LEASE
THIS LEASE is entered into on April 29, 1998, by and between L & D
PARTNERSHIP, 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 4 months beginning on May 1, 1998, and ending on August
31, 1998.
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: $1,860 for each
month of the Demised Term payable on the first day of each month in advance.
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 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.
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.
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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 $1,100, 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.
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.
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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.
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
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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.
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
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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.
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.
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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
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
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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.
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.
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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:
L & D PARTNERSHIP
By: /s/ Xxxxxx X. Xxx
----------------------------------
Xxxxxx X. Xxx, Partner
TENANT:
ROLOX, INC., f/k/a Thermoview Merger Corp.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxx, President
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EXHIBIT A
Property located at 7107 Pueblo, Wichita, Kansas and legally described
as follows:
Part of Xxx 0, Xxxxx X, Xxxxxxx Xxxxxxxxxx Xxxxxxxx, Xxxxxxxx
Xxxxxx, Kansas, described as beginning of the Northeast corner thereof;
thence South along the East line of said lot, 160 feet; thence West at right
angles 125 feet; thence North parallel with the East line of said lot; 146.22
feet to the Northerly line of said lot; thence Northeasterly 125.76 feet to
the place of the beginning.
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