LEASE
THIS LEASE is made and entered into this first day of November, 1998, by
and between XXXXX XXXX DEVELOPMENT CORPORATION, a Kentucky corporation, 0000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, hereinafter referred to as "Lessor"
or "Landlord", and THERMO VIEW INDUSTRIES, INC., a Delaware corporation, 0000
Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, hereinafter referred to as "Lessee" or
"Tenant".
WITNESSETH:
1. LEASED PREMISES
Lessor does hereby grant, demise and lease unto Lessee and Lessee does
hereby lease and Lessee does hereby lease and take from Lessor, for the term and
upon the terms and conditions set forth in this Lease, the Leased Premises,
being the entire office building of approximately 7,671 square feet located at
0000 Xxxx Xxxx in Louisville, Jefferson County, Kentucky.
2. POSSESSION
Lessor and Lessee acknowledge that the Lessee is currently in possession
of the Leased Premises and with the execution of this Lease, the Lessee accepts
possession of the Leased Premises in its present "as is" condition.
3. ORIGINAL AND EXTENDED TERMS
A. The "Original Term" of this Lease is and shall be for the
sixty (60) months, commencing November 1, 1998 (the "Commencement Date"), and
ending October 31, 2003, unless sooner terminated or extended as herein
provided.
B. Lessee shall have and is hereby granted two (2) consecutive
renewal options to extend the term of this Lease for additional terms of five
(5) years each beginning on the first day after the end of the Original Term,
and except for the rental, all the covenants and provisions of this Lease shall
apply to such extended terms. If Lessee shall elect to exercise said options,
it shall do so by giving Lessor written notice of such election not later than
one hundred eighty (180) days prior to the expiration of the Original Term or
extended term, as the case may be, of this Lease.
4. RENTAL
A. BASE RENT
From the Commencement Date the Lessee agrees to pay to Lessor a
base annual rent of One Hundred Three Thousand Five Hundred Fifty-Eight Dollars
and Fifty Cents ($103,558.50) in monthly installments of Eight Thousand Six
Hundred Twenty-Nine Dollars and Eighty-Seven Cents ($8,629.87) in advance on or
before the first day of each month. The base rent shall increase on January 1,
2000 and annually every January 1 thereafter during the term of this Lease by an
amount equal to three percent (3%) of the amount of the base annual rental of
the preceding year.
B. ADDITIONAL RENT
(i) TAXES - Lessee shall pay Lessor an amount equal to all
taxes applicable to the Leased Premises. "Taxes" shall have the meaning
specified in paragraph 18.H of this Lease.
(ii) OPERATING EXPENSES - Lessee shall pay lessor an amount
equal to Lessee's pro rata share of operating expenses. The term "Operating
Expenses" shall have the meaning specified in paragraph 18.I of this Lease.
(iii) MANNER OF PAYMENT - Lessee's share of taxes and operating
expenses shall be paid in the following manner:
1. Lessor shall reasonably estimate in advance the
amounts Lessee shall owe for taxes and operating
expenses for any full or partial calendar year of
the term of this Lease. Lessee shall pay such
estimated amounts, on a monthly basis, on or before
the first day of each calendar month, together with
Lessee's payment of base rent. Such estimate may be
reasonably adjusted from time to time by Lessor.
Lessee shall continue to pay the latest such
estimated amount until such time as Lessor adjusts
such estimate.
Beginning on the Commencement Date, the monthly
amount of estimated taxes and operating expenses
payable by Lessee to Lessor shall be the sum of Six
Hundred Thirty-Nine Dollars and Twenty-Five Cents
($639.25).
2. Following the end of each calendar year, Lessor
shall provide a statement prepared by Lessor (the
"Statement") to Lessee showing: (a) the amount of
actual taxes and operating expenses for such
calendar year, with a
listing of amounts for major categories of operating
expenses; and (b) any amount paid by Lessee towards
taxes and operating expenses during such calendar
year on an estimated basis.
3. Within thirty (30) days after receiving such
statement, Lessee shall pay any difference between
(a) any amount Lessee paid on an estimated basis for
such calendar year, and (b) Lessee's pro rata share
of actual taxes and operating expenses for such
calendar year.
4. After receiving the statement, Lessee shall commence
paying estimated payments towards Lessee's pro rata
share of taxes and operating expenses at a rate
reasonably estimated by Lessor in the statement.
5. If the statement shall show that Lessee's estimated
payments exceeded Lessee's pro rata share of actual
taxes and operating expenses for such calendar year,
Lessee shall receive a credit for the difference
against payments of rent next due. If the term
shall have expired and no further rent shall be due,
Lessee shall receive a refund of such difference.
6. Unless otherwise provided herein, Lessor expressly
reserves the right to reasonably change or alter,
from time to time, the manner, method, or timing of
the payment, and accounting practices relating to
the computation of taxes and operating expenses
required hereunder or any components thereof;
provided, however, no changes in the foregoing shall
be made without compensating adjustments to insure
that Lessee does not pay more solely because of the
change. In lieu of providing one such statement
covering taxes and operating expenses, Lessor may
provide separate statements covering, respectively,
taxes and operating expenses at the same or
different times. Lessor shall provide the statement
(or separate statements) within one hundred twenty
(120) days following the end of each calendar year,
or as soon thereafter as practicable, but no delay
by Lessor in providing the statement (or separate
statements) shall be deemed a default by Lessor nor
a waiver of Lessor's right to require payment of
Lessee's pro rata
share of actual or estimated taxes or operating
expenses. In no event shall a decrease in taxes or
operating expenses ever decrease the amount of base
rent required to be paid hereunder.
(iv) PRO RATION - If the term commences other than January 1 or
ends other than on December 31, Lessee's obligations to pay estimated and actual
amounts towards Lessee's pro rata share of taxes and operating expenses for such
first and final calendar years shall be pro rated to reflect the portion of such
years included in the term. Such pro ration shall be made by multiplying the
total estimated (or actual, as the case may be) taxes and operating expenses for
such calendar years by a fraction, the numerator of which shall be the number of
days from the term during such calendar year, and the denominator of which shall
be three hundred sixty-five (365). With respect to any such final year of the
term ending other than on December 31, it is expressly understood and agreed
that, within ninety (90) days before or after the expiration of the term, Lessor
may reasonably adjust its estimate of Lessee's pro rata share of taxes and
operating expenses (as pro rated for such partial calendar year), and Lessee
shall pay any such additional estimated amount within thirty (30) days after
written request therefor, subject to adjustment after the end of such calendar
year in the manner described above.
(v) LESSOR'S RECORDS - Lessor shall maintain adequate records
respecting taxes and operating expenses and determine the same in accordance
with sound accounting and management practices. Lessee shall have the right to
examine such records and make copies thereof, upon reasonable prior notice
during normal business hours at the place or places where such records are
normally kept by Lessors by sending such notice no later than sixty (60) days
following the furnishing of the statement (or if separate statements are
provided with respect to taxes and operating expenses, then within sixty (60)
days after furnishing each separate statement, with respect to the items
contained therein). Lessee shall have the right to take exception to matters
included in taxes and operating expenses, or Lessor's computation of Lessee's
pro rata share of either, by sending notice specifying such exception and the
reasons therefore to Lessor no later than ninety (90) days after Lessor makes
such records available for examination. Such statement (or separate statements)
shall be considered final and accepted by Lessee, except as to matters to which
exception is taken after examination of Lessor's records in the foregoing manner
and within the foregoing times. If Lessee takes exception to any matter
contained in the statement (or separate statements) as provided herein, Lessor
shall refer the matter to a mutually acceptable independent certified public
accountant whose operations are of national scope; his certification as to the
proper amount shall be final and conclusive as between Lessor and Lessee.
Lessee shall promptly pay the cost of such certification
unless such certification determines that the statement (or any separate
statement) was in error to Lessee's detriment. Pending resolution of any
such exceptions in the foregoing manner, Lessee shall continue paying
Lessee's pro rata share of taxes and operating expenses in the amounts
determined by Lessor, subject to adjustment, until any such exceptions are
resolved.
(vi) RENT AND OTHER CHARGES - Base rent and Lessee's pro rata
share of taxes and operating expenses, and any other amounts which Lessee is or
becomes obligated to pay Lessor under this Lease, are sometimes herein referred
to collectively as "rent", and all remedies applicable to the non-payment of
rent shall be applicable thereto. Rent shall be paid to the Lessor at any place
designated by Lessor, without any prior demand or notice therefore (except as
expressly provided herein) and shall, in all events, be paid without any
deductions, set-offs or counterclaims whatsoever, and without relief from any
valuation or appraisement laws.
5. TITLE AND QUIET ENJOYMENT
A. Lessor covenants that it has good title to the Leased
Premises, and that Lessor has the right to lease the same.
X. Xxxxxx agrees that Lessee, upon paying the fixed and
additional rent and performing the covenants of this Lease on its part to be
performed, shall, during the term of this Lease, peaceably and quietly have,
hold and enjoy the Leased Premises and all rights granted Lessee in and by this
Lease.
6. USE OF PREMISES
Lessee will use the Leased Premises for business office purposes only and
for no other purpose whatsoever. Lessee will not use the Leased Premises or
allow it to be used in any manner so as to violate any applicable laws, rules or
regulations of any governmental body or in such a manner as to increase the rate
of insurance on the Leased Premises.
7. HAZARDOUS SUBSTANCES
Lessee covenants and agrees not to permit any "hazardous material" to
be placed, held, located or disposed of upon, or released upon, under, or at
the Leased Premises, or any part thereof. For purposes of this Lease,
"hazardous material" means and includes any hazardous, toxic, or dangerous
waste, substance, or material defined as such in, or for the purpose of, the
Comprehensive Environmental Response, Compensation, and Liability Act, any
so-called "super fund" or "superlien" law, or any other Federal, State, or
local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter in
effect. If Lessee has knowledge of or receives any notice of (1) the
happening of any event involving the use, spill, discharge, or cleaning up of
any hazardous material (a "hazardous discharge") or (2) any complaint, order,
citation or notice with regard to air emissions, water discharges, notice
emissions, or any other environmental, health or safety matter affecting
Lessee, or the Leased Premises (an "environmental complaint") from any person
or entity, including, without limitation, the United States Environmental
Protection Agency ("EPA"), Lessee shall give immediate notice thereof to
Lessor disclosing full details of same. Lessee does and shall indemnify,
defend and hold Lessor harmless from all loss, costs, claims, damage, and
expense, including, but not limited to, reasonable attorney fees incurred by
Lessor as a result of any hazardous material on the Leased Premises during
the term of this Lease, such indemnification in favor of Lessor shall survive
the expiration or termination of this Lease and shall be unlimited in
duration. Provided, however, Lessee may, upon the expiration or termination
of this Lease, obtain an environmental survey, by a mutually acceptable
environmental engineer or engineering company, for the purpose of determining
the presence of hazardous material at the Leased Premises. In the event such
environmental survey verifies that hazardous material is absent from the
Leased Premises, then and in that event, the indemnification provisions of
this paragraph 7 shall terminate. The cost of any such environmental survey
or surveys shall be the sole responsibility of the Lessee.
8. INDEMNIFICATION
Lessee agrees to indemnify, defend and hold Lessor harmless from and
against all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs, charges, and expenses, including reasonable attorney
fees, which may be imposed upon or incurred by or asserted against Lessor or the
Leased Premises in respect of any use, non-use, or condition of the Leased
Premises created by Lessee or any permitted assignee or permitted subtenant of
Lessee or attributable to the use or manner of use of the Leased Premises by
Lessee or any permitted assignee or permitted subtenant of Lessee. In the event
that any action or proceeding shall be brought against Lessor by reason of any
claim referred to in this paragraph, Lessee, upon written notice from Lessor,
shall, at Lessee's sole cost and expense, resist or defend the same through
counsel selected by Lessee. In the event of any final judgment being rendered
against the Leased Premises or Lessor, as a result thereof and all periods to
appeal from any such judgment shall have expired, Lessee will promptly pay such
judgment, interest, and costs prior to any levy or execution thereon. This
provision shall survive the expiration or termination of the term of this Lease
for a period of five (5) years.
9. MAINTENANCE, REPAIR AND ALTERATIONS
Lessee shall not make any alterations or additions to the Leased Premises
without obtaining the prior written consent of the Lessor.
Lessee, at Lessee's expense, shall keep in good order, condition and
repair the Leased Premises and every part thereof, including but not limited to,
al plumbing, electrical, heating and cooling equipment, ventilation equipment,
interior walls, ceilings, windows, doors, plate glass and signs that are located
within or adjacent to the Leased Premises during the term of the Lease.
If Lessee fails to perform Lessee's obligations for maintenance, repairs,
and general upkeep, Lessor may at Lessee's expense put the same in good order,
condition and repair, and the costs thereof together with interest thereon at
the rate of twelve percent (12%) per annum shall be due and payable as
additional rent to Lessor together with Lessee's next rental installment.
Lessor shall arrange and pay for the general upkeep and maintenance of
all exterior common areas, including cleaning and replacement of all
landscaping, grass, parking areas (including snow and ice removal and parking
lot lighting costs), exterior walls, roof, gutters, storm drains, sidewalks and
exterior common area plumbing equipment.
Upon the termination of this Lease, all fixtures and all improvements of
a permanent nature shall become the sole property of the Lessor.
10. LIENS
Lessee agrees to forever indemnify and shall save the Lessor harmless on
the account of any claim or lien of mechanics, materialmen, laborers or others
in connection with any repairs, alterations, additions or changes made or
required to be made by Lessee and Lessee will, if required by Lessor, furnish
such waiver or waivers of liens and appropriate affidavits from the general
contractor or subcontractors as Lessor may require before starting any work in
connection with making such repairs, alterations, additions or changes.
11. UTILITIES
Lessee agrees to pay all electricity, gas, water, drainage, sewer charges
or other utilities furnished to or used in or about or assessed against the
Leased Premises during the term of this Lease.
12. INSURANCE
A. Lessor shall obtain and keep in force during the term of
this Lease a policy or policies of insurance covering loss or damage to the
Leased Premises in the amount of the full insurable value thereof, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, and special extended perils
(all risk).
B. Lessee shall, at Lessee's expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public liability
insurance insuring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or maintenance of the Leased Premises and all areas
appurtenant thereof. Such insurance shall be in an amount not less than One
Million Dollars ($1,000,000.00) for injury or death of one (1) person in any one
(1) accident or occurrence and in an amount of not less than One Million Dollars
($1,000,000.00) for injury or death of more than one (1) person in any one (1)
accident or occurrence. Such insurance shall further insure Lessor and Lessee
against liability for property damage of at least Five Hundred Thousand Dollars
($500,000.00). If Lessee shall fail to procure and maintain said insurance,
Lessor may, but shall not be required to, procure and maintain the same but at
Lessee's expense.
C. Lessee shall at its own expense keep its personal property
located on, or any improvements made by it to the Leased Premises and will cause
any property of others stored in or located on said premises, to be insured with
an insurance company or companies satisfactory to Lessor, licensed to do
business in Kentucky, against fire and such hazards as are included within
extended coverage and vandalism, in the amount equal to the full insurance value
thereof.
D. Each policy of insurance required to be maintained by
Lessee under the terms of this Lease shall name Lessor as an additional insured
and shall provide that the same may not be canceled or materially changed
without at least thirty (30) days prior written notice to Lessor.
E. The Lessee shall furnish to the Lessor certificates or
copies of all policies of insurance required under the provisions of this Lease.
X. Xxxxxx and Lessee each waives all rights of subrogation
against each other for all claims to the extent of insurance coverage under the
terms of this Lease. Further, Lessor and Lessee will cause all policies of
insurance required to be maintained under this Lease to contain waivers of
subrogation.
G. The Lessee and the Lessor shall cooperate with each other
in connection with collection of any insurance monies that may be due in the
event of a loss and the Lessee and Lessor shall execute and deliver to the
insurance companies such proof of loss or other instruments which may be
required for the purpose of obtaining a recovery of any insurance money.
13. ASSIGNING AND SUBLETTING
Lessee shall not assign, mortgage, pledge, encumber or sublet this Lease
or its leasehold interest in the Leased Premises without obtaining the prior
written consent of the Lessor, which consent will not be unreasonably withheld.
14. SUBORDINATION AND ESTOPPEL CERTIFICATES
Lessee accepts this lease subject and subordinate to all mortgages which
may now or hereafter be a lien upon or affecting the land and building which are
the Leased Premises. Lessee shall execute and deliver to the Lessor, within
fifteen (15) days after request, an estoppel certificate addressing such matters
as may be reasonably requested by an existing or prospective mortgagee or a
prospective transferee of the Leased Premises. Further, Lessee shall, within
fifteen (15) days after request, and provided Lessee shall not become liable,
execute any instrument, release or other document, that may be required by any
mortgagee or mortgagor for the purpose of subjecting and subordinating this
Lease to the lien of any such mortgage or mortgages, and the failure of Lessee
to execute any such instruments, releases, estoppel certificates or documents
shall constitute a default hereunder.
15. LESSOR'S RIGHT OF ACCESS AND ENTRY
Lessor and its representatives shall have free access to and the right to
enter the Leased Premises during all reasonable hours to examine the same or to
make such repairs or alterations as may be necessary for the safety and
preservation of the Leased Premises, but without any obligation to make such
repairs, and to exhibit the Leased Premises to third parties for the purpose of
sale.
16. REMEDIES OF LESSOR IN EVENT OF DEFAULT BY LESSEE
A. DEFAULT - The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Leased Premises by
Lessee, where such abandonment continues for ten (10) days.
(b) The failure by Lessee to make any payment of rent or other
payment required to be made by Lessee hereunder, within five (5) days of written
notification by Lessor.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of the Lease to be observed or performed by
Lessee, other than described in the paragraph (b) above, where such failure
shall continue for a period of fifteen (15) days after written notice thereof
from Lessor to Lessee; provided, however, that if the nature of the Lessee's
default is such that more than fifteen (15) days are reasonably required for its
cure, then Lessee has commenced such cure within said fifteen (15) days and
thereafter diligently prosecutes such cure to completion.
(d) (1) The making by Lessee of any general assignment, or
general arrangement for the benefit of creditors; (2) the filing by or against
Lessee of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, the same is dismissed within sixty
(60) days); (3) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Leased Premises or of
Lessee's interest in this Lease, where possession is not restored to Lessee
within fifteen (15) days; or (4) the attachment, execution, or other judicial
seizure of substantially all of Lessee's assets located at the Leased Premises
or of Lessee's interest in this Lease.
B. REMEDIES - In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such default
or breach;
(a) Terminate Lessee's right to possession of the Leased
Premises by any lawful means, in which case this Lease shall terminate and
Lessee shall immediately surrender possession of the Leased Premises to Lessor.
In such event, Lessor shall by reason of Lessee's default be entitled to recover
from Lessee all damages incurred by Lessor including, but not limited to the
cost of recovering possession of the Leased Premises, expenses of reletting,
including necessary repairs, reasonable attorney's fees, and rents lost. Upon
Lessor's reletting the Leased Premises, Lessee shall become and thereafter be
liable and indebted to Lessor for, and upon demand shall promptly pay to Lessor,
the differences between the amount of the rent and additional rent herein
specified and the amount of rent and additional rent which shall be collected
and received from the Leased Premises for each month during the residue of the
then current term of this Lease. Unpaid installments of rent and other sums due
Lessor shall bear interest from the date due at the rate of twelve percent (12%)
per annum.
(b) The rights provided for in this paragraph are cumulative to
and not restrictive of any other and further rights provided by law; and no
delay or failure by Lessor to exercise any right herein or by law provided, or
to insist upon strict compliance by Lessee with the terms and provisions hereof,
shall
constitute a waiver of Lessor's right thereafter to exercise and avail itself
of said right or thereafter to demand strict compliance by Lessee with the
terms and provisions hereof.
17. DAMAGE AND DESTRUCTION
In the event of the total destruction of the building which comprises a
portion of the Leased Premises, this Lese shall automatically terminate.
If the building is partially damaged during the term of this Lease, the
rents payable hereunder shall be abated in proportion to which Lessee's use is
impaired. In such event and within sixty (60) days from the date of such
partial damage, Lessor shall commence to restore the Leased Premises and
thereafter diligently complete such restoration. Such repairs shall
substantially restore the condition of the Leased Premises prior to the
casualty, except for modifications required by zoning and building codes and
other laws, and except that Lessor shall not be required to repair or replace
any of Lessee's personal property, fixtures or improvements. Lessor shall not
be liable for any inconvenience or annoyance to Lessee, or injury to Lessee's
business resulting in any way from such damage or repair thereof, except Lessor
shall allow Lessee a proportionate abatement of rent during the time and to the
extent the Leased Premises are unfit for occupancy, and not occupied by Lessee
as a result of such damages. Provided, however, the obligation of Lessor to
repair and restore the Leased Premises, shall not apply in the event the damage
or destruction to the Leased Premises is not covered by Lessor's insurance
policies under the insurance coverage maintained by Lessor under this Lease.
18. GENERAL PROVISIONS AND DEFINITIONS
A. LESSOR'S LIABILITY
The term "Lessor" as used herein shall mean only the owner
or owners at the time in question of the Lessee's interest in this Lease.
Lessor herein named (and in case of any subsequent transfers the then grantor)
upon transfer of title of said Leased Premises, shall be relieved from all
obligations as Lessor thereafter.
B. SEVERABILITY
The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
C. INTEREST ON PAST DUE OBLIGATIONS
Interest on any amount due Lessor which is in arrears shall
bear interest at the rate of twelve percent (12%)
per annum. Payment of such interest shall not excuse or cure any default by
Lessee under this Lease.
D. BINDING EFFECT
Subject to any restrictions of assignment or subletting by
Lessee, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the
Commonwealth of Kentucky.
E. ATTORNEY'S FEES
If Lessor or Lessee brings action to enforce the terms
herein or declare rights hereunder, and prevails, it shall be entitled to
recover its reasonable attorney's fees to be paid by the losing party.
F. SIGNS
Subject to Lessor's requirements, Lessee shall, at its own
costs and expense, install an identification sign that has first been approved
by Lessor in writing at a place or places designated by Lessor. Lessee shall
continuously maintain any such sign in good condition and repair. Other than
such permitted signs, Lessee shall not place or install or suffer to be placed
or installed any advertising medium, flag, banner, or the like upon or outside
the Leased Premises. Lessor shall have the right, without liability and with or
without notice to Lessee, to remove any items installed by Lessee in violation
of this paragraph and to charge Lessee for the reasonable cost of such removal
and/or any repairs necessitated thereby.
G. LEASE MEMORANDUM
At the request of the Lessor, Lessee shall execute a Memorandum of
Lease or short form lease in recordable form.
H. TAXES
"Taxes" shall mean all federal, state, county, or local
governmental or municipal taxes, fees, charges, or other impositions of every
kind and nature, whether general, special, ordinary, or extraordinary, including
without limitation, real estate taxes, general and special assessments, sewer
and water rents, rates and charges, transit taxes, taxes based upon the receipt
of rent, including gross receipts or sales taxes applicable to the receipt of
rent, personal property taxes imposed upon the fixtures, machinery, equipment,
apparatus, systems and equipment, appurtenances, furniture, and other personal
property used in connection with the Leased Premises which Lessor shall pay
during any calendar year, any portion of which occurs during the term of this
Lease (without regard to any different fiscal year used by such government or
municipal authority) because of or in connection with the ownership,
leasing, and operation of the Leased Premises. Notwithstanding the
foregoing, there shall be excluded from taxes all excess profits taxes,
franchise taxes, gift taxes, capital stock taxes, inheritance and succession
taxes, estate taxes, federal, state, and local income taxes, and other taxes
to the extent applicable to Lessor's general or net income (as opposed to
rents, receipts, or income attributable to operations at the Leased
Premises). Any expenses incurred by Lessor in attempting to protest, reduce,
or minimize taxes shall be included in taxes in the calendar year such
expenses are paid. If taxes for any period shall be increased after payment
thereof by Lessor, for any reason including, without limitation, error or
reassessment by applicable governmental or municipal authorities. Lessee
shall pay Lessor, upon demand, Lessee's pro rata share of such increased
taxes. Lessor shall pay all taxes in a timely manner so as to benefit from
any discount which is available for early payment.
I. OPERATING EXPENSES
"Operating Expenses" shall mean all expenses, costs, and
amounts (other than taxes) of every kind and nature which Lessor shall pay
during any calendar year, any portion of which occurs during the term of the
Lease, because of or in connection with the ownership, management, repair,
replacement, restoration, and operation of the Leased Premises, including,
without limitation, any amounts paid for the following items:
(1) Utilities for the Leased Premises, including, but
not limited to, electricity, power, gas, steam, oil or other fuel, water, sewer,
lighting, heating, air conditioning and ventilating;
(2) Permits, licenses, and certificates necessary to
operate, manage, and lease the Leased Premises;
(3) Insurance applicable to the Leased Premises, not
limited to the amount of coverage Lessor is required to provide under this
Lease;
(4) Supplies, tools, equipment, and materials used in
the operation, repair and maintenance of the Leased Property;
(5) Accounting, legal, and professional services
(including inspection and consultation);
(6) Any equipment rental agreements or management
agreements (including the cost of any customary management fee and the fair
rental value of any office space provided thereunder), provided such is
reasonable and customary in the City of Louisville, Kentucky;
(7) Wages, salaries, and other compensation and benefits
of all persons engaged in the operation, maintenance, or security of the Leased
Premises, and employer's social security taxes, unemployment taxes, or
insurance, and any other taxes which may be levied on such wages, salaries,
compensation, and benefits; and
(8) Operation, repair, maintenance, and replacement of
all systems and equipment and components thereof, janitorial service, alarm and
security service, window cleaning, trash removal, cleaning of walks, parking
facilities, and building walls, removal of ice and snow, replacement of wall and
floor coverings, ceiling tiles and fixtures in common or public areas or
facilities, maintenance and replacement of shrubs, trees, grass, sod and other
landscaped items, irrigation systems, drainage facilities, fences, curbs, and
walkways, repaving and restriping parking facilities, repairs to roof and
reroofing.
19. NON-WAIVER
No delay or omission by either party hereto to exercise any right or
power accruing upon any non-compliance or default by the other party with
respect to any of the terms hereof shall impair any such right or power or to be
construed to be a waiver thereof. Every such right and power may be exercised
at any time during the continuance of such default. It is further agreed that a
waiver by either of the parties hereto of any of the covenants and agreements
hereof to be performed by the other shall not be construed to be a waiver of any
succeeding breach thereof or of any other agreements or covenants herein
contained.
20. ENTIRE AGREEMENT
This Lease contains the entire agreement of the parties and no
representations, inducements, promises or agreements, oral or otherwise, not
embodied in this Lease shall be of any force and effect.
21. GOVERNING LAW
This Lease has been executed and delivered in the State of Kentucky and
all the terms and provisions hereof and the rights and obligations of the
parties hereto shall be construed and enforced in accordance with the laws
thereof.
22. PARAGRAPH HEADINGS
The paragraph headings in this Lease are for convenience only and are not
a part of this Lease and do not in any way limit or amplify the terms and
provisions hereof and in no way shall be held to explain, modify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
23. SURRENDER OF POSSESSION AND HOLDING OVER
Lessee will surrender possession of the Leased Premises to Lessor at the
expiration of or upon any prior termination of this Lease in a broom-clean
condition and the exterior area surrounding the Leased Premises free of all
trash and debris. Failure by Lessee to so surrender said premises and any
holding over by Lessee shall not operate, except by express mutual agreement
between the parties hereto, to extend or renew this lease, and in the absence of
such agreement, either party may thereafter terminate such occupancy at the end
of any calendar month by first giving to the other party at least thirty (30)
days notice of its intention to do so.
24. EMINENT DOMAIN
If the whole or any part of the Leased Premises shall be taken by power
of eminent domain or condemned by any competent authority for any public or
quasi-public use or purpose, or if any adjacent property or street shall be so
taken, condemned, reconfigured, or vacated by such authority in such manner as
to require the use, reconstruction, or remodeling of any part of the Leased
Premises, or if Lessor shall grant a deed or other instrument in lieu of such
taking by eminent domain or condemnation, Lessor shall have the option to
terminate this Lease on thirty (30) days' notice. Lessor shall be entitled to
receive the entire award or payment in connection therewith without any payment
to Lessee and Lessee hereby irrevocably assigns to Lessor its interest in such
award or payment, except that Lessee shall have the right to file any separate
claim available to Lessee for any taking of Lessee's personal property and
fixtures belonging to Lessee and removable by Lessee upon expiration of the
term, and for moving expenses (so long as such claim does not diminish the award
available to Lessor, and such claim is payable separately to Lessee). All rent
shall be apportioned as of the date of such termination, or the date of such
taking, whichever shall first occur. If any part of the Leased Premises shall
be taken and this Lease shall not be so terminated, the rent shall be
proportionately abated.
If less than the whole or substantially the whole of the Leased Premises
be condemned or taken, and in the reasonable exercise of Lessee's business
judgment, the area of the Leased Premises remaining after the condemnation is
insufficient for Lessee to conduct its business in an efficient businesslike
manner, Lessee may, at its option, terminate this Lease as of the date of the
taking of possession for such use or purpose by notifying Lessor in writing of
such termination.
25. NOTICE PROVISIONS
Notices shall be deemed property delivered if sent by United States mail,
certified with return receipt requested. Such notices shall be sent to Lessor
at 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, and to Lessee at 0000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, or to such other addresses as requested by the parties hereto
having given proper prior notice.
IN WITNESS WHEREOF, the Lessor and Lessee have executed this Lease
effective as of the day and year first above written, but actually on the dates
indicated below.
LESSOR:
XXXXX XXXX DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Title: President
------------------------------------
LESSEE:
THERMO VIEW INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: President
------------------------------------
SUBSCRIBED AND SWORN TO before me by ________________________ as
_____________________ of Xxxxx Xxxx Development Corporation on this 6th day of
July, 1999.
My commission expires: 6-16-2003.
/s/ Xxx Flesk
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Notary Public - State at Large - KY
SUBSCRIBED AND SWORN TO before me by Xxxxxx X. Xxxxxxxx as President of
Thermo View Industries, Inc. on this 16th day of June, 1999.
My commission expires: September 11, 1999.
/s/ Xxxxxxxx X. Xxxxxxx
------------------------------------------
Notary Public - State at Large - KY
