exhibit1028.htm


    Exhibit 10.28

    
 

    LEASE

    LEASE
AGREEMENT effective as of the 1st day of September, 2009,
between F. MILLER CONSTRUCTION, L.L.C. (Fed. Tax Id. No.205538311) as lessee ("Lessee") and WEST
CALCASIEU PORT referred to as lessor ("Lessor") ..

     

    WITNESSETH

     

    ARTICLE
I

    LEASED
PREMISES

     

    Lessor does hereby demise and lease
until Lessee, and Lessee does hereby hire and take from Lessor those certain
premises (the "Leased Premises") described in Exhibit "A" attached hereto
and made a part hereof. 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 prior consent or approval of any third party.

     

    ARTICLE
II

    TERM

     

    The
primary term of this Lease shall commence the 1ST DAY OF September, 2009, and
shall continue until the 1st day of September, 2014,
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 give 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.

    __

    ARTICLE
III

    RENT

    


    (a)
Amount. Lessee shall pay rent to the Lessor as follows, to-wit:

    (1) An
initial payment of Twenty-five Thousand and no/lOO ($25,000.00) Dollars to be
paid at the commencement of this lease;


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (2) The
amount of Eight Thousand and no/100 ($8,000.00) Dollars per month for the first
twenty-four (24) months of this lease;

    (3) The
amount of Nine Thousand and no/100 ($9,000.00) Dollars for the twenty-fifth
(25th) month of this lease;

    (4) The
amount of Ten Thousand and no/100 ($10,000.00) Dollars per month for the
remaining thirty-five (35) months of the primary term of this lease;
and

    (5) As
additional consideration for this lease, Lessee shall make certain improvements
to the leased premises, the waterfrontage of the leased premises and the
adjacent water body as set forth in Exhibit "B" at­tached hereto and made a
part hereof. Such improvements shall be completed by Lessee during the first
thirty-six (36) months of the primary term of this lease.

    (b) Lessor's Duties. The
Lessor shall not be responsible for any maintenance of the Leased
Premises.  If a repair or replacement, not occasioned

    


    


     (b)
Address for Payment: Each rental payment shall be made payable to the following
person and delivered to it at the following address: 

           West
Calcasieu Port

            c/o Ms.
Darla Perry, CPA

            514
West Napoleon Street

            Sulphur, Louisiana
70663

     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

     

    Lessee
agrees to pay for all of the utility expenses, including electrical, water and
waste collection, which are related to the Leased Premises. Lessee agrees all
utilities will be listed in the name of the Lessee and billed to
Lessee.

     

    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.  If a repair or replacement, not occasioned by a
casualty, is required and will exceed Ten Thousand and no/IOO ($10,000.00)
Dollars 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.

     

     (c)
No Representations 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 Expropriations. 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 costs, 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 Lease 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 $1,000,000.00 per accident, and excess/umbrella liability coverage in
the amount of $10,000,000.00;


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    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
theron, or any act or omission of Lessee, its agents, employees contractors,
licensees, 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.
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
therefore 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 the Lessee set forth herein shall, to the extent of the
obliga­tions
therein expressed, constitute an assumption of responsibility for the
Leased Premises within the meaning of LSA-R.S. 9:3221 or other applicable
law. 


     

    (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 $150,000.00 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, yard and maintenance facility 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 or local law, rule,
regu­lation
and/or order dealing with Hazardous Substances, Pollutants or
Con­taminants.

     

    Lessor
and Lessee acknowledge and agree that the Lease Premises
have  heretofore
been occupied by Lessor or its assigns. Notwithstanding any
provi­sion to
the contrary contained herein, in no event shall Lessee be liable
for

    any
acts or omissions of Lessor or an prior tenant or occupant, nor for
the

     

     

    ARTICLE
X

    ASSIGNMENT

    Lessee
has the right to sublease the Leased Premises only with the prior written
consent of Lessor.

     

     

    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 quite 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 Lesseeshall 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 consitute a default by Lessee:

    


    (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.

     

    (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 insta11­menta;
and/or

    (3) To
accelerate the rental for the unexpired term of the Lease.

    However,
Lessor agrees that in the event of any default other than the default described
in (a)(l) 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 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 con­stitue 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%) per cent per annum until paid. Such
performance by the Lessor shall not
constitute a waiver 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 en­

    force 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 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:

     

        West
Calcasieu Port

        514 West
Napoleon Street

        Sulphur,
Louisiana 70663 

     

    If to the
Lessee:

    F. Miller Construction, LLC

    Attn:    Mr. Mark Stauffer

           Vice President

           12550 Fuqua

           Houston, Texas  77034

    and

    F. Miller Construction, LLC

    Attn:    Mr. Mark Korkowski

           825 Ryan Street

           Lake Charles, LA  70601


    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 re­

    mainder
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 in this Lease. 

     

    ARTICLE
XVII

    CAPTIONS

     

    The
captions or headings in this Lease are for convenience only and in no way
define, limit or describe 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

     

    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.

     

    ARTICLE
XXI

    RENT
ADJUSTMENT

     

    (a) In
the event of the renewal of this Lease by Lessee, the rent shall increase over
the amount paid during the previous lease period by a percentage
equal to the percentage increase in the Consumer Price Index (CPI)

    between
the day of the beginning of the previous period and the day of
begin­ning
of the renewal period. If a consumer price index number is not available
for any
such day, the number to be used shall be the number on the last pre­ceeding
day on which it was available provided the CPI still is being published and
calculated in the same way as at the effective date of this Lease.

    


    (b) CPI
shall mean the Consumer Price Index for Urban Wage Earners and Clerical Workers
published by the United states Department of Labor, Bureau of Labor Statistics,
for the Chicago, Illinois area, sUbgroup All Items (1982­1984=100)
•

    


    (c) If
the manner in which the CPI is determined by the Bureau of Labor Statistics
shall be substantially revised, including without limitation, a change in the
base index year, an adjustment shall be made by the Lessor in such revised index
which would produce results equivalent, as nearly as possi­ble, to those
which would have been obtained if such COP had not been so revised. If the CPI
should become unavailable to the public because publication is
dis­

    continued,
or otherwise, Lessor shall select a substitute index that most closely
approximates the above referenced index, as reasonably determined by
Lessor.

     

    ARTICLE XXII

     USE AND MAINTENANCE OF PORT
ROAD

     

    Lessee
shall have the non-exclusive use of the Port road that runs through the Leased
Premises. Lessee covenants to use its best efforts to avoid damage to the road
and understands that it will be responsible for any damage caused by its
negligence. With the exception of any damage caused by Lessee's negligence.
Lessor shall be responsible for the maintenance of the road. Lessor shall have
the right to extend the road eastward in order to

    access
the Lessor's property on the east side of the Leased Premises.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
parties hereto have caused these presents to be duly signed on the dates shown
below:

     

     

    WITNESSES:                               WEST CALCASIEU PORT

    /s/ Glen A. James                               /s/ Brent Clement, President

     

    /s/ Cheryl M. McLeod                            Date:  9/3/09

     

     

    WITNESSES:                               F. MILLER CONSTRUCTION, L.L.C.

    /s/ Mark Korkowski                               /s/ Mark Stauffer, Vice President

     

    /s/ Nannette LaFleur                            Date:  9/8/09