment by Landlord, Tenant shall not be
entitled to a refund, but shall have its xxxx appropriately reduced.
(C) If this Lease expires or terminates before a
tax or assessment xxxx is rendered for the year in which such expiration or
termination occurs, Tenant shall pay to Landlord on January 1 of such year of
expiration or termination the proportionate amount of the anticipated tax for
the entire calendar year. The said proportional amount shall be computed as
a fraction the numerator of which shall be the number of months of the lease
term within the last calendar year and denominator of which shall be twelve
(12).
ARTICLE 5
USE OF DEMISED PREMISES
Section 5.1 Use. Tenant shall not use or allow the Demised
Premises to be used for any unlawful, disreputable or immoral purpose or in
any way that will injure the reputation of the Demised Premises.
2
ARTICLE 6
UTILITY SERVICES
Section 6.1 Payment by Tenant. Payment for all utilities used
upon or in connection with the Demised Premises shall be made by Tenant.
Such utility services shall include, but not be limited to, water,
electricity, gas and trash collection.
ARTICLE 7
MAINTENANCE
Section 7.1 Landlord's Maintenance. Tenant shall keep, maintain and
make replacements within the interior and exterior of the Demised Premises in
good condition and repair. Provided, however, should the aggregate amount of
expenses for the repair or replacement to equipment (including but not limited
to electrical systems, lights, plumbing, heating and cooling systems, and all
similar equipment) during the Demised Term exceed $10,000, then Landlord and
Tenant hereby agree to each pay one-half of such additional expenses.
ARTICLE 8
ALTERATIONS
Section 8.1 Alterations. Tenant shall not alter or add to any part
of the Demised Premises except with Landlord's prior consent, such consent not
to be unreasonably withheld. Unless otherwise specifically provided in writing,
any such alteration or addition shall remain in the Demised Premises upon the
expiration or termination of this Lease, free of any claim by Tenant. Tenant
shall furnish evidence to Landlord that all claims for labor and materials
furnished for such remodeling, alteration or addition have been paid or provided
for. Should Tenant fail to pay for such labor or materials, Landlord may pay
such amount and add the cost thereof to the rental provided for herein.
ARTICLE 9
TRADE FIXTURES
Section 9.1 Trade Fixtures. All fixtures, equipment and other
personal property placed in or upon the Demised Premises by Tenant shall remain
property of Tenant and Tenant shall have the right to remove such property at
any time, providing that any damage caused by such removal shall be repaired at
Tenant's expense.
3
ARTICLE 10
INSURANCE
Section 10.1 Liability Insurance. Tenant shall, during the Demised
Term, keep in force and effect a policy of public liability and property damage
insurance with respect to the Demised Premises operated by Tenant. Tenant shall
name Landlord as an additional insured.
Section 10.2 Casualty and Other Insurance. Tenant shall carry during
the Demised Term fire and extended coverage insurance on the Demised Premises.
Tenant shall provide Landlord with certificates of insurance showing that all
insurance is effective, payable to Landlord and Tenant (as their respective
interests appear) and not cancelable without ten (10) days' prior written notice
to Landlord. Tenant shall name Landlord as an additional insured.
Section 10.3 Subrogation. The fire and extended coverage insurance
policies kept and maintained by the parties shall be endorsed to provide for or
shall otherwise contain a waiver of subrogation by the insurance company or
companies except for intentional or grossly negligent acts of the parties, it
being the intent of the parties that in the event of loss caused by ordinary
negligence, the parties agree to look solely to the proceeds of insurance
policies.
ARTICLE 11
DEFAULT AND REMEDIES
Section 11.1 Default by Tenant. In event of any failure of Tenant to
pay any rent due hereunder within ten (10) days after the same shall be due, or
any failure to perform any other of the terms or conditions of this Lease to be
observed or performed by Tenant for more than thirty (30) days after notice of
such default shall have been given to Tenant, then Landlord, may terminate this
Lease.
Section 11.2 Default by Landlord. If Landlord shall fail to promptly
keep and perform any of its representations and warranties strictly in
accordance with the terms of this Lease and shall continue in default for a
period of thirty (30) days after written notice thereof to Landlord, then Tenant
may, at its sole option and discretion, exercise any or all of the following
remedies:
(A) declare this Lease ended and vacate the Demised
Premises without incurring additional rent or other costs associated with the
lease of the Demised Premises; or
(B) remain in the Demised Premises and withhold rent
and other costs due Landlord until such time as Landlord cures such default; or
(C) perform any Landlord obligation, and all
expenses (including without limitation, reasonable attorney fees) incurred by
Tenant in performing such obligation shall be deemed an obligation of Landlord
to Tenant and shall be paid to Tenant on demand.
4
ARTICLE 12
DAMAGE
Section 12.1 Damage to the Demised Premises. In the event the
Demised Premises are damaged by fire, explosion or any other casualty, the
damage shall promptly be repaired by Landlord at Landlord's expense, provided
(i) no Event of Default shall exist at the time of such casualty, (ii)
sufficient insurance proceeds shall be made available in a timely manner to
Landlord to pay for such reconstruction, and (iii) Tenant shall have in writing
agreed to occupy the Demised Premises after reconstruction for the full
remaining portion of the Demised Term. If any of the requirements in (i) -
(iii) of the preceding sentence shall not be satisfied, Landlord may in its sole
discretion, terminate the Lease and be under no further obligation to Tenant.
In no event shall Landlord be required to repair or replace Tenant's stock in
trade, fixtures, furniture, furnishings, floor coverings and equipment. If the
casualty, repairing, or rebuilding shall render the Demised Premises
untenantable, in whole or in part, and the damage shall not have been due to the
default or neglect of Tenant, then a proportionate abatement of the rent shall
be allowed from the date when the damage occurred until the date Landlord
completes its work, said proportion to be computed on the basis of the relation
which the gross square foot area of the space rendered untenantable bears to the
floor space of the Demised Premises. Tenant shall have the option to terminate
the Lease if the Demised Premises cannot be fully restored within six (6) months
of the date of damage.
ARTICLE 13
CONDEMNATION
Section 13.1 Condemnation. If the Demised Premises or any part
thereof shall be acquired by any authority having power of eminent domain,
whether directly pursuant to such power or under threat of use of such power,
either Landlord or Tenant shall have the option to terminate this Lease as of
the date when possession is taken by the acquiring authority. Any award or
settlement for damages or sale proceeds shall be distributed to the parties in
proportion to the value of their respective interests in the Demised Premises.
In such taking, condemnation, change of grade, limitation of access or like
proceeding, the parties thereto shall represent their own interests and shall
present and prosecute their own claims for damages and neither party shall be
liable to the other for any recovery obtained.
Section 13.2 Tenant's Option. In the event neither party exercises
its option to terminate as aforesaid, Tenant shall be entitled to a reduction of
rental payments in proportion to the amount by which the gross area of the
Demised Premises is reduced by such taking or loss and such reduction shall be
retroactive to the date when Tenant was deprived of the full and complete use of
all the Demised Premises.
5
ARTICLE 14
INSPECTION AND ACCESS
Section 14.1 Inspection and Access. Landlord or its agents may,
during normal business hours and with 24 hours prior notice, inspect the Demised
Premises and make such repairs thereto as Landlord deems necessary for its
preservation. Any repairs made by Landlord because of Tenant's breach of
covenant to repair or maintain shall be at Tenant's expense. In case of an
emergency, Landlord shall have access to the Demised Premises at any time for
the purpose of inspecting such facilities or of making such repairs or changes
thereto as Landlord deems necessary.
ARTICLE 15
ASSIGNMENT, SUBLEASE OR LICENSE
Section 15.1 Assignment, Sublease or License. Tenant shall not
assign or sublease the Demised Premises without first obtaining the written
consent of Landlord.
ARTICLE 16
NOTICE
Section 16.1 Notices and Payments. All notices, consents, waivers,
releases, certifications, statements, requests, payments, and other
communications of any kind hereunder shall be in writing and shall be addressed
and sent to the parties at their addresses shown in the caption of this Lease,
subject to thirty (30) days' notice of change. Such communications shall be
effective when deposited in United States Mail, postage prepaid, unless
otherwise agreed or provided herein.
ARTICLE 17
SIGNS
Section 17.1 Signs. Tenant may not erect, maintain, permit and
remove any signs on or about the Demised Premises without the consent of
Landlord, such consent not to be unreasonably withheld.
6
ARTICLE 18
TIME OF ESSENCE
Section 18.1 Time of Essence. Time shall be deemed of the essence in
all matters pertaining to this Lease.
ARTICLE 19
INDEMNIFICATION
Section 19.1 Indemnification by Tenant. Except as otherwise
provided in Article 10, Tenant covenants at all times to save the Landlord
harmless from all loss, cost or damage which may occur or be claimed with
respect to any person or persons, corporation, property or chattels on or
about the Demised Premises, or to the property itself, resulting from the
intentional or grossly negligent acts of Tenant, its invitees, servants and
agents.
Section 19.2 Indemnification by Landlord. Except as otherwise
provided in Article 10, Landlord covenants at all times to save the Tenant
harmless from all loss, cost or damage which may occur or be claimed with
respect to any person or persons, corporation, property or chattels on or
about the Demised Premises, or to the property itself, resulting from the
intentional or grossly negligent acts of Landlord, its invitees, servants and
agents.
ARTICLE 20
SUBORDINATION
Section 20.1 Priority. It is understood that this Lease is
subject and subordinate to any first mortgage and advances thereon and to all
renewals, extensions, modifications, consolidations, participations,
replacements, and amendments of such mortgage.
Section 20.2 Nondisturbance. Provided, however, that so long as
Tenant shall not be in default under the terms of this Lease, said Lease
shall not be terminated nor shall any of Tenant's rights and obligations
under this Lease be disturbed by any steps or proceedings taken by any
mortgagee, lessor or other holder of a right of record effecting the real
property in the exercise of any of its rights under the instrument wherein
the right is authorized.
ARTICLE 21
MISCELLANEOUS
7
Section 21.1 Covenant of Title. Landlord covenants, represents
and warrants that it has full right and power to execute and perform its
obligations under this Lease and to grant the estate demised herein and that
Tenant, on payment of the rent herein reserved and performance of the
covenants and agreements herein contained, shall peaceably and quietly have,
hold and enjoy the Demised Premises during the Demised Term without
molestation or hindrance by any person, and, if at any time during the
Demised Term, the title of Landlord shall fail or it shall be discovered that
its title does not enable Landlord to grant the term hereby demised, or
action is taken by governmental authority which prevents Tenant from using
the Demised Premises for the use contemplated by it, Tenant shall have the
option at Landlord's expense to correct or contest such defect or action, or
to annul and void this Lease with full reservation of its rights to damages,
if any, against Landlord.
Section 21.2 Waiver. No waiver of any covenant or condition or
the breach of any covenant or condition of this Lease shall be deemed to
constitute a waiver of subsequent breach of such covenant or condition, nor
to justify or authorize the nonobservance on any other occasion of the same
or of any other covenant or condition hereof, nor shall the acceptance of
rent by Landlord at any time when Tenant is in default under any covenant or
condition hereof be construed as a waiver of such default, nor shall any
waiver or indulgence granted by Landlord to Tenant be taken as an estoppel
against Landlord during the continuance of such default.
Section 21.3 Remedies Cumulative. The remedies of Landlord and
Tenant shall be cumulative, and no one of them shall be construed as
exclusive of any other or of any remedy provided by law.
Section 21.4 Relationship of Parties. Nothing herein contained
shall be deemed or construed by the parties hereto, nor by any third party,
as creating the relationship of principal and agent, or of partnership, or of
joint venture, between the parties hereto, it being agreed that neither the
method of computation of rents nor any other provisions named herein, nor any
acts of the parties herein, shall be deemed to create any relationship
between the parties hereto other than the relationship of Landlord and Tenant.
Section 21.5 Governmental Regulation. Landlord and Tenant shall
each comply with all of the requirements of all county, municipal, state,
federal and other applicable governmental authorities, pertaining to the
Demised Premises.
Section 21.6 Construction. Whenever a word appears herein in its
singular form, such word shall include the plural; and the neuter gender
shall include the masculine and feminine genders. This Lease shall be
construed without reference to titles of Articles, Sections or Clauses, which
are inserted for reference only.
Section 21.7 Enjoyment and Relocation. Landlord covenants that it
has full right and power to execute and perform this Lease and to grant the
estate hereby conveyed and, if Tenant fully performs its duties under this
Lease, that Tenant shall throughout the term hereof have the peaceable and
quiet enjoyment and possession of the Demised Premises without interference
from Landlord or from anyone lawfully claiming through Landlord.
8
Section 21.8 Successors. This Lease shall inure to the benefit of
and be binding upon the parties hereto, their respective heirs, personal
representatives, successors and assigns.
Section 21.9 Attornment. Tenant shall, in the event of any sale,
assignment, or foreclosure of Landlord's rights in the Demised Premises,
attorn to and recognize such assignee or purchaser thereof as the Landlord
under this Lease.
Section 21.10 Entirety, Severability and Law. This Lease shall
constitute the entire agreement between the parties and shall not be modified
in any manner except by written instrument executed by the parties. The
invalidity or unperformability of any provision hereof shall not affect or
impair any other provision hereof. Each term and provision hereof shall be
performed and enforced to the fullest extent permitted by and in accordance
with Kansas law.
Section 21.11 Consent. Whenever it is necessary under the terms of
the Lease for either party to obtain the consent or approval of the other
party, such consent or approval shall not be unreasonably withheld.
Section 21.12 Law of Kansas. This Lease shall be governed by the
laws of the State of Kansas.
To indicate their understanding of and consent to the foregoing
terms, the parties have executed this Lease on the date first above written.
LANDLORD:
LBD, L.L.C.
By: /s/ Xxxxxx X. Xxx
----------------------------------
Xxxxxx X. Xxx, Member
TENANT:
ROLOX, INC., f/k/a Thermoview Merger Corp.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx, President
9
EXHIBIT A
Property located at 0000 X. Xxxxx Xxxx, Xxxxxxx, Xxxxxx.
10
