COMMERCIAL LEASE
Exhibit
10.3
Preamble
– Parties and Premises Bullet Concrete Materials. Inc.
“Lessor,” hereby leases to Texoga Technologies Corporation, referred to in this
lease as “Lessee,” those certain premises, referred to as “the Premises,” the
following described real property in Xxxxxxxxxx County, Texas to
wit:
The
North
40 feet in lot 10 and lot 21, all of lot 11 and 22, Block 4, the North 90 feet
of never opened Xxxxx Street lying between Block 4 and Block 8, the North 20
feet of Lot 9 and Lot 20, all of xxx 00, 00, 00, xxx 00, Xxxxx 0 and the North
120 feet of never opened Xxx Street lying between Block 8 and Block 12 all
situated in the Townsite of Tamina, Xxxxxxxxxx County, Texas according to the
Map thereof recorded in the Xxxxxxxxxx County Deed Records in Volume 34 page
281
and 282, containing 1.157 acres of land, more or less (copy of plat
attached)
Reservation This
lease is made on the above described property subject to Lessor’s and its
successors and assigns reservation and retention of a right-of-way, servitude
and easement fifty (50) feet in width for the location, construction,
reconstruction, repairs, operation, inspection and maintenance of railroad
facilities now or in the future which Lessor and/or its successors and assigns
may desire.
Lessee
agrees not to construct any
structure on the leased premises without the express written consent of the
Lessor.
Lessor
reserves the right to furnish
ready mix concrete poured on the leased premises.
Term The
term of this lease shall be for the period of 48 months commencing on the 1st
of
May 2007, and ending at 12:01 a.m. 48 months later, unless sooner terminated
as
herein provided.
Rent Lessee
agrees to pay to Lessor as rent for the use and occupancy of the premises the
sum of money reflected in the rental schedule that follows on the 1st day of
every month
commencing with May 1, 2007, at the office of Lessor or such other place as
Lessor may designate by written notice given to Lessee.
Rental
Schedule
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Commencing
on May 1, 2007
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$2,620.80
/ month
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Commencing
on May 1, 2008
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$2,725.63
/ month
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Commencing
on May 1, 2009
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$2,834.65
/ month
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Commencing
on May 1, 2010
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$2,948.04
/ month
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It
is
agreed that this real property shall be used to construct an electricity
generating machine no more than one (1) 30,000 gallon storage
tank. If Lessee should need to construct additional storage tanks on
the property, it should notify Lessor of its intent and begin to pay additional
rent in the amount of $500.00 per month, per tank with a 4% per year increase
in
rental each year. The increase beginning on the 1st day of
the month
in which construction of each additional tank begins. Access to the
leased property shall be across
Xxxx 00 xxx 00, Xxxxx 00, Xxxxxxxx xx Xxxxxx and Lots 12 and 13, Shady Xxxxxxx,
Section 1, subdivision leased to Texoga Technologies
Corporation.
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Special Lessee
agrees to fully comply with any permitting or registration required by Local,
State and Federal Regulations for the proposed operation, and to furnish Lessor
with a copy of same. Lessee agrees to provide to Lessor a written
spill prevention and response plan to the Lessor within 20 days of the start
of
this lease. Lessee agrees to provide security fencing and spill
barriers sufficient to insure that any spill will be contained on the leased
premises. If any spilled or discharged material, caused by Lessee,
shall leave the leased premises and encroach on adjacent land this lease shall
terminate effective on the last day of the month that such encroachment occurs
notwithstanding any other provision contained in this lease. Lessee
shall furnish soil test reports made on leased premises to Lessor.
Utilities Any
cost to prepare the electrical service for use by the Lessee shall be at the
sole cost of the Lessee. Any cost of replacing lamps or ballasts or
disconnects or wiring shall be at the sole cost of the Lessee. All
electrical services shall be maintained according to all applicable
codes.
Hold
Over Should Lessee hold over and continue in possession of
the premises after expiration of the term of this lease or any extension
thereof, Lessee’s continued occupancy of the premises shall be considered a
month-to-month tenancy subject to all the terms and conditions of this
lease.
Use
of Premises The premises shall be used for generating
electricity by Lessee and for not other use or uses without the express written
consent of Lessor.
Prohibited
Uses Lessee shall not commit or permit the commission of any
acts on the premises nor use or permit the use of the premises in any way
that:
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a)
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will
increase the existing rates for or cause cancellation of any fire,
casualty, or liability policy insuring the
premises.
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b)
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violates
or conflicts with any law, statute, ordinance, or governmental rule
or
regulation, whether now in force or hereinafter enacted, governing
the
premises.
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c)
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obstructs
or interferes with the rights of other tenants or occupants on site
where
the premises are located or injures or annoys them;
or
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d)
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constitutes
the commission of waste on the premises or the commission or maintenance
of a nuisance; or
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e)
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violates
any environmental rule, regulation, or law, or results in the
contamination of the leased premises or any land surrounding or near
to
the leased premises by the discharge, intentional placement or spillage
of
material which Lessee may allow, permit, or suffer to be present
on the
lease premises; or
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f)
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creates
a noise level outside of the perimeter of the leased property greater
than
85 decibels in any 8-hour weighted average in accordance with OSHA
Safety
and Health Standard (29 CFR 1910.95);
or
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g)
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blows
air or exhaust fumes onto or across land adjacent to the leased
premises.
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Alterations Lessee
shall not make or permit any other person to make any major alterations to
the
premises without the prior written consent of Lessor. Should Lessor
consent to the making of any alternations to the premises by Lessee, the
alterations shall be made at the sole cost and expense of Lessee by a contractor
or other person selected by Lessee and approved in writing before work commences
by Lessor. Any and all alterations, additions, or improvements made
to the premises shall on expiration or sooner termination of this lease, become
the property of Lessor and remain on the premises; provided, however, that
on
expiration or sooner termination of this lease and written demand being given
by
Lessor, Lessee shall at Lessee’s sole cost and expense remove all alterations,
additions, and improvements made to the premises by Lessee and pay all costs
of
repairing any damages to the premises caused by their removal.
Maintenance
and Repairs Lessee admits, by entering into possession under
this lease, that the premises are now in a condition satisfactory to
Lessee. Lessee at all times during the term of this lease and any
renewal or extension thereof, maintain, at Lessee’s sole cost and expense, the
premises, and every part of the premises, in a good, clean, and safe condition,
and shall on expiration or sooner termination of this lease surrender the
premises to Lessor in as good condition and repair as they are in on the date
of
this lease, reasonable wear and tear and damage by the elements
excepted. Lessee hereby waives any right to make repairs to the
premises at the expense of Lessor as provided by any law or statute now or
hereafter enacted.
Inspection
by Lessor Lessee shall permit Lessor or Lessor’s agents,
representatives, or employees to enter the premises at all reasonable times
for
the purpose of inspecting the premises to determine whether Lessee is complying
with the terms of this lease and for the purpose of doing other lawful acts
that
may be necessary to protect Lessor’s interest in the premises under this
lease.
Personal
Property Taxes Lessee shall pay before they become
delinquent all taxes, assessments, or other charges levied or imposed by any
governmental entity on the furniture, trade fixtures, appliances, and other
personal property placed by Lessee in, on, or about the premises including,
without limiting the generality of the other terms used in this section, any
shelves, counters, vaults, vault doors, wall safes, partitions, fixtures,
machinery, plant equipment, office equipment, television or radio antennas,
or
communication equipment brought on the premises by Lessee.
Real
Property Taxes All real property taxes at the present
valuation and/or rate will be paid by Lessor. All increases in Real
Property Taxes after the start date of this lease, shall be paid by Lessee
to
the Lessor after written notices to Lessee by Lessor.
Destruction
of Premises Should the premises or the Building of which
they are a part be damaged or destroyed by any cause not the fault of
Lessee, Lessor or Lessee shall have the option to repair the premises, or to
cancel the lease without damages to either Lessee or Lessor.
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Condemnation
of Premises Should all or any part of the premised be taken
by any public or quasi-public agency or entity under the power of eminent domain
during the term of this lease:
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a)
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either
Lessor or Lessee may terminate this lease by giving the other 30
days
written notice of termination; provided, however, that Lessee cannot
terminate this lease unless the portion of the premises taken by
eminent
domain is so extensive as to render the remainder of the premises
useless
for the uses permitted by this
lease;
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b)
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any
and all damages and compensation awarded or paid because of the taking,
except for amounts paid Lessee for moving expenses or for damage
to any
personal property or trade fixtures owned by Lessee, shall belong
to
Lessor, and Lessee shall have no claim against Lessor or the entity
exercising eminent domain power for the value of the unexpired term
of
this lease;
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c)
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should
only a portion of the premises be taken by eminent domain and neither
Lessor nor Lessee terminates this lease, the rent thereafter payable
under
this lease shall be reduced by the same percentage that the floor
area of
the portion taken by eminent domain bears to the floor area of the
entire
premises; and
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No
Assignment or Subleasing Lessee shall not encumber, assign,
or otherwise transfer this lease, any right or interest in this lease, or any
right or interest in the premises without the prior express written consent
of
Lessor. Neither shall Lessee sublet the premises or any part thereof
or allow any other persons, other than Lessee’s agents and servants, to occupy
or use the premises or any part thereof without the prior written consent of
Lessor.
Indemnity Lessee
shall indemnify and hold Lessor and the property of Lessor, including the
premises, free and harmless from any and all liability, claims, loss, damages
or
expenses, including counsel fees and costs, arising by reason of the death
or
injury of any person, including Lessee or any person who is an employee or
agent
of Lessee, or by reason of damage to or destruction of any property, including
property owned by Lessee or any person who is an employee or agent of Lessee,
caused or allegedly caused by:
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a)
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any
cause whatsoever while such person or property is in or on the premises
or
in any way connected with the premises or with any personal property
on
the premises;
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b)
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some
condition of the premises;
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c)
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some
act or omission on the premises of Lessee or any person in, on, or
about
the premises with the permission of Lessee;
or
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d)
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any
matter connected with Lessee’s occupation and use of the
premises.
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Liability
Insurance Lessee shall, at its own cost and expense, secure
within 10 days and maintain during the entire term of this lease and any
renewals or extensions of such term a broad form comprehensive coverage policy
of public liability insurance issued by an insurance company acceptable to
Lessor and insuring Lessor against loss or liability caused
by
or connected with Lessee’s occupation and use of the premises under this lease
in amounts not less than:
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a)
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$1,000,000
for injury to or death of one person and, subject to such limitation
for
the injury or death of one person, of not less than $2,000,000 for
injury
to or death of two or more persons as a result of any one accident
or
incident; and
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b)
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$50,000
for damage to or destruction of any property of
others.
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c)
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Environmental
insurance in the amount of
$2,000,000.
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Trade
Fixtures Any trade fixtures, equipment, inventory, or
supplies that are not removed from the leased premises by Lessee 60 days after
this lease’s expiration or sooner termination, regardless of cause, shall be
deemed abandoned by Lessee and shall automatically become the property of Lessor
as owner of the real property. This is not intended to be a penalty
provision, but rather a provision to hasten Lessor’s access to and renewal
possession of its premises upon the termination of this lease to which Lessee
agrees.
Acts
Constituting Breaches by Lessee Lessee shall be guilty of a
material default and breach of this lease should:
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a)
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any
rent be unpaid when due and remain unpaid for 15 days after written
notice
to pay such rent or surrender possession of the premises has been
given to
Lessee by Lessor:
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b)
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Lessee
default in the performance of or breach any provision, covenant,
or
condition, or condition of this lease other than one for the payment
of
rent and such default or breach is not cured within 15 days after
written
notice thereof is given by Lessor to
Lessee:
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c)
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Lessee
breach this lease and abandon the premises before expiration of the
term
of this lease;
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d)
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a
receiver be appointed to take possession of all or substantially
all of
Lessee’s property and not be discharged within 20 days after his or her
appointment;
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e)
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Lessee
make a general assignment for the benefit of creditors;
or
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f)
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execution
or attachment be levied on all or substantially all of Lessee’s property
and assets and not be discharged within 20
days.
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Lessor’s
Remedies for Lessee’s Default Should Lessee be guilty of a
material default and breach of this lease as defined in this lease, Lessor,
in
addition to any other remedies given Lessor by law or equity, may:
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a)
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continue
this lease in effect by not terminating Lessee’s right to possession of
the premises and thereby be entitled enforce all Lessor’s right to recover
the rent specified in this lease as it becomes due under this
lease;
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b)
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terminate
Lessee’s right to possession of the premises, thereby terminating this
lease, and recover from Lessee:
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1)
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the
worth at the time of award of the unpaid rent which had been earned
at the
time of the termination of the
lease;
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2)
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the
worth at the time of award of the amount by which the unpaid rent
which
would have been earned after termination of the lease until the time
of
award exceeds the amount of rental loss that Lessee proves could
have been
reasonably avoided;
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3)
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the
worth at the time of award of the amount by which the unpaid rent
for the
balance of the term of award exceeds the amount of rental loss that
Lessee
proves could be reasonably avoided;
and
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4)
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any
other amount necessary to compensate Lessor for all detriment
approximately caused by Lessee’s failure to perform Lessee’s obligations
under this lease.
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c)
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in
lieu of, or in addition to, bringing an action for any or all of
the
recoveries described in this lease, bring an action to recover and
regain
possession of the premises in the manner provided by the laws of
Texas.
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Waiver
of Breach The waiver by Lessor of any breach by Lessee of
any of the provisions if this lease shall not constitute a continuing waiver
or
a waiver of any subsequent breach by Lessee either of the same or another
provision of this lease.
Force
Majeure – Unavoidable Delays Should the performance of any
act required by this lease to be performed by either Lessor or Lessee be
prevented or delayed by reason of an act of God, strike, lockout, labor
troubles, inability to secure materials, restrictive governmental laws or
regulations, or any other cause, except financial inability, not the fault
of
the party required to perform the act, the time for performance of the act
will
be extended for a period equivalent to the period of delay and performance
of
the act during the period of delay will be excused; provided, however, that
nothing contained in this section shall excuse the prompt payment of rent by
Lessee as required by this lease or the performance of any act rendered
difficult solely because of the financial condition of the party, Lessor or
Lessee, required to perform the act.
Attorneys’
Fees Should any litigation or arbitration be commenced
between the parties to this lease concerning the premises, this lease, or the
rights and duties of either in relation thereto, the party, Lessor or Lessee,
prevailing in such litigation or arbitration shall be entitled, in addition
to
such other relief as may be granted, to a reasonable sum for its attorneys
fees.
Notices Except
as otherwise expressly provided by law, any and all notices or other
communications required or permitted by this lease or by law to be served on
or
given to either party hereto by the other party hereto shall be in writing
and
shall be deemed duly served and given when personally delivered to (any member
of) the party to whom they are directed, or in lieu of such personal service
when deposited in the United States mail, first-class postage prepaid, addressed
to Lessee at 00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxx 00000
or to Lessor at 0000 Xxxxxxxx, Xxxxxx, Xxxxx 00000. Either party,
Lessee or Lessor, may change his address for the purpose of this section by
giving written notice of such change to the other party in the manner provided
in this section.
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Binding
on Heirs and Successors This lease shall be binding on and
shall inure to the benefit of the heirs, executors, administrators, successors,
and assigns of the parties hereto, Lessor and Lessee, but nothing in this
section contained shall be construed as a consent by Lessor to any assignment
of
this lease or any interest therein by Lessee.
Partial
Invalidity Should any provision of this lease be held by a
court of competent jurisdiction to be either invalid, void or unenforceable,
the
remaining provisions of this lease shall remain in full force and effect
unimpaired by the holding.
Sole
and Only Agreement This instrument constitutes the sole and
only agreement between Lessor and Lessee respecting the premises, the leasing
of
the premises to Lessee, or the lease term herein specified, and correctly sets
forth the obligations of Lessor and Lessee to each other as of its
date. Any agreements or representations respecting the premises or
their leasing by Lessor to Lessee not expressly set forth in this instrument
are
void.
Time
of Essence Time is expressly declared to be the essence of
this lease.
EXECUTED
on April 27, 2007 at The Woodlands, Texas.
LESSOR
Bullet
Concrete Materials, Inc.
By: /s/
Xxxxxx Xxxxxx, Xx.
Xxxxxx
Xxxxxx, Xx., President
LESSEE
Texoga
Technologies Corporation
By: /s/
Xxxxxx X. XxXxxxx
Xxxxxx
X.
XxXxxxx, Chief Executive Officer-7-
