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L&B 14003 (R 9/97)
[LATTER & BLUM LOGO]
NET LEASE OF INDUSTRIAL PROPERTY
COMMERCIAL SALE GROUP
CORPORATE HEADQUARTERS: 800 Common Street, Suite 1000,
New Orleans, Louisiana 70112-2338 (504)525-1311
Retail/Industrial/Residential/Office Leasing/Property Management/
Robert W. Merrick Appraisal Counselling/Third Party/Relocation
PARTIES
1. Delta Terminal Incorporated (hereinafter referred to, Whether one or
more, as "Lessor") hereby leases to Red Fox Companies of New Iberia, Inc., a
division of Transcoastal Marine Services, Inc. (hereinafter referred to, whether
one or more, as "Lessee"), the following described property (include street
address, description and current zoning):
LEASED Premises
Lot 13B-1. Third Municipal District Area II, New Orleans East Industrial
Subdivision. New Orleans, LA. (See legal description attached.) Approximately
29.311 acres less portion of and, approximately 2,500 plus/minus square feet
leased to Sprint Spectrum L.P. dated December 7, 1996. Lessee shall allow
Sprint Spectrum L.P. access for maintenance and repair of communication tower,
as needed. Property is zoned "H-I" - Heavy Industrial.
IN SOLIDO LIABILITY
2. If there is more than one signatory to this lease as Lessee, each such
party shall be liable in solido for all obligations of Lessee hereunder.
TERM
3. This lease is for a term of five (5) years, commencing on January 15,
1998 and ending at midnight, January 14, 2003.
USE OF PREMISES
4. The leased Premises shall be used only for the following purposes:
industrial fabrication, business of Lessee
PERMITS
5. If Lessee shall notify Lessor within 30 days after the execution by
all parties of this lease, that Lessee has not obtained the governmental
permit(s) required to utilize the leased premises for the above stated use,
then this lease shall then be rendered null and void and in such case Lessor
shall immediately return Lessee's security deposit and/or any advanced rentals
as referenced herein. Lessee shall be required to apply for the proper permits
within five (5) working days of the execution of this lease by all parties.
SECURITY DEPOSIT
6. Lessee has deposited with Lessor, a security deposit in the amount of
$3.000.00 which is hereby pledged and in which a security interest is hereby
granted to secure the faithful performance of all obligations of Lessee under
this lease. Said deposit shall be non-interest bearing and shall not be
considered rent under this lease. Said deposit shall not be released until this
lease has terminated and it has been determined by Lessor that Lessee has
compiled with all of Lessee's obligations under this lease. If Lessee fails to
pay rent or other charges due hereunder, or otherwise defaults with respect to
any provision of this lease, lessor may use, apply or retain all or any portion
of said deposit for the payment of any rent or other charge in default or for
the payment of any rent or other sum to which Lessor may become obligated by
reason of Lessee's default, or to compensate Lessor for any loss or damage
which Lessor may suffer thereby.
RENTAL AND PLACE OF PAYMENT
7. The rental under this lease shall be Three Thousand and No/100ths
($3,000.00) Dollars per month (base rent) plus 1/12 per month of real-estate
tax bill #3-9W-9-9645-19 current year 1998 is $584.72 per month, payable in
advance. Rent for the first full calendar month of the term of this lease,
shall be payable upon execution of this
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lease by all parties, and rent for subsequent months shall be payable on the
fifteenth day of February, 1998, and on the fifteenth day of each calendar
month thereafter. All payments of rent shall be made to:
Delta Terminal Incorporated, c/o Charles Augustine
- --------------------------------------------------------------------------------
Name
P. O. Box 30492, New Orleans, LA 70190 , but
- --------------------------------------------------------------------------------
Address
Lessor may from time to time designate other persons for payment of rent by
notice to Lessee and LATTER & BLUM, INC.
EARLY OCCUPANCY
8. If Lessee occupies the property prior to the commencement date,
Lessee's occupancy of the property shall be subject to all of the provisions of
this lease. Early occupancy of the property shall not advance the expiration
date of this lease. Lessee shall pay rent and all other charges specified in
this lease for the early occupancy period.
DELAYED POSSESSION
9. Should Lessor be delayed in delivering possession of the leased
premises to Lessee on the commencement date of this lease, because of any delay
of existing occupants to vacate or because of the construction of improvements
or the making of repairs required by this lease to be made by Lessor not having
been completed, or because of any other reason not due to the design of Lessor,
this lease shall not be affected thereby and Lessee shall not be entitled to
any damages for such delay, except that Lessee shall be allowed a remission of
rent for the period prior to delivery of possession, in which case the
termination date of this lease shall remain unchanged.
UTILITY CHARGES
10. Leases shall pay all connection charges for and shall pay, directly to
the appropriate supplier, the cost of all natural gas, heat, light, power,
sewer service, telephone, water, refuse disposal and other utilities and
services supplied to the property or consumed on the premises. However, if any
services or utilities are jointly metered with other tenants, Lessor shall make
reasonable determination of Lessee's proportionate share of the cost of such
utilities and services and Lessee shall pay such share. Lessee shall pay all
costs for utilities used for air conditioning and heating, water sprinkler
service charges, and all hookups, meter installation costs, connections and
necessary deposits.
TAXES
11. As part of the consideration for this lease, Lessee shall, before they
become delinquent pay all lawful taxes, assessments, forced contributions and
other governmental charges in the nature thereof, general and special, ordinary
and extraordinary, of every kind and nature whatsoever, which may be levied,
assessed, or imposed upon the leased premises, but not further or otherwise and
not upon the income or rental thereof; provided that such taxes, assessments
and other governmental charges for the first and last years of the term of this
lease shall be prorated between Lessor and Lessee as of the dates of the
beginning and ending of this lease. Lessee shall deliver to Lessor officially
issued receipts evidencing the payment of such taxes, assessments and other
governmental charges. At Lessor's option, Lessor may pay for all such charges
pursuant to this paragraph and then bill Lessee, as additional rent immediately
due and payable, for said amounts so paid by Lessor.
Lessee may attempt to have the assessed valuation of the property reduced or
may initiate proceedings to contest the real property taxes. If required by
law, Lessor shall join in the proceedings brought by Lessee. However, Lessee
shall pay all costs of the proceedings, including any costs or fees incurred by
Lessor. Upon the final determination of any proceeding or contest, Lessee shall
immediately pay the real property taxes due, together with all costs, charges,
interest and penalties incidental to the proceedings. In no event shall Lessee
permit taxes to become delinquent.
Joint Assessment: If the premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
In the event there are taxes assessed on the portion of the property
leased to Sprint Spectrum, L.P. by the Lessor, that portion of tax will be
prorated and excluded from tax charges to the Lessee.
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ALTERATIONS OR ADDITIONS BY LESSEE
12. Lessee shall be allowed to make any alterations, additions, and/or
improvements in accordance with the Permit Status Letter of Barnes Engineering
Company and those alterations, additions and/or improvements necessary for
Lessee's intended business use without prior written consent of Lessor. Lessee
shall not be obligated at termination of Lease period to remove any or all such
alterations, additions or improvements made under this Section.
OTHER ALTERATIONS & ADDITIONS BY Lessee FOR INTENDED BUSINESS USE
13. Lessee shall not make any alterations or additions to the Leased
Premises, other then that set forth in Section 12 above, without obtaining
Lessor's prior written consent, which consent shall not be unreasonably
withheld, but any and all alterations, additions or other improvements made by
Lessee, with or without the consent of Lessor, regardless of how attached
(except movable trade fixtures and equipment), shall become the property of
Lessor upon termination of this lease, without compensation to Lessee, provided
Lessor shall have the right to require that Lessee, prior to termination of
this lease remove any or all such alterations, additions or improvements, other
than those made in accordance with Section 12 above, and restore the leased
premises to their condition at the time of the commencement of this lease,
subject to Section 12 above.
Any such alterations, additions or any other improvements or repairs
shall be made at Lessee's cost and Lessee warrants that such work shall done in
a workmanlike manner. Lessee shall provide (a) liability insurance insuring
Lessee and Lessor against liability which may arise on account of any such work
on an occurrence basis with the minimum limits herein set forth in Paragraph 17
and, (b) workmen's compensation insurance covering all persons employed,
directly or indirectly, in connection with any work performed, and covering all
employees and agents of Lessee with respect to whom death or bodily injury
claims could be asserted against Lessor Lessee, except where Lessor has
undertaken to perform a portion of or all of work to be performed under a
separate Contracting Agreement. In such case, covenants contained in validly
executed Contracting Agreement shall prevail.
RESPONSIBILITY FOR DAMAGES, INJURIES, LOSSES
14. Lessee hereby agrees that Lessor shall not be liable for injury to
Lessee's business or for any loss of Lessee's Income or for damage to the
goods, wares, merchandise or other property of Lessee, Lessee's employees,
invitees, customers or any other person in or about the premises.
INSURANCE
15. At all times during the term of this lease and as part of the
consideration of this lease, Lessee shall provide and maintain, at Lessee's
expense, the following insurance in favor of Lessor as the insured:
(a) General Public Liability Insurance, in an amount of a combined
single limit, applicable to bodily injury and property damage
of $1,000,000 per occurrence in or on the leased premises.
In the event any of said insurance coverage is subject to a
deductible clause, Lessee agrees to bear the full cost of any such
amounts deducted.
All of the foregoing insurance shall be carried with
responsible insurance companies authorized to transact business in the State of
Louisiana. Lessee shall deliver to Lessor the original policies, evidencing
such insurance, provided that if the leased premises are mortgaged during the
period of this lease, such original policies shall be delivered to the
mortgagee, if requested by the mortgagee, and losses under such policies shall
be made payable to the mortgagee, if required by the mortgage.
MUTUAL INDEMNIFY
16. Lessee shall indemnify and hold harmless Lessor from and against all
claims arising from Lessee's use of the premises, or from the conduct of
Lessee's business, or from any activity, work or things done, permitted or
suffered by Lessee in or about the premises or elsewhere and shall further
indemnify and hold harmless Lessor from and against any and all claims arising
from breach or default in the performance of any obligation on Lessee's part to
be performed under the terms of this lease, or arising from any negligence of
the Lessee, or any of Lessee's agents, contractors, or employees and from and
all costs, attorneys' fees, expenses and liabilities incurred in the defense of
any such claim or any action or proceeding brought thereon, and in case any
action or incurred in the defense of any such claim, Lessee upon notice from
Lessor, shall defend the same at Lessee's expense by counsel satisfactory to
Lessor. Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons, in, upon or about
the Premises arising from any cause except as set forth below or arising from
or in connection with any activity of or relating to the entry upon or use of
the property by Sprint Spectrum, L.C., its agents, employees, invitees,
assigns, or contractors.
Lessor shall indemnify and hold harmless Lessee from and against all
claims arising from Lessor's use of the premises, or from the conduct of
Lessor's business, or from any activity, work or things done, permitted or
suffered by Lessor in or about the premises or elsewhere and shall further
indemnity and hold harmless Lessee from and against any and all claims arising
from breach or default in the performance of any obligation on Lessor's part to
be
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performed under the terms of this lease, or arising from any negligence of the
Lessor, or any of Lessor's agents, contractors, or employees and from and all
costs, attorneys' fees, expenses and liabilities incurred in the defense of any
such claim or any action or proceeding brought thereon, and in case any action
or incurred in the defense of any such claim, Lessor upon notice from Lessee,
shall defend the same at Lessor's expense by counsel satisfactory to Lessee.
WAIVER OF SUBROGATION
17. Lessee and Lessor each hereby release and relieve the other, and waive
their entire right of recovery against the other for loss or damage arising out
of or incident to the perils insured against, which perils occur in, or about
the premises, whether due to the negligence of Lessor or Lessee or their
agents, employees, contractors and/or invitees. Lessee and Lessor shall, upon
obtaining the policies of insurance required hereunder, give notice to their
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is contained in this lease.
SIGNS BY LESSEE
18. Lessee shall have the right to erect and maintain signs advertising
Lessee's business on the interior and exterior of the leased premises, provided
that such signs shall be erected and maintained in accordance with the rules
and regulations of the properly constituted authorities. Lessee shall remove
all such signs at the expiration of this lease and shall repair any damages to
the leased Premises caused by the erection, maintenance or removal thereof.
FOR SALE AND RENT SIGNS; INSPECTION BY PROSPECTS
19. Lessor shall have the right to place the usual "For Sale" and "By
Auction" signs on the leased premises no sooner than 30 months prior to
expiration of this first five (5) year lease, and the usual "For Lease" signs
on the leased Premises during the last ninety (90) days of the term of the
lease.
RIGHT OF ENTRY BY LESSOR
20. Lessor or Lessor's duly appointed agent(s) shall have the right to
enter the leased premises at all reasonable times for the purpose of inspecting
the same provided the inspection does not interrupt the business of the Lessee.
SURRENDER OF POSSESSION
21. Upon expiration or termination of this lease, Lessee shall surrender
possession of the leased premises immediately to Lessor. Any holding over by
Lessee shall not operate, except by written agreement, to extend or renew this
lease, but in such case, Lessor may terminate Lessee's occupancy at once or may
consider such occupancy to be from month to month; and Lessee, in the event of
such holding over without Lessor's consent, shall pay triple the rent
stipulated in this lease, together with such loss or damage as may be caused
Lessor by such holding over.
MANNER OF USE
22. Lessee shall not cause or permit the property to be used in any way
which constitutes a violation of any law, ordinance, or governmental regulation
or order, or which, annoys or interferes with the rights of other tenants, if
any, of the development of which the property is part, or which constitutes a
nuisance or waste. Lessee shall obtain and pay for all permits, including a
Certificate of Occupancy, required for Lessee's occupancy of the property and
shall promptly take all substantial and non-substantial actions, necessary to
comply with all applicable statutes, ordinances, rules, regulations, orders and
requirements regulating the use by Lessee of the property, including the
Occupational Safety and Health Act. No auction sales or other sales not in the
ordinary course of Lessee's business shall be conducted on the leased Premises,
without the prior written consent of Lessor.
DEFAULT
23. If Lessee falls to pay any installment of rent due under this lease,
or fails to comply with any other provision of this lease within ten (10) days
after notice by Lessor to Lessee demanding same, provided that said notice need
not be given with regard to nonpayment of rent after such notice has been given
twice during the period of this lease, or if Lessee abandons the leased
premises or discontinues the use of the leased premises for the purpose for
which leased, or removes from the leased premises any property against which
Lessor is entitled to a lessor's lien, or makes an assignment for the benefit
or creditors or is adjudged a bankrupt in an involuntary bankrupt proceeding,
or files any type of proceeding, or applies for any relief under the laws of
the United States relating to bankruptcy, or State laws relating to insolvency
or if a receiver or other custodian is appointed for Lessee for any of Lessee's
property by any court, then in any of such events, Lessor, shall have the
right, at Lessor's option, without putting Lessee in default and without notice
to vacate, notice of default, (1) to cancel this lease effective immediately or
effective as of any date Lessor may select, or (2) to proceed one or more times
for past due installments of rent only, without prejudicing the right to
proceed later for additional installments or exercise any other remedy, or (3)
to declare the unpaid rent for the entire unexpired term of this lease
immediately due and payable and at once demand and receive payment hereof, or
(4) to have recourse to any other remedy or mode of redress to which Lessor may
be entitled by law. In the event Lessor exercises the right to cancel this
lease, then (a) Lessor shall have the right,
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as soon as said cancellation is effective, to re-enter the leased premises and
to re-let the same for such price and on such terms as may be immediately
available, without notice or court proceedings, Lessee hereby assenting thereto
and expressly waiving any notice to vacate, and (b) Lessee shall be and remain
liable not only for rent payable to the date such cancellation becomes
effective, but also for all damage or loss suffered by Lessor for the remaining
term of this lease resulting from such cancellation. Failure of Lessor to
exercise any right granted in this paragraph shall not be construed as a waiver
of the right and no indulgence by Lessor shall be construed as a waiver of any
right herein granted.
NOTICES
24. Any notice or other communication required or permitted to be given
under this lease by Lessee to Lessor shall be in writing and shall be delivered
in person or sent by United States Certified or Registered Mail, postage
prepaid, return receipt requested, and addressed to Lessor at the place where
rent is required to be paid hereunder. Any notice or other communication
required or permitted to be given under this lease by Lessor to Lessee shall be
in writing and shall be delivered in person or sent by United States Certified
or Registered Mail, postage prepaid, return receipt requested, addressed to
Lessee at the leased premises. Each notice or communication shall be deemed to
have been given as of the date so mailed or delivered, as the case may be.
Either party may designate a substitute address by written notice to the other
party and to Latter & Blum, Inc. in the manner herein provided.
PARTIAL INVALIDITY
25. If any provision of the lease or application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this lease or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby and each provision of this lease shall be valid and
enforceable to the fullest extent permitted by law.
SUBLEASING OR ASSIGNMENT
26. Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or otherwise transfer or encumber all or any part of Lessee's
interest in this lease or in the premises, without Lessor's prior written
consent, which Lessor shall not unreasonably withhold. Lessor shall respond to
Lessee's request for consent hereunder in a timely manner and any attempted
assignment, transfer, mortgage, encumbrance or subletting without such consent
shall be void and shall constitute a breach of this lease.
Any such sublease shall contain all the provisions of this lease to
the extent applicable and provided further Lessee shall not be relieved by any
such subleasing or assignment of Lessee's obligation to pay rent herein
stipulated or any other obligations of Lessee under this lease. Any such
subleasing or assignment shall be handled by Latter & Blum, Inc. and Lessee
shall pay to Latter & Blum, Inc. for such handling, a commission as set forth
in paragraph 27, subparagraph 1 substituting Sublessor for Lessor, Sublessee
for Lessee and Sublease for Lease.
Regardless of Lessor's consent, no subletting or assignment shall
release Lessee of Lessee's obligation or alter the primary liability of Lessee
to pay the rent and to perform all other obligations to be performed by Lessee
hereunder. The acceptance of rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignments or subletting. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without the necessity of exhausting
remedies against said assignee. Lessor may consent to subsequent assignments or
subletting of this lease or amendments or modifications to this lease with
assignees of Lessee, without notifying Lessee, or any successor of Lessee, and
without obtaining its or their consent thereto and such action shall not
relieve Lessee of liability under this lease.
COMMISSION
27. In consideration for its service put forth in negotiating this lease,
furnishing representation and/or bringing Lessor and lessee together, Lessor
acknowledges that Latter & Blum, Inc. has earned a commission for said
services, which commission is earned upon the execution of this lease and is to
be paid by Lessor in accordance with subparagraph 1 below. Lessor further
agrees to pay the same percentage commission, payable in like manner under any
and all renewals, extensions, expansions or new leases made with the herein
stated Lessee or any sublessee, nominee or assignee thereof; provided that if
this lease is canceled or terminated by mutual agreement of Lessor and Lessee
without the written consent of Latter & Blum, Inc., and the commission on rents
payable during the unexpired term thereof has not been paid in full, Lessor
shall immediately upon such cancellation or termination pay to Latter & Blum,
Inc. a commission of 6% of such rents.
1. A cash commission of 6% of the scheduled gross rentals under
this lease, to be paid annually in advance.
Notwithstanding any of the foregoing, commissions on
percentage rents or such other rent escalations whereby the
amount of the escalation is to be determined by a future
variable, shall be payable when such percentage rents or other
escalations become known.
Any commission payable to Latter & Blum, Inc. by Lessor or Lessor's
agent that is not paid when due shall accrue interest at the maximum rate then
allowable by law from date due until paid.
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PAYMENT OF COMMISSIONS IF PROPERTY SOLD
28. Lessor agrees that if the property covered by this lease is sold or
transferred during the term hereof or during the term of any renewal or
extension hereof or during the term of any new lease hereafter entered into,
Lessor will either pay any and all unpaid rental commissions to which Latter &
Blum, Inc. is entitled as herein provided or will have the purchaser or
transferee expressly assume the payment thereof in writing. If the purchaser or
transferee does not so assume the payment of all of said unpaid commission,
Lessor (a) will, upon the sale or transfer of said property, pay to Latter &
Blum, Inc, a commission of 6% of the rents payable during the remaining term of
this lease or any renewal, extension, or expansion thereof or any such new
lease, as the case may be, and (b) will, upon execution of any renewal,
extension or expansion of this lease subsequent to said sale or transfer, pay
to Latter & Blum, Inc. a, commission of 6% of the rents payable under such
extension, renewal or expansion and (c) will, upon execution of any new lease
with Lessee, or any sublessee, nominee or assignee thereof, subsequent to said
sale or transfer, covering the leased premises or any part thereof, pay to
Latter & Blum, Inc. a commission of 6% of the rents payable under such new
lease; provided that as to (a), (b), and (c), the commission on any percentage
rents or such other rent escalations whereby the amount of the escalation is to
be determined by a future variable, shall be payable when such percentage rents
or other escalations become known.
COMMISSION ON SALE OF LEASED PREMISES TO LESSEE, OR SUBLESSEE OR ASSIGNEE
29. If the leased premises or any larger property to which the leased
premises form a part is sold to the Lessee hereunder (or any nominee, sublessee
or assignee thereof), during the term of this lease, or during any renewals or
extensions thereof, or within one (1) year after the expiration of this lease
or any renewal, Lessor shall promptly upon such sale pay to Latter & Blum, Inc.
a commission of 6% of the sale price. Latter & Blum, Inc. shall receive such
commission in full and there shall be no participation with regard thereto with
any other real estate agent or broker. The provisions of this paragraph shall
also apply to any exchange of properties, in which case the commission shall be
6% of the market value of said property at the time of the Act of Sale.
RELEASE OF LESSOR ON SALE
30. Upon a sale or transfer of the leased premises, by Lessor or a
subsequent purchaser or transferor thereof, the purchaser or transferee by
virtue of such sale or transfer shall be bound for the performance of all of
Lessor's agreements and obligations under this lease, and the vendor or
transferor shall thereupon be released from any and all liability thereafter
arising under this lease, except that the Lessor's or subsequent transferor's
obligations with respect to commissions shall be as stipulated in Paragraph 28
herein.
LATE CHARGES
31. If Lessee fails to pay any rental payment due hereunder within five
(5) working days of when same is due and payable, then Lessee shall also owe to
Lessor, as a late charge in addition to the amount due, six (6%) percent of the
amount due. Acceptance of such late fee by Lessor shall not be construed as a
waiver of Lessor's right to enforce any other remedies with respect to any
other provisions of this lease.
PAST DUE COMMISSIONS
32. With respect to the commission payable by Lessor to Latter & Blum,
Inc. in connection with and as provided in this lease, Lessor does hereby make
the following stipulations, agreements and provisions for the benefit of Latter
& Blum, Inc., which shall not be dissolved, revoked or amended without the
prior written consent of Lessor, Lessee and Latter & Blum, Inc. in the event
that Lessor, its successors or assigns shall at any time fall to pay the said
commission to Latter & Blum, Inc. within thirty (30) days after the date when
the said commission shall become due, then Latter & Blum, Inc. may give written
notice of such default to both Lessor and Lessee, by certified mail, return
receipt requested, at the address of said parties set forth in this lease, or
at such other address as shall from time to time be furnished to Latter & Blum,
Inc. by Lessor or Lessee. If the said default shall not be cured and the said
commission paid to Latter & Blum, Inc. within fifteen (15) days after the date
of such written notice, then upon the further written demand of Latter & Blum,
Inc. to Lessee, Lessor and Lessee promise and agree that when the next monthly
rent installment thereafter is due hereunder, Lessee shall pay the same to
Latter & Blum, Inc. and Lessee shall continue to pay the subsequent monthly
rent installments due hereunder to Latter & Blum, Inc. until such time as the
total of all the said rent payments made by Lessee to Latter & Blum, Inc. as
aforesaid equals the amount of the unpaid commission then due and owing to
Latter & Blum, Inc. under this lease. Lessee shall be entitled to a credit,
offset and deduction against the amount of the rent due and payable hereunder
to Lessor for the amount of such rent paid by Lessee to Latter & Blum, Inc. as
aforesaid. The payment by Lessee to Latter & Blum, Inc. of the said rental
amount as aforesaid, shall in no way constitute a default by Lessee under this
lease of its obligation to pay rent or otherwise, Lessor and Lessee hereby
agree and acknowledge that Latter & Blum, Inc. has manifested its intention to
avail itself of the foregoing benefits, stipulations and provisions and that
Latter & Blum, Inc. shall be deemed to be a third party beneficiary with
respect to the provisions of this paragraph. Lessee expressly acknowledges all
of the foregoing stipulations, agreements and provisions and hereby agrees
thereto. The provisions of this paragraph shall be binding upon and shall inure
to the benefit of the successors and assigns of Lessor and Lessee.
ATTORNEY'S FEES
33. Should an attorney be engaged by Lessor to enforce payment of the rent
due under this lease or to protect any of the interests of Lessor hereunder,
with or without judicial proceedings, Lessee agrees to pay Lessor the
reasonable fee of such attorney, which fee is hereby fixed, if the collection
of money is involved, at 25% of the amount of such money, such fee in no event
to be less than $200.00, and Lessee also agrees to pay all court costs and
other expenses incurred by Lessor. In the event that it becomes necessary for
Latter & Blum, Inc. to engage
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the services of any attorney to protect its rights hereunder, the party at
fault shall pay Latter & Blum, Inc. the reasonable fee for such attorney,
together with all costs and expenses reasonably incurred by Latter & Blum, Inc.
in protecting its rights.
Should an attorney be engaged by Lessee to protect any of the
interests of Lessee hereunder, with or without judicial proceedings, Lessor
agrees to pay Lessee the reasonable fee of such attorney, which fee is hereby
fixed, if the collection of money is involved, at 25% of the amount of such
money, such fee in no event to be less than $200.00, and Lessor also agrees to
pay all court costs and other expenses incurred by Lessee. In the event that it
becomes necessary for Latter & Blum, Inc. to engage the services of an attorney
to protect its rights hereunder, the party at fault shall pay Latter & Blum,
Inc. the reasonable fee for such attorney, together with all costs and expenses
reasonably incurred by Latter & Blum, Inc. in protecting its rights.
ESTOPPEL CERTIFICATE
34. Lessee, shall at any time upon not less than ten (10) days prior
written notice from Lessor, execute, acknowledge and deliver to Lessor a
statement in writing (a) certifying that this lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification, and
certifying that this lease, as so modified, is in full force and effect) and
certifying the date to which any rent and other charges, if any, have been paid
in advance, and (b) acknowledging that there are not, to Lessee's knowledge,
any uncured defaults on the part of Lessor hereunder, or specifying such
defaults if any are claimed,
At Lessor's option, Lessee's failure to deliver such statement within
such time may be considered by Lessor as a default under this lease, or shall
be conclusive upon Lessee (a) that this lease is in full force and effect,
without modification except as may be represented by Lessor, (b) that there are
no uncured defaults in Lessor's performance, and (c) that not more than one
month's rent has been paid in advance.
SUBORDINATION
35. Lessee agrees that Lessee will at any time, upon demand of Lessor,
subordinate this lease to the lien of any mortgage or mortgages which Lessor
has placed or may hereafter place on the leased Premises, provided that in any
such mortgage the mortgagee shall agree, for itself and for each and every
subsequent owner or holder of the mortgage and mortgage note and for any
receiver or purchaser of the leased premises in the event of foreclosure, that
Lessee's peaceable and quiet possession of the leased premises will not be
disturbed on account of such mortgage or by reason of anything done or caused
to be done thereunder, so long as Lessee pays the rents reserved under this
lease and keeps the covenants, agreements and stipulations of this lease on the
part of Lessee to be kept.
AGENT'S SERVICE
36. Latter & Blum, Inc. has negotiated this lease and in doing so has
rendered valuable services, for which reason only it is made a party hereto in
order to enable it to enforce its commission rights hereinabove set forth.
ENTIRE AGREEMENT
37. The whole agreement between the parties hereto is set forth in this
instrument and they shall not be bound by any agreements, conditions,
understandings or representations unless expressly stipulated and set forth
herein or in any amendments hereto. Except as may otherwise be provided herein,
no subsequent alteration, amendment, change or addition to this lease shall be
binding upon the parties hereto unless reduced to writing and signed by them.
TYPEWRITTEN AND HANDWRITTEN PORTIONS
38. If there is any conflict between the printed portions and the
typewritten or handwritten portions of this lease, the typewritten or
handwritten portions shall prevail.
SERVITUDES AND RESTRICTIONS
39. Lessor reserves to itself the right, from time to time, to grant such
easements, rights and dedications that Lessor deems necessary or desirable, and
which will not interrupt the business operation of Lessee. Lessor will be
responsible to cause the recordation of servitudes and restrictions, so long as
such easements, rights dedications, servitudes and restrictions do not
interfere with the use of the Premises by Lessee.
Lessee shall have the right of approval for any such easements, rights
and dedications that Lessor deems necessary and desirable, and which approval
will not be unreasonably withheld.
WAIVER OF COVENANT
40. Failure of Lessor to require strict performance by Lessee of any of
the covenants, provisions or conditions of this lease, on one or more
occasions, shall not constitute a wavier by Lessor of the right thereafter to
require strict compliance with said covenants, provisions and conditions.
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SHORT FORM OF LEASE
41. Either Lessor or Lessee shall, upon request of the other, execute,
acknowledge and deliver to the other a "short form" memorandum of this lease
for recording purposes. Latter & Blum, Inc. shall not be obligated to record
this lease.
SUCCESSORS AND ASSIGNS
42. All of the provisions contained herein shall be binding upon and
shall inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors, assigns and nominees.
NO DISCRIMINATION
43. Lessor promises, and it is a condition to the continuance of this
lease, that there will be no discrimination against, or segregation of, any
person or group of persons on the basis of race, color, sex, religion, national
origin or marital status in the leasing, subleasing, transferring, occupancy,
tenure or use of the property or any portion thereof.
APPLICABLE LAW
44. This lease shall be deemed to be a contract made under the laws of the
State of Louisiana and shall be construed in accordance with and governed by
the laws of the State of Louisiana and ordinances of the municipality and
parish where the leased premises are situated and the rules and regulations of
their duly constituted authorities.
CORPORATE OR PARTNERSHIP LESSEE
45. If Lessee is a corporation, each person signing this lease on behalf
of Lessee represents and warrants that he has full authority to do so and that
this lease binds the corporation. Within thirty (30) days after this lease is
signed, Lessee shall deliver to Lessor a certified copy of a resolution of
Lessee's Board of Directors authorizing the execution of this lease or other
evidence of such authority reasonably acceptable to Lessor. If Lessee is a
partnership, each person signing this lease for Lessee represents and warrants
that he is a general partner of the partnership, that he has full authority to
sign for the partnership and that this lease binds the partnership and all
general partners of the partnership. Lessee shall give written notice to Lessor
of any general partners withdrawal or addition. Within thirty (30) days after
this lease is signed, Lessee shall deliver to Lessor a copy of Lessee's
recorded statement of partnership or certificate of limited partnership.
LESSEE RIGHT OF EXTENSION
46. Provided rent is paid and current, the Lessee shall be allowed to
extend the lease for an additional five (5) year term commencing January 15,
2003 if Lessee notifies Lessor and Lessor's agent in writing of the Lessee's
intent to extend the leases ninety (90) days prior to the expiration of this
lease. The base monthly rent shall be increased in accordance to the CPI
increase from January 15, 1998 to commencement of extension date.
The Lessee shall be allowed an additional lease extension of five (5)
years commencing January 15, 2008 provided Lessee is not in default and rent is
paid and current at time of extension. Lessee must notify Lessor and Lessor's
agent in writing prior to ninety (90) days of then current lease term
expiration date. Rent shall be based on increase of CPI from January 15, 2003
to commencement of lease extension January 15, 2008.
DUE DILIGENCE
47. This lease is subject to the "permit status" letter dated December 12,
1997, from Donald A. Barnes of Barnes Engineering Company to Alan L. Moore of
Red Fox Companies of New Orleans. Copy of letter is attached and made part of
this lease.
Lessee, at Lessee's cost and expense, shall have Environmental Phase I
assessment conducted on leased site within sixty (60) days from commencement of
lease and shall be satisfied with the report thereto, as part of due diligence.
LESSEE RIGHT TO CANCEL
48. This lease may be cancelled by Lessee if Lessee is not allowed to
conduct Lessee's business as intended by U.S. Army (CORP) of Engineers or
other governmental agencies and which cause of action by governmental agencies
cannot be reversed or corrected by Lessor.
RIGHT TO PURCHASE
49. Lessee shall be given the exclusive right to purchase the leased
property at any time during the first 30 months of the five (5) year lease term
for $530,000 cash payable to Lessor/Vendor. Sale shall be made subject to lease
with Sprint Spectrum, L.C. and shall include land leased to Sprint Spectrum,
L.C.
COMMISSION -- SALE TO LESSEE
Net Lease of Commercial Property Page 8 of 9
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[ILLEGIBLE]
/s/ [ILLEGIBLE]
--------------------------------------
Lessor: Delta Terminal Incorporated
Latter & Blum, Inc. hereby agrees to and accepts the commission provisions
contained in the foregoing agreement, this _________________________________.
Date
LATTER & BLUM, INC.
By:
------------------------------------
Manager
IN SOLIDO OBLIGATION AND GUARANTY
For value received and to induce the lessor and lessors (hereinafter
referred to as "Lessor") to enter into the foregoing lease, the undersigned
hereby makes himself or itself a party to said lease and binds himself or
itself in solido with the lessee or lessees under said lease (hereinafter
referred to as "Lessee") for the faithful performance and fulfillment by Lessee
of all of Lessee's agreements and obligations contained in said lease and
guarantees to Lessor and Lessor's heirs, executors, administrators, successors
and assigns, the punctual payment of all rents due under said lease and the
performance of all other agreements and obligations of Lessee contained in said
lease; the undersigned consenting to extensions of payment of rent by Lessor
and other indulgences by Lessor to Lessee and amendments and modifications
entered into between Lessor and Lessee regarding said lease, and waiving any
and all requirements of notice of demand, nonpayment, non-performance, or
dishonor and all other requirements of law.
Dated ____________________, 19__.
----------------------------------------
In Solido Obligor and Guarantor
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ADDENDUM I
REAL ESTATE COMMISSION LEASE AND SALE
This lease agreement between Delta Terminal Incorporated, As Lessor, and Red
Fox Companies, of New Iberia, Inc., a division of Transcoastal Marine Services,
Inc. as Lessee, is hereby amended regarding paragraphs 27, 28, 29, 32 and 50 to
reference that the Lessee/Vendee shell be responsible to pay any and all real
estate commissions to Latter & Blum, Inc./Realtors as referenced thereto.
Lessor: Lessee:
Delta Terminal Incorporated Red Fox Companies of New Iberia, Inc.
a Division of
Transcoastal Marina Services, Inc.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
- ------------------------------------ -------------------------------------
Date: 1-16-98 Date: 1-16-98
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