LEASE
Exhibit 10.4
LEASE
LEASE AGREEMENT effective as of the 13th day of September, 2006, between X. Xxxxxx
Construction, L.L.C. (I. D. No.
) as lessee (“Lessee”) and Xxx X. Xxxxxx, Xx., referred to as lessor (“Lessor”).
ARTICLE I
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:
Commencing on the North right-of-way line of U. S. Xxxxxxx Xx. 00 a
distance of 461.4 feet Southeasterly from intersection of North line
of U. S. Xxxxxxx Xx. 00 and West line of Section Thirty-six (36),
Township Nine (9) South, Range Eight (8) West, La. Mer., thence
North 0° 44’ West along the East line of property allotted to Mrs.
May Xxxxxx Xxxx 1400 feet, more or less, to South right-of-way line
of Southern Pacific Railroad, thence East along South right-of-way
line of Southern Pacific Railroad 453.45 feet to Northwest corner of
property allotted to Xxxxxx Xxxxxxx House, thence South 0° 44’ East
along West line of property allotted to Xxxxxx Xxxxxxx House 800
feet, thence North 80° 56’ West 361.4 feet parallel to U. S. Highway
No. 90, thence South 0° 44’ East 670 feet to North right-of-way line
of U. S. Highway No. 90, thence North 80° 56’ West along the North
side of U. S. Xxxxxxx Xx. 00 a distance of 100 feet to the point of
commencement.
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 without the prior consent or approval of any third
party.
ARTICLE II
The primary term of this Lease shall commence the 15th day of September, 2006 and shall
continue until the 31st day of August, 2007, subject to all other provisions of this Lease. Lessee
shall have the option to renew this Lease for five (5) additional successive renewal terms of one
(1) year each, 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 options to renew granted
in this Lease, then this Lease shall continue upon the same terms and provisions contained in this
Lease (including rental).
ARTICLE III
Each rental payment shall be made payable to the following person and delivered to it at the following address:
Xxx X. Xxxxxx, Xx.
0000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
0000 Xxxxx Xxxx Xxxx
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.
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ARTICLE IV
Lessee agrees to pay for all of the utility expenses, including gas, electrical and
water, which are related to the Leased Premises are located. Lessee agrees all utilities will be
listed in the name of Lessee and billed to Lessee.
ARTICLE V
Lessee shall pay all taxes, including ad valorem taxes, on the Leased Premises and on
Lessee’s improvements, equipment and other property on the Leased Premises and shall further pay
for its occupational licenses and fees levied by any governmental bodies. PROVIDED, HOWEVER, ad
valorem taxes and other taxes shall be prorated for the first and final years of the lease term.
The aforesaid items are to be paid by Lessee are a part of the rent for the Leased Premises,
and a default in the payment of same shall be considered as a default in the payment of rental.
ARTICLE VI
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defects in the Leased Premises and/or completed or incomplete repairs which are the obligation of
Lessee to undertake.
ARTICLE VII
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
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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 VIII
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
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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 IX
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.
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Lessor shall not be liable for any damage to property or persons caused by, or arising out of
water coming from the roof, water pipes, boilers, heating pipes, plumbing fixtures, waste pipes or
any other source whatsoever whether within or without the Leased Premises.
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 therefor or obligation to Lessee or any other party with
respect thereto. 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
Lessee shall not assign or sublease the Leased Premises in whole or in part, unless prior
written consent of the Lessor is obtained. Such consent shall not be unreasonably withheld,
provided that the Lessee shall remain primarily liable for the payment of the rent and the
performance of the terms and conditions of this Lease.
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ARTICLE XI
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
(1) Failure to pay any rental, 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.
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(4) Any seizure of Lessee’s interest in this Lease under any writ of seizure of execution.
(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
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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
therefor 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 wavier of any default occasioned by Lessee’s
nonperformance. 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.
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ARTICLE XIII
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
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:
Xxx X. Xxxxxx, Xx.
0000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
0000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
If to the Lessee:
X. Xxxxxx Construction, LLC
Attn: Xx. Xxxx Xxxxxxxx, Vice-President
00000 Xxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxxx, Vice-President
00000 Xxxxx
Xxxxxxx, XX 00000
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ARTICLE XV
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
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 any one 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
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
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.
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ARTICLE XIX
This Lease is prepared and entered into with the intention that the law of the State of
Louisiana shall govern its construction
ARTICLE XX
This agreement shall be deemed and construed to be a “net lease” and the Lessee shall
pay absolutely net during the Lease Term and rent and all other payments required hereunder,
free of any deductions, without abatement, diminution or set-off other than those herein
expressly provided.
WITNESSES:
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LESSOR: | |||||||||||
Print Name: | XXX X. XXXXXX, XX. | |||||||||||
DATE: | ||||||||||||
, | 2006 | |||||||||||
Print Name:
|
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LESSEE: | ||||||||||||
X. XXXXXX CONSTRUCTION, LLC | ||||||||||||
By: | ||||||||||||
Print Name: | Xxxx Xxxxxxxx, Vice-President | |||||||||||
DATE: | ||||||||||||
, | 2006 | |||||||||||
Print Name:
|
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The undersigned, Orion Marine Group Holdings, Inc., 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 day of September, 2006.
ORION MARINE GROUP HOLDINGS, INC. | ||||||
By: | ||||||
Chief Executive Officer |
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ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in and for the
aforesaid Parish and State, personally came and appeared , 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 and Xxxxxxx Xxxxxxx, Chief
Executive Officer Orion Marine Group Holdings, Inc., who in their 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.
Sworn to and subscribed before me, this day of September, 2006. |
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