LEASE
Exhibit 10.27
LEASE AGREEMENT effective as
of the _________ day of July 2009, between X. Xxxxxx Construction, LLC
(ID No. ______________) as lessee (“Lessee”) and Xxxxxx Commercial, LLC
referred to as lessor (“Lessor”).
WITNESSETH:
ARTICLE
I
LEASED
PREMISES
Lessor
does hereby demise and lease unto. Lessee, and Lessee does hereby hire and take
from Lessor those certain premises (the "Leased Premises") described as follows:
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx Xxxxxxx, XX
00000, which is said to be approximately 6,500 square feet, and Lessee does
hereby grant and convey to Lessee all leasehold and similar rights and interest
therein or thereto appertaining.
Lessor
has full right and authority to enter into this Lease and to grant to Lessee the
estate and all rights purported to be herein granted, free and clear of all
liens and other encumbrances, without the prior authorization, consent or
approval of any third party. Lessor’s entering into and performing
this Lease will not contravene, conflict with, or result in a default or event
of default under any law, rule or regulations or any agreement, document or
instrument affecting Lessor or the Lease Premises.
ARTICLE
II
TERM
The
primary term of this Lease shall commence October 15,
2009 and shall continue until October 15, 2014,
subject to all other provisions of this Lease. Lessee shall have the option to
renew this Lease on a YEAR to YEAR basis, if Lessee gives Lessor written notice
by certified or registered mail of its intention to renew at least ninety (90)
days prior to the expiration of the primary term, or renewal term, as
applicable, of this Lease. If Lessee timely exercises the option to renew
granted in this Lease, then this Lease shall continue upon the same terms with
exception to rent. RENT SHALL INCREASE BY THREE (3%) PERCENT FOR EVERY RENEWAL
AFTER THE PRIMARY TERM.
ARTICLE
III
RENT
(a) Amount. For the first
12 months of the lease agreement, rental shall be paid as follows:
FIFTY-ONE
THOUSAND DOLLARS ($51,000) is due at lease signing, and THREE
THOUSAND THREE HUNDRED AND THIRTY-THREE DOLLARS ($3,333) paid monthly
for the first twelve months of the lease agreement.
FOR MONTHS 13-60, The
Lessee shall pay to Lessor, or as Lessor shall direct, an advance monthly rental
during each month of the 48 remaining MONTHS the sum of SEVEN THOUSAND FIVE
HUNDRED EIGHTY THREE ($7,583 US$) DOLLARS paid on the 15th of every
month.
If rent
is not received within 5 days of the due date, there shall be assessed a late
payment penalty of ten (10%) percent of the rent due for each month in which the
rent remains unpaid. The late payment penalty shall be due when the
late rent is paid.
Right of
Refusal
IN
THE EVENT THAT THE LESSOR/OWNER ELECTS TO SELL THIS PROPERTY, LESSOR/OWNER
HEREBY GRANTS THE LESSEE THE RIGHT OF FIRST REFUSAL FOR FIVE BUSINESS DAYS FROM
DATE OF SUCH NOTICE. TO EXERCISE THIS RIGHT OF FIRST REFUSAL, THE
LESSEE MUST MEET ALL TERMS OF THE NEGOTIATED PURCHASE AGREEMENT. THIS
INCLUDES BUT IS NOT LIMITED TO TIME FRAMES, CONTINGENCIES, AND
PRICE. THIS RIGHT OF FIRST REFUSAL SHALL END WITH THE TERMINATION OF
THIS LEASE.
(b)
Address for
Payment: Each rental payment shall be made payable to the following
person and delivered to it at the following address:
Xxxxxx
Commercial , LLC
000 Xxxx
Xx. 0xx
Xxxxx
Xxxx
Xxxxxxx, XX 00000
Each
person may change the address for payment by notice to Lessee delivered on or
before thirty (30) days prior to the rent due date.
ARTICLE
IV
UTILITIES
Lessor
agrees to pay for all of the utility expenses, including gas, electrical, which
are related to the Leased Premises.
ARTICLE
V
MAINTENANCE AND
REPAIR
(a) Lessee’s Duties. By
entry hereunder, Lessee acknowledges that the Leased Premises and appurtenances
are in good, clean and sanitary order and repair, and accepts the Leased
Premises in the condition delivered. Lessee shall, solely at its cost and
expense, maintain the entire Leased Premises.
(b) Lessor's Duties. The
Lessor shall not be responsible for any maintenance of the Leased Premises;
provided that Lessor shall be responsible for maintenance and repair of the
building in which the Lease Premises are contained . If a repair or replacement,
not occasioned by a casualty, is required and will exceed $10,000 in cost,
Lessor shall have the option to make that repair or replacement or cancel and
terminate this lease as of the end of the month in which it is required to be
made; provided that, prior to any such cancellation or termination, Lessee shall
have the option, exercisable at any time within five business days after notice
from Lessor, to provide such repairs and replacement, in which event this Lease
shall continue in full force and effect in accordance with its
terms.
(c) No representation or
Warranties. Lessor has made no representations or promises with respect
to this Lease, with respect to the Leased Premises or with respect to any matter
related thereto, other than as expressly set forth herein.
(d) Indemnity. Lessee
hereby agrees to hold Lessor harmless and otherwise indemnify Lessor for any
liability to persons or property arising from all defects other than latent
defects in the Leased Premises and/or completed or incomplete repairs which are
the obligation of Lessee to undertake.
(e) Access. Lessor shall
have the right to reasonable access to the Leased Premises throughout the term
of this Lease for the purposes of repair or inspection.
(f) Casualty or
Expropriation. If as a result of a casualty to or expropriation of the
Leased Premises, the Leased premises cannot reasonably be occupied and used by
Lessee, Lessee may cancel and terminate this Lease on thirty (30) days advance
written notice to Lessor.
ARTICLE
VI
INSURANCE
Lessee
shall, at its own cost, and expense, keep and maintain in full force during the
term of this Lease, insurance as follows:
(a)
Against public liability claims (including Workmen's Compensation Claims),
against Lessor and Lessee, and all other claims against Lessor and Lessee as
owners and/or landlords resulting from any accident occurring at, on or in any
other way related to the Leased Premises, or any part thereof; said insurance to
provide coverage covering property damage, bodily injuries, including death
resulting therefrom, to the extent of $1,000,000.00 per accident and
$1,000,000.00 per person and liability for damage to property of others caused
thereby to the extent of $1,000,000.00 per accident;
(b)
Against the perils of fire, flood and hazards ordinarily included under the
standard extended coverage endorsements cover the full insurable value of the
Leased Premises, which the parties recognize is $750,000 on the date hereof;
and,
(c) The
Lessor shall be named as an additional insured in any policy maintained pursuant
to this Lease, and each such policy shall contain provisions against
cancellation except upon thirty (30) days prior notice to Lessor. Policies
and/or certificates' of such insurance coverage shall be provided at Lessor's
request.
ARTICLE
VII
USE OF LEASED
PREMISES
Lessee
shall use the Leased Premises exclusively as a construction company office, and
Lessee is bound not to use the leased premises for any purpose that is unlawful
or that tends to injure or depreciate the property.
Lessee
shall comply with all federal, state and/or local laws, rules, regulations
and/or orders with respect to the storage, use, discharge and/or removal of any
chemical substances, including any "Hazardous Substances," "Pollutants", or
"Contaminants" (as such terms are defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"» in
connection with its use of the Leased Premises. The Lessee shall be responsible
for the removal of any Hazardous Substances, Pollutants or Contaminants stored
in or on the Leased Premises by Lessee during the term of this Lease and/or if
required by any federal, state and/or local laws, rules, regulations and/or
orders resulting from the Lessee's use of the Leased Premises.
Lessee
shall immediately notify Lessor, in writing, of any violation or suspected
violation of any federal, state and/or local law, rule, regulation and/or order
dealing with Hazardous Substances, Pollutants or Contaminants.
Lessor
and Lessee acknowledge and agree that the Leased Premises have heretofore been
occupied by Lessor or an affiliate of Lessor. Notwithstanding any provision to
the contrary contained herein, in no event shall Lessee be liable for any acts
or omissions of Lessor or any prior tenant .or occupant, nor for the presence at
the Leased Premises of any Hazardous Substances, Pollutants or Contaminants if
not stored in or on the Leased Premises by Lessee during the term of this Lease
or if not resulting from the Lessee's use of the Leased Premises.
ARTICLE
VIII
INDEMNIFICATION
Lessee
covenants that it will hold and save Lessor harmless from any and all loss,
cost, liability, damage or expense, including without limitation, attorney's
fees and disbursements, caused by or arising from or in connection with the
injury or death to persons or damage to property in, upon or about the Leased
Premises or caused by or arising from or in connection with activities conducted
thereon, or any act or omission of Lessee, its agents, employees, contractors,
licenses and invitees, including without limitation, injury or death of
Lessee's. agents, employees, licensees, and invitees and damage to their
property; provided, however, that Lessee shall be required to indemnify Lessor
only for the negligence of the Lessee, its agents, employees, licensees and
invitees, and Lessee shall not be required to indemnify Lessor for any damage or
injury of any kind arising out of the negligence of third parties, the Lessor,
its agents or employees.
All
properties of Lessee and others, placed or allowed to remain on the Leased
Premises by Lessee or with its consent, shall remain on the Leased Premises at
the sole risk of Lessee and Lessor shall not have any responsibility therefore
or obligation to Lessee or any other party with respect thereto, except to the
extent occasioned by Lessor’s breach of this Lease or gross negligence. Lessee
shall comply with all
applicable insurance and fire prevention regulations.
The
obligations of indemnity and assumption of responsibility on the part of Lessee
set forth herein shall, to the extent· of the obligations therein expressed,
shall constitute an assumption of responsibility for the Leased Premises with
the meaning of LSA-R.S. 9:3221 or other applicable law.
ARTICLE
X
ASSIGNMENT
Lessee
has the right to sublease with prior consent of Lessor which shall not be
unreasonably withheld.
ARTICLE
XI
SUBORDINATION
This
Lease and all of Lessee's rights, title and interest in and under this Lease
shall be subject, subordinated and inferior to the lien of any and all mortgages
which now exist or which Lessor may in the future place upon the Leased
Premises; however, Lessee's' quiet enjoyment of the Leased Premises shall not be
disturbed provided that Lessee is not in default under this Lease and agrees to
attorn to Lessor's successor in title in the event of a foreclosure. If
requested by Lessee, the Mortgagor, Lessor and Lessee shall enter into an
agreement reflecting the subordination, non-disturbance and attornment
provisions of this paragraph.
ARTICLE
XII
DEFAULT AND REMEDIES
THEREFOR
(a) Default.
Any of the following shall constitute a default by Lessee:
(l)
Failure to pay any rental that is due and owing, provide the insurance required
for this lease or to pay the other expenses or obligations assumed under this
Lease within fifteen (15) days after the due date.
(2) Any
violation at any time of any other condition of this Lease if such violation
continues for thirty (30) days after written notice of such violation is mailed
by Lessor to Lessee.
(3) The
filing in any court of a petition in bankruptcy, receivership, reorganization,
for respite, or for any other debtor's proceedings by or against
Lessee.
(4) Any
seizure of Lessee's interest in this Lease under any writ of seizure of
execution.
(b) Remedies. If
any default shall occur, then, in addition, to any other rights which Lessor may
have under law or under the provisions of this Lease, Lessor shall have the
following options:
(1) To
proceed for past due installment only, reserving its rights to proceed later for
the remaining installments and to exercise any other option granted by this
Lease.
(2) To
cancel this Lease and to proceed for past due installments.
(3) To
accelerate the rental for unexpired term of the Lease.
However,
Lessor agrees that in the event of any default other than the default described
in (a) (1) above, Lessor will provide the Lessee with written notice of the
default, and Lessee shall have thirty (30) days thereafter within which to
correct the default.
Lessee
waives any putting in default for any such breach, except as expressly required
by this Lease. Failure strictly and promptly to enforce the conditions set forth
above shall not operate as a waiver of Lessor's rights. The acceptance of rent
by Lessor shall not waive any preceding breach by Lessee of any term or
condition of this Lease, other than the failure of Lessee to pay the particular
rental so accepted, regardless of Lessor's knowledge of the preceding breach at
the time of the acceptance of such rent. Receipt by Lessor of a partial rental
payment, even with special endorsement thereon, shall not constitute a waiver of
any of Lessor's rights hereunder. The waiver by Lessor or Lessee of any breach
of this Lease shall not be deemed a waiver of any subsequent breach of the same
of any other term or condition of this Lease. In the event of the failure of the
Lessee to perform any of its obligations under this Lease, Lessor may, but shall
not be obligated to, cause such obligations to be performed and shall have the
right to collect such sums of money as may be expended by Lessor therefore from
Lessee, together with interest at the rate of ten (10%) percent per annum until
paid. Such performance by the Lessor shall not constitute a waivier of any
default occasioned by Lessee’s non performance. If Lessor employs an attorney to
collect rent or any other sum due by Lessee, or if suit is brought to recover
possession of the Leased Premises, or because of the breach of this Lease by
Lessee (and a breach shall be established), Lessee shall pay to Lessor all
expense reasonably incurred therefor, including a reasonable attorney's fees for
such suit or collection.
(c) Default by
Lessor. In
the event Lessor fails to fulfill any of its obligations under this Lease,
Lessee agrees to provide Lessor, and any Mortgagee of the Leased Premises of
which Lessee has been notified, with notice of the default and shall allow
Lessor, or Mortgagee at Mortgagee's option, twenty (20) days within which said
default may be cured. In the event said default is not cured during this period,
Lessee shall have the right to enforce any and all remedies granted by this
Lease Agreement or by law against Lessor.
ARTICLE
XIII
TERMINATION AND HOLDING
OVER
Upon
termination, Lessee shall deliver the Leased Premises in good condition,
ordinary wear and tear accepted. In the event the Lessee holds the Lease over,
upon the termination or expiration of this Lease, the holding over shall operate
to extend the Lease on a month to month basis and shall thereafter constitute
this Lease a lease from month to month. In the event the Lessee does elect to
hold the Lease over, either party shall have the right during the holdover
period to terminate the continuation of the holding over by giving the other
party thirty (30) days written notice. All the other terms and conditions of
this Lease shall remain in effect during the holding over period. During the
term of this Lease, the Lessor shall have the right to show the Leased Premises
for sale, or rent.
ARTICLE XIV.
NOTICES
All
notices, certificates or other communications hereunder shall be sufficiently
given and shall be deemed given when mailed by registered or certified mail,
postage prepaid, or sent by telegram, addressed as follows:
If to the
Lessor:
Xxxxxxx
Xxxxxx, Xx
Xxxxxx Commercial, LLC
000 Xxxx Xx. 0xx
Xxxxx
Xxxx Xxxxxxx, XX 00000
If to the
Lessee:
X. Xxxxxx
Construction, LLC
Attn: Xx.
Xxxx Xxxxxxxx,
Vice-President Attn: Xx.
Xxxx Xxxxxxxxx
00000
Xxxxx X. Xxxxxx Xxx
Xxxxxxx
Xxxxxxx,
XX
00000 Xxxx
Xxxxxxx, XX 00000
ARTICLE
XV
BINDING
EFFECT
This
Lease shall inure to the benefit of and shall be binding upon the Lessor, the
Lessee and their respective successors and assigns, subject, however, to the
limitations contained in Article XI hereof.
ARTICLE
XVI
SEVERABILITY
If any
clause, paragraph or part of this Lease, for any reason, be finally adjudged by
any court of competent jurisdiction to be unconstitutional or invalid, such
judgment shall not affect, impair or invalidate the remainder of this Lease but
Shall be' confined in its operation to the clause, sentence, paragraph or any
part thereof directly involved in the controversy in which such judgment has
been rendered. The unconstitutionality, invalidity or ineffectiveness of anyone
or more provisions or covenants contained in this Lease shall not relieve the
Lessee from liability to make the payments of rental provided for in this
Lease.
ARTICLE
XVII
CAPTIONS
The
captions or headings in this Lease are for convenience only and in no way
define, limit or described the scope or intent of any provision of this
Lease.
ARTICLE
XVIII
EXECUTION OF
COUNTERPARTS
This
Lease may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one of the same
instrument.
ARTICLE
XIX
LAW GOVERNING CONSTRUCTION
OF AGREEMENT
This
Lease is prepared and entered into with the intention that the law of the State
of Louisiana shall govern its construction
ARTICLE
XX
NET
LEASE
INTENTINALLY
OMMITTED
ARTICLE
XXI
Other
conditions
Attached
hereto is a list of office equipment, furniture internet system, phone system,
etc. that the Lessee has agreed to purchase from the Lessor. Payment
shall be made in full within thirty (30) days after the acceptance of this
agreement.
IN WITNESS WHEREOF, the
parties hereto have caused these presents to be duly signed on the dates shown
below.
WITNESSES: LESSOR:
_/s/ Xxxxxxx
Hopkins_______________ /s/ Xxxxxxx X. Xxxxxx,
Xx.
Print
Name: Xxxxxxx
Xxxxxxx Xxxxxxx
X. Xxxxxx, Xx.
Date: 7/16/09
LESSEE:
X. XXXXXX CONSTRUCTION, LLC
__/s/ Xxxx
Korkowski_________ By:
/s/ Xxxx
Xxxxxxxx
Print
Name: Xxxx
Xxxxxxxx, Vice President
__________________________ Date:
7/16/09
Print
Name:
SOLIDARY
GUARANTEE
The
undersigned, Orion Marine Group Inc. I
herewith guarantees the performance of all of Lessee's obligations under
the foregoing Lease, including the payment of all amounts of rent, taxes,
maintenance expenses and insurance, solidarily, binding itself in solido,
unconditionally and as original promissor.
This
16 day of July,
2009.
ORION
MARINE GROUP, INC,
By:
/s/ Xxxx
Xxxxxxxx
ACKNOWLEDGMENT
STATE
OF TEXAS
COUNTY
OF XXXXXX
BEFORE ME, the undersigned
Notary Public, duly commissioned and qualified in and for the aforesaid Parish
and State, personally came and appeared Xxxx Xxxxxxxx, who by me
being sworn, deposed and said that he witnessed the execution of the foregoing
instrument by Xxxx Xxxxxxxx, Vice-President of X. Xxxxxx Construction, LLC, who
in his official capacities executed the foregoing instruments of their own free
will, act and deed on behalf. of those entities for the uses, purposes· and
considerations therein expressed.
Xxxx Xxxxxxxx
Sworn
to and subscribed
before me,
this
16 day of July
2009.
Rose Xxxx
Xxxxx
Notary
Public
