EXHIBIT 10.1
COMMERCIAL LEASE
This Lease Agreement is made and entered into by and between ▇▇▇▇▇ &
▇▇▇▇▇, LTD. (Landlord), whose address is ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, and TEXAS LANDSCAPE CENTER, INC. (Tenant), whose address is ▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇-▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord that certain property with the improvements
thereon, hereinafter called the "leased premises", known as the addresses set
forth with each tract of land, more particularly described as follows, to-wit:
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Addition to the City of Odessa commonly
known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
The primary term of this lease shall be two (2) years commencing prior
hereto on the 1ST day of DECEMBER, 2006, and ending on the 30TH day of NOVEMBER,
2008, and is automatically renewable thereafter unless either party gives the
other party notice at least on or before April 1st of any year preceding the
year in which the termination shall occur, upon the following terms, conditions
and covenants:
1. TAXES: Each year during the term of this lease, Tenant shall pay real
estate taxes assessed against the leased premises in an amount equal to
the total real estate taxes assessed against the leased premises in the
base year. Each year during the term of this lease, Tenant shall pay as
additional rental, upon receipt of a statement from Landlord together
with tax statements or other verification from the proper taxing
authority, his pro rata share of any increase in real estate taxes over
the base year on the property of which the leased premises is a part.
2. UTILITIES: Tenant shall pay all charges for utility services to the
leased premises.
3. HOLDING OVER: Failure of Tenant to surrender the leased premises at the
expiration of the lease constitutes a holding over which shall be
construed as a tenancy from month to month at a rental of $15,000.00
per month.
4. RENT: Tenant agrees to and shall pay Landlord at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, or at such other place Landlord shall designate from time to
time in writing, as rent for the leased premises, the total sum of
$48,000.00, payable without demand in equal monthly payments of
$4,000.00 each in advance on or before the 1ST day of each month,
commencing prior hereto on DECEMBER 1, 2006, and continuing thereafter
until the total sum shall be paid. If rent is not received by Landlord
by the 5th of each month, Tenant shall pay a late charge of five (5)
percent of the payment. Tenant shall pay $25.00 for each returned
check.
5. USE: Tenant shall use the leased premises for the following purpose and
no other: landscape center and nursery.
6. SECURITY DEPOSIT: Tenant shall pay to Landlord a security deposit in
the sum of $N/A payable on or before the commencement of this lease for
Tenant's faithful performance hereunder. Refund thereof shall be made
upon performance of this lease agreement by Tenant, minus any
assessments or damages unless Landlord and Tenant provide otherwise in
Special Provisions.
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7. CONDITION OF PREMISES: Tenant has examined and accepts the leased
premises in its present as is condition as suitable for the purposes
for which the same are leased, and does hereby accept the leased
premises regardless of reasonable deterioration between the date of
this lease and the date Tenant begins occupying the leased premises
unless Landlord and Tenant agree to repairs or refurbishment as noted
in Special Provisions.
8. MAINTENANCE AND REPAIRS: Tenant shall be responsible to keep the
foundation, the exterior walls and the roof of the leased premises in
good repair.
9. ALTERATIONS: All alterations, additions and improvements, except trade
fixtures, installed at expense of Tenant, shall become the property of
Landlord and shall remain upon and be surrendered with the leased
premises as a part thereof on the termination of this lease. Such
alterations, additions, and improvements may only be made with the
prior written consent of Landlord, which consent shall not be
unreasonably withheld. If consent is granted for the making of
improvements or alterations to the leased premises, such improvements
and alterations shall not commence until Tenant has furnished to
Landlord a certificate of insurance showing coverage in an amount
satisfactory to Landlord protecting Landlord from liability for injury
to any person and damage to any personal property, on or off the leased
premises, in connection with the making of such improvements or
alterations. No cooling tower, equipment, or structure of any kind
shall be placed on the roof or elsewhere on the leased premises by
Tenant without prior written permission of Landlord. If such permission
is granted, such work or installation shall be done at Tenant's expense
and in such a manner that the roof shall not be damaged thereby. If it
becomes necessary to remove such cooling tower, equipment or structure
temporarily, so that repairs to the roof can be made. Tenant shall
promptly remove and reinstall the cooling tower, equipment or structure
at Tenant's expense and repair at Tenant's expense any damage resulting
from such removal or reinstallation. Upon termination of this lease,
Tenant shall remove or cause to be removed from the roof any such
cooling tower, equipment or structure if directed to do so by Landlord.
Tenant shall promptly repair at its expense any damages resulting from
such removal. At the termination of this lease, Tenant shall deliver
the leased premises in good order and condition, natural deterioration
only excepted. Any damage caused by the installation or removal of
trade fixtures shall be repaired at Tenant's expense prior to the
expiration of the lease term. All alterations, improvements, additions,
and repairs made by Tenant shall be made in good and workmanlike
manner.
10. COMPLIANCE WITH LAWS AND REGULATIONS: Tenant shall, at its own expense,
comply with all laws, orders and requirements of all governmental
entities with reference to the use and occupancy of the leased
premises. Tenant and Tenant's agents, employees and invitees shall
fully comply with any rules and regulations governing the use of the
buildings or other improvements to the leased premises as required by
Landlord. Landlord may make reasonable changes in such rules and
regulations from time to time as deemed advisable for the safety, care
and cleanliness of the leased premises, provided same are in writing
and are not in conflict with this lease.
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11. ASSIGNMENT AND SUBLETTING: Tenant shall not assign this lease nor
sublet the leased premises or any interest therein without first
obtaining the written consent of Landlord. An assignment or subletting
without the written consent of Landlord shall be void and shall, at the
option of Landlord, terminate this lease.
12. DESTRUCTION: In the event the leased premises is partially damaged or
destroyed or rendered partially unfit for occupancy by fire or other
casualty, Tenant shall give immediate notice to Landlord. Tenant hereby
assumes risk of loss of the leased premises and hereby agrees to
rebuild any portion of the leased premises that is destroyed or deemed
by the Landlord to be rendered unfit for occupancy.
13. TENANT DEFAULT: If Tenant abandons the premises or otherwise defaults
in the performance of any obligations or covenants herein, Landlord may
enforce the performance of this lease in any manner provided by law.
This lease may be terminated at Landlord's discretion if such
abandonment or default continues for a period of 10 days after Landlord
notifies Tenant of such abandonment or default and of Landlord's
intention to declare this lease terminated. Such notice shall be sent
by Landlord to Tenant at the leased premises by certified mail or
otherwise. If Tenant has not completely removed or cured default within
the 10-day period, this lease shall terminate. Thereafter, Landlord or
its agents shall have the right, without further notice or demand, to
enter the leased premises and remove all persons and property without
being deemed guilty of trespass and without waiving any other remedies
for arrears of rent or breach of covenant. Upon abandonment or default
by the Tenant, the remaining unpaid portion of the rental from
paragraph 4 herein, shall become due and payable.
14. SUBORDINATION: Landlord is hereby irrevocably vested with full power
and authority to subordinate this lease to any mortgage, Deed of Trust,
or other lien hereafter placed on the demised premised and Tenant
agrees on demand to execute such further instruments subordinating this
lease as Landlord may request, provided such subordination shall be on
the express condition that this lease shall be recognized by the
mortgagee, and the rights of Tenant shall remain in full force and
effect during the term of this lease so long as Tenant shall continue
to perform all of the covenants and conditions of this lease.
15. INDEMNITY: Landlord and its employees and agents shall not be liable to
Tenant or to Tenant's employees, patrons, visitors, invitees or any
other persons for any injury to any such persons or for any damage to
personal property caused by an act, omission, or neglect of Tenant or
Tenant's agents or of any other tenant of the premises of which the
leased premises is a part. Tenant agrees to indemnify and hold Landlord
and its employees and agents harmless from any and all claims for such
injury and damages, whether the injury occurs on or off the leased
premises.
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16. SIGNS: Tenant may post or paint any signs at, on or about the leased
premises or paint the exterior walls of the building except with the
prior written consent of the Landlord. Landlord shall have the right to
remove any sign or signs in order to maintain the leased premises or to
make any repairs or alterations thereto.
17. TENANT BANKRUPTCY: If Tenant becomes bankrupt or makes voluntary
assignment for the benefit of creditors or if a receiver is appointed
for Tenant, Landlord may terminate this lease by giving five (5) days
written notice to Tenant of Landlord's intention to do so.
18. CONDEMNATION: If the whole or any substantial part of the leased
premises is taken for any public or quasi-public use under any
governmental law, ordinance or regulation or by right of eminent domain
or should the leased premises be sold to a condemning authority under
threat of condemnation, this lease shall terminate and the rent shall
be abated during the unexpired portion of the lease effective from the
date of the physical taking of the leased premises.
19. NOTICES: Notices to Tenant shall be by certified mail or other delivery
to the leased premises. Notices to Landlord shall be by certified mail
to the place where rent is payable.
20. DEFAULT BY LANDLORD: In the event of breach by Landlord of any
covenant, warranty, term or obligation of this lease, then Landlord's
failure to cure same or commence a good faith effort to cure the same
within 10 days after written notice thereof by Tenant shall be
considered a default and shall entitle Tenant to either to terminate
this lease or cure the default and make the necessary repairs and
expenses incurred by Tenant shall be reimbursed by the Landlord after
reasonable notice of the repairs and expenses incurred. If any utility
services furnished by Landlord are interrupted and continue to be
interrupted despite the good faith efforts of Landlord to remedy the
same, Landlord shall not be liable in any respect for damages to the
person or property of Tenant or Tenant's employees, agents or guests,
and same shall not be construed as grounds for constructive eviction or
abatement of rent. Landlord shall use reasonable diligence to repair
and remedy such interruption promptly.
21. RIGHT OF ENTRY: Landlord shall have the right during normal business
hours to enter the demised premises: a) to inspect the general
condition and state of repair thereof, b) to make repairs required or
permitted under this lease, or c) for any other reasonable purpose.
22. WAIVER OF BREACH: The waiver by Landlord of any breach of any provision
of this lease shall not constitute a continuing waiver or a waiver of
any subsequent breach of the same or a different provision of this
lease.
23. TIME OF ESSENCE: Time is expressly declared to be of the essence in
this lease.
24. BINDING OF HEIRS AND ASSIGNS: Subject to the provisions of this lease
pertaining to assignment of the Tenant's interest, all provisions of
this lease shall extend to and bind, or inure to the benefit not only
of the parties to this lease but to each and every one of the heirs,
executors, representatives, successors, and assigns of Landlord or
Tenant.
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25. RIGHTS AND REMEDIES CUMULATIVE: The rights and remedies by this lease
agreement are cumulative and the use of any one right or remedy by
either party shall not preclude or waive its right to use any or all
other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or
otherwise.
26. TEXAS LAW TO APPLY: This agreement shall be construed under and in
accordance with the laws of the State of Texas.
27. LEGAL CONSTRUCTION: In case any one or more of the provisions contained
in this agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this
agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
28. PRIOR AGREEMENTS SUPERSEDED: This agreement constitutes the sole and
only agreement of the parties to this lease and supersedes and prior
understandings or written or oral agreements between the parties
respecting the subject matter of this lease.
29. AMENDMENT: No amendment, modification, or alteration of the terms
hereof shall be binding unless it is in writing, dated subsequent to
the date hereof, and duly executed by the parties.
30. ATTORNEY'S FEES: Any signatory to this lease agreement who is the
prevailing party in any legal proceeding against any other signatory
brought under or with relation to this lease agreement or this
transaction shall be additionally entitled to recover court costs,
reasonable attorney fees, and all other out-of-pocket costs of
litigation, including deposition, travel and witness costs from the
prevailing party.
EXECUTED this day of December, 2006.
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TENANT: LANDLORD:
▇▇▇▇▇ & ▇▇▇▇▇, LTD.
/s/ By: /s/
-------------------------------- ------------------------------------
Texas Landscape Center, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇, General Partner
GUARANTEE OF CONTRACT. The undersigned hereby jointly and severally guarantee
the performance of the contract on behalf of the Buyer.
PENGE CORPORATION
/s/_________________________________
By ▇▇▇▇ ▇▇▇▇▇▇▇, CEO
/s/_________________________________
▇▇▇▇ ▇▇▇▇▇▇▇, Individually
/s/_________________________________
K. C. Homes, Individually