EXHIBIT 6.4
LEASE/PURCHASE AGREEMENT
THIS LEASE/PURCHASE AGREEMENT is made and entered into this 28th day of
February, 1999 by and between TRIMAC BULK TRANSPORTATION, INC., an Alabama
corporation, 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("LESSOR/SELLER")
AND FLEETCLEAN SYSTEMS, INC., a Texas corporation. Xxxxxxx 000 X. Xxxxxx, Xxxxx
00000 ("LESSEE/PURCHASER").
WITNESSETH:
WHEREAS, LESSOR/SELLER desires to lease and sell the premises hereinafter set
forth upon the terms and conditions set forth herein; and
WHEREAS, LESSEE/PURCHASER desires to lease and purchase such property from
LESSOR/SELLER:
Now, therefore, in consideration of the mutual covenants and undertakings set
forth, the parties hereby agree as follows:
1. PREMISES
LESSOR/SELLER hereby leases and sells to LESSEE/PURCHASER and
LESSEE/PURCHASER hereby agrees to lease and purchase the following described
premises:
66,000 sq. ft. (1.52 acres) rectangular parcel
having 400' on Scorpio Street and a depth of
165' located in the St. Xxxxxxx Industrial Park in
Hahnville, Louisiana. The property contains a 7,399
sq. ft. building with two service bays and one
trailer cleaning bay. The building contains a
finished office area of 508 sq. ft. plus a finished
mezzanine with an eating area and shower facility.
The site has 52,844 sq. ft. of 6" reinforced
concrete paving and the property is enclosed by
1130' of chain link fencing with two chain link
rolling gates. The property is not affected by an
easement, servitude, or encroachment. The Premises
are described in EXHIBIT A, a survey drawing
attached hereto.
2. RENT AND PURCHASE PRICE
The LESSEE/PURCHASER shall pay to LESSOR/SELLER as fixed rent for each month
of the term of the Lease $2,500 in advance on the first day of each month
beginning on June 1, 1999 plus $2,500 in advance on the first day of each
month beginning on June 1, 1999 for a total of $5,000.00 each month. It is
understood and agreed that the monthly sum of $2,500 is to be placed in
escrow with the LESSOR/SELLER for each month same is paid and at the Closing
of the purchase of the Premises. March 1, 2004, all of the payments held in
escrow by LESSOR/SELLER will be credited to the balance of the purchase price
then due LESSOR/SELLER by LESSEE/PURCHASER. The moneys held in escrow by
LESSOR/SELLER will earn interest at the annual rate of 6% simple interest
which interest will also be credited to the balance of the purchase price due
at Closing. The Purchase price for the Premises is $450,000, the rent is
$2,500 per month and the monthly credit towards the purchase price is $2,500
per month. At the Closing, the Purchase price (less any applicable credits
for monthly pre-payments and the xxxxxxx money deposit plus interest earned
thereto) will be paid to LESSOR/SELLER in cash.
3. PAYMENTS
All payments of rent and purchase shall be furnished to LESSOR/SELLER at the
following address: TRIMAC BULK TRANSPORTATION, INC., 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000. No demand of rent or purchase deposit money need
be made at any time on the Premises or elsewhere, but it shall be the duty
of LESSEE/PURCHASER to pay same, as moneys generally due without demand.
4. XXXXXXX MONEY DEPOSIT
LESSEE/PURCHASER shall deposit with LESSOR/SELLER on March 1, 1999, the
commencement date of this Lease/Purchase, $22,500 as an xxxxxxx money
deposit, $11,250 of which shall be forfeited by LESSEE/PURCHASER if this
Lease/Purchase Agreement is canceled after any twelve (12) month period
prior to March 1, 2004, and the balance of $11,250 will be returned to
LESSEE PURCHASER at the end of any such twelve month period. If the full
term of the Lease/Purchase Agreement is completed and the Closing takes
place on March 1, 2004, the entire xxxxxxx money deposit will be credited to
the purchase price due LESSOR/SELLER at Closing. The xxxxxxx money deposit
will earn interest at the annual rate of 6% simple interest which interest
will also be credited to the balance of the purchase price due at Closing.
5. TERM OF LEASE
The commencement of the term of this Lease/Purchase shall be March 1, 1999
and it ending February 29, 2004. At the end of any twelve (12) month period
prior to February 29, 2004, LESSEE/PURCHASER shall have the option and
right to terminate this Lease/Purchase and will forfeit one-half of the
xxxxxxx money deposit or $11,250 plus interest plus all of the monthly
payments of $2,500 paid toward the purchase price plus any interest earned.
It is agreed that the LESSEE/PURCHASER may occupy the premises on March 1,
1999 providing the payment of $22,500 xxxxxxx has been made to LESSOR/SELLER
and no monthly rent or purchase credit will be due LESSOR/SELLER until June
1, 1999, the first ninety (90) days of the Lease/Purchase, therefore, being
rent free. The balance of the Term will be fifty-seven (57) months with the
total rental and purchase price credit totaling $5,000 per month commencing
on June 1, 1999 and continuing through February 29, 2004. It is mutually
understood and agreed that this Lease/Purchase may be terminated by
LESSEE/PURCHASER if it is unable to obtain the permits necessary for the
operation and intended use of the Premises. Written notice of
LESSEE/PURCHASER'S inability to obtain such permits shall be given to
LESSOR/SELLER as soon as possible after LESSEE/PURCHASER is provided written
notice of its inability to obtain such permits. LESSOR/SELLER is to be given
satisfactory official proof from the applicable regulatory authority of the
denial of LESSEE/PURCHASER'S application for such necessary permits by each
applicable regulatory and/or governmental authority. Should LESSEE/PURCHASER
be unable to obtain such permits during the first sixty (60) days of this
Lease/Purchase term, then this Lease/Purchase will terminate and neither
party shall have any further liability to the other hereunder.
6. USE OF THE PREMISES
The Premises shall be used by LESSEE/PURCHASER for the following purposes
and for no other purpose without the prior written consent of LESSOR/SELLER,
which consent shall not be unreasonably withheld; a commercial trailer
cleaning facility and repair garage and storage facility for trailers and
for parking of trucks, trailers and automobiles, and commercial activities
reasonably related thereto. LESSOR/SELLER covenants and warrants that is has
good and marketable title to the Premises and full right to lease and sell
same.
7. OBLIGATIONS OF LESSOR/SELLER
At the commencement date of this Lease/Purchase, and throughout the term of
this Lease/Purchase, the LESSOR/SELLER shall have the following obligations
and responsibilities:
7. OBLIGATIONS OF LESSOR/SELLER (cont'd.)
A. LESSOR/SELLER shall be responsible for maintaining or causing to be
maintained a policy of all-risk insurance for the building and
Premises against fire and other perils as are normally covered by
such policies in an amount at least equal to the replacement costs
thereof. Risk of loss shall at all times be upon the LESSOR/SELLER.
B. LESSEE/PURCHASER agrees, at its expense, to maintain liability
insurance naming LESSOR/SELLER and LESSEE/PURCHASER as insureds,
against liability for accidents, bodily injury, death or property
damage, in a total amount of not less than $5,000,000.
X. XXXXXX/SELLER will pay all real estate taxes due throughout the
term of the Lease/Purchase.
X. XXXXXX/SELLER warrants that all underground storage tanks have been
removed from the Premises and that the removal has been approved by
the responsible regulatory agency of the State of Louisiana.
Evidence of such approval shall be provided to LESSEE/PURCHASER at
its request. Throughout the term of this Lease/Purchase,
LESSOR/SELLER agrees to indemnify LESSEE/PURCHASER and its
directors, officers, employees, invitees, agents and sub-lessees
from and against any and all liability, loss, cost or expense,
including without limitation, the fees and expenses incurred in
defending any claim or action arising out of, related to or
otherwise concerning the existence on the Premises of all
underground storage tanks and such indemnification shall survive
the termination of this Lease/Purchase for two (2) years subsequent
to the Closing of the purchase of the Premises by LESSEE/PURCHASER.
8. OBLIGATIONS OF LESSEE/PURCHASER
Beginning March 1, 1999, the date of the commencement of this
Lease/Purchase and the date that LESSEE/PURCHASER occupies the Premises, the
LESSEE/PURCHASER shall assume the following obligations and
responsibilities:
A. LESSEE/PURCHASER shall assume responsibility for all maintenance to
the Premises, including paved areas, outside lighting, utility
lines and including, without limitation, maintaining the following
systems in good working order: heating, plumbing, air conditioning
and electrical systems, and overhead doors, to keep the roof water
tight and also the building and bays free from entry of rain and
ground water and to maintain the grounds and installed fencing in
good condition and the rolling gates in good working order.
B. To pay for all utilities, including gas, water, electricity and
telecommunications equipment, including telephones.
C. To return the Premises at any termination of the Lease/Purchase as
hereinabove provided in as good order as received, ordinary wear
and tear and natural decay excepted, unless improvements shall be
destroyed by lightning or other natural causes or fire not caused
by LESSEE/PURCHASER'S fault and throughout the term hereof not to
erect or permit to be erected on the Premises any nuisance nor to
commit any waste of the Premises.
D. DAMAGE OR DESTRUCTION TO PREMISES
(a) If the Premises or any part thereof are destroyed, damaged or
rendered unusable by fire or other casualty, LESSEE/PURCHASER
shall give LESSOR/SELLER notice thereof and if repairs are
not commenced to be undertaken by LESSOR/SELLER within sixty
(60) days from the date of destruction or damage (and
thereafter diligently pursued to completion within one
hundred eighty (180) days from the date of damage), the
LESSEE/PURCHASER may at any time thereafter prior to
substantial completion of such repairs terminate this
Lease/Purchase by giving at least thirty (30) days written
notice to the LESSEE/SELLER. During the pendency of such
repairs, this Lease/Purchase shall continue in full force and
effect except that the damages to the Premises shall be
repaired by and at the expense of
D. DAMAGE OR DESTRUCTION TO PREMISES (cont'd)
LESSOR/SELLER, and until such repairs are substantially
completed so that full use and occupancy of the Premises by
LESSEE/PURCHASER is possible, the rent portion of the
required monthly payment shall be abated and apportioned
according to the portion of the Premises which remain
unusable.
(b) If destruction or damage to the Premises cannot be repaired
within one hundred eighty (180) days after the happening
thereof, LESSOR/SELLER shall notify LESSEE/PURCHASER within
fifteen (15) days after the happening of such destruction or
damage on whether or not the Premises will be repaired or
rebuilt. If LESSOR/SELLER elects not to rebuild or repair the
Premises, this Lease/Purchase shall be terminated, provided,
however, that LESSEE/PURCHASER shall have the right, to be
exercised within thirty (30) days following the receipt of
such notice from LESSOR/SELLER to exercise its right to
purchase the Premises, in which case, LESSEE/PURCHASER shall
be entitled to receive and LESSOR/SELLER hereby assigns to
LESSEE/PURCHASER all insurance proceeds payable in connection
with such damage to LESSEE/PURCHASER. If LESSOR/SELLER elects
to repair or rebuild the Premises, it shall notify
LESSEE/PURCHASER of the time within which such repairs or
reconstruction will be completed, and LESSEE/PURCHASER shall
have the option, within fifteen (15) days after receipt of
such notice, to elect either to terminate this Lease/Purchase
and avoid further liability hereunder or to extend the
current term by a period of time from the happening of such
destruction or until the Premises are restored to their
former condition. Should LESSEE/PURCHASER elect to extend the
current term of the Lease/Purchase, LESSOR/SELLER shall
restore the Premises to their former condition with due
diligence, and LESSEE/PURCHASER shall not be liable to pay
the rent portion of the required monthly payment for the
period from the time of such destruction until the Premises
are so restored to their former condition.
(c) Notwithstanding any provision in Section 8 to the contrary,
LESSEE/PURCHASER shall continue to have the right to purchase
the Premises provided, however, that if LESSEE/PURCHASER
pursues its right to purchase the Premises following an event
of damage or destruction to the Premises and prior to the
complete repair of the Premises, LESSEE/PURCHASER shall be
entitled to receive and LESSOR/SELLER hereby assigns to
LESSEE/PURCHASER all insurance proceeds payable in connection
with such damage to the extent the same have not been used to
repair or rebuild the Premises.
Notwithstanding any provision in this Lease/Purchase to the contrary, neither
party hereto shall be liable to the other party or to anyone claiming through
the other party or to any insurance company (by way of subrogation or otherwise)
insuring the other party for any business interruption or for any loss or damage
to the buildings, structures or other tangible property, or injury to or death
of persons occurring on or about the Premises or the buildings, or in any manner
growing out of or connected with LESSEE/PURCHASER'S use or occupation of the
Premises or buildings, or the use or occupation of the Premises by
LESSEE/PURCHASER'S agents, employees, representatives, visitors, guests even
though such business interruption, loss, damage, injury or death might have been
occasioned by the negligence of such party, its agents or employees, to the
extent that such business interruption, loss, damage injury or death is or could
be covered by a fire and extended coverage insurance policy (with vandalism and
malicious mischief endorsement attached), by a contents insurance policy or by a
sprinkler leakage or water damage policy, or to the extent of recovery under any
other insurance carried covering such business interruption, loss, injury or
death. Each insurance policy carried by the parties hereto shall contain a
clause to the effect that the foregoing waiver shall not affect the right of the
insured party to recover under such policy.
9. CONDEMNATION
If the whole, or any part of the premises as would prevent the
LESSEE/PURCHASER from using the Premises contemplated by this Lease/Purchase,
shall be taken or condemned by a governmental authority by right of eminent
domain, or in the event of any conveyance under threat thereof, then this
Lease/Purchase shall terminate and cease upon the date of such taking. From
the proceeds of such condemnation or conveyance (the "Condemnation Award"),
the LESSEE/PURCHASER shall be entitled to receive an amount equal to the
unamortized value of any improvements to the Premises installed by
LESSEE/PURCHASER at its expense. The balance of the Condemnation Award shall
be the sole and exclusive property of LESSOR/SELLER and LESSEE/PURCHASER
hereby assigns to LESSOR/SELLER all of the LESSEE/PURCHASER'S rights, title
and interest in and to any such Condemnation Award. LESSEE/PURCHASER shall be
entitled to pursue in its own name, against the condemning authority, either
in the same action or in a separate legal action, any claim for relocation or
other similar payments or for the interruption or loss of LESSEE/PURCHASER'S
business by reason of such condemnation. In the event of any taking or
condemnation as mentioned herein affecting the Premises and LESSEE/PURCHASER
exercises its right to purchase the Premises and closes the sale, the
purchase price shall be reduced by the amount paid by the governmental
authority to LESSOR/SELLER for the land and/or improvement taken.
10. DEFAULT AND REMEDIES
This Lease/Purchase is made upon the LESSEE/PURCHASER shall punctually and
faithfully perform all of the covenants and agreements required to be
performed by it hereunder, and if any of the following events of default
shall occur.
A. Any installment of the rent/or the portion applicable to the purchase
price or any other sums required to be paid by LESSEE/PURCHASER
hereunder, or any part thereof, shall at any time be in arrears and
unpaid for fifteen (15) days after written demand by LESSOR/SELLER and
receipt by LESSEE/PURCHASER.
B. There be a default on the part of LESSEE/PURCHASER in the observance or
the performance of any of the other covenants, agreements or conditions
of this Lease/Purchase and the part of LESSEE/PURCHASER to be kept and
performed and said default shall continue for a period of thirty (30)
days following written notice by LESSOR/SELLER and receipt by LESSEE/
PURCHASER, specifying the nature of such default, unless
LESSEE/PURCHASER shall have during such period, commenced to cure such
default and shall continue to proceed with the cure of same or
C. LESSEE/PURCHASER shall file a petition in bankruptcy or be adjudicated a
bankrupt or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future Federal, State
or other statute, law, regulation, or shall make an assignment for the
benefit of creditors, or
D. Any trustee, receiver, or liquidator of LESSEE/PURCHASER or any
substantial part of its properties or of the demised Premises shall be
appointed in any action, suit or proceedings by or against
LESSEE/PURCHASER and such proceeding or action shall not have been
dismissed within ninety (90) days after such appointment, or
E. The leasehold estate hereby created shall be taken by execution or other
process of law, or
F. The transfer or devolution, whether by operation of law or otherwise
(except as permitted hereunder) of this Lease/Purchase or the LESSEE/
PURCHASER'S estate or any of LESSEE/PURCHASER'S interest to any party
other than LESSEE/PURCHASER, or any such attempted transfer or
devolution.
15. PURCHASE AND SALE OF PREMISES
At the expiration of the term of this Lease/Purchase Agreement, February 29,
2004, LESSOR/SELLER shall convey and deliver to LESSEE/PURCHASER an
unencumbered, marketable title to the Premises by a Deed of General Warranty
with the usual covenants such as any nationally recognized title company
will issue subject to easements and restrictions of record, laws and
regulations imposed by any applicable governmental authority and the lien of
any current taxes.
At Closing and upon delivery of Deed, LESSOR/SELLER will pay the applicable
real estate commission to Xxx X. Xxxxxx, Inc. and also pay for the deed
preparation and Louisiana transfer fee. LESSEE/PURCHASER will pay for title
examination, title insurance and recording fees and the cost of the closing
attorney.
Ad valorem taxes, if any, and real estate taxes associated with the Premises
which are due and payable during the year in which the sale is closed shall
be prorated on a calendar year basis as of March 1, 2004, the date of
Closing.
16. LESSOR/SELLER'S REPRESENTATIONS AND WARRANTIES
LESSOR/SELLER has complied with all laws, regulations and orders with
respect to the Premises, and LESSOR/SELLER has not received any notice of
violation of such laws, regulations or orders with respect to the Premises.
To the best of LESSOR/SELLER'S knowledge, no inquiry having been made, there
is no action or other proceeding or investigation pending or threatened
before any agency, court or other governmental authority which relates to
the Premises, LESSOR/SELLER'S use thereof or the disposition of the
Premises.
LESSOR/SELLER has not received any notice from any entity having
jurisdiction over the Premises requesting any improvements, alterations,
corrections or other work in, on or about the Premises.
LESSOR/SELLER has not received notice of any default or breach by
LESSOR/SELLER under any covenants, conditions, restrictions, right-of-ways
or easements which burden or benefit the Premises, and to LESSOR/SELLER'S
knowledge, no such default now exists.
To the best of LESSOR/SELLER'S knowledge, no inquiry having been made, no
general or special assessments have been levied or threatened against the
Premises.
To the best of LESSOR/SELLER'S knowledge, no inquiry having been made, the
Premises is not affected by any statute or governmental regulation of any
kind which limits the rights of LESSOR/SELLER to sell or refinance the
Premises or to pre-pay any mortgage on the Premises.
No complaint, order, citation or notice with regard to air emissions, water
discharges, noise emissions or any Hazardous Substances or any other
environmental, health or safety matters affecting the Premises or any
portion thereof from any person, government or entity has been issued to
LESSOR/SELLER.
Neither the execution and delivery of this Lease/Purchase Agreement or
LESSOR/SELLER'S performance hereof are restricted by or violate any
contractual or other obligations of the LESSOR/SELLER.
No representation or warranty made by LESSOR/SELLER in this Lease/Purchase
Agreement contains any untrue statement of a material fact, or omits to
state a material fact necessary in order to make the statements contained
herein not misleading.
17. Notwithstanding anything to the contrary contained in this Lease/Purchase
Agreement, LESSOR/SELLER is not making any representation or warranties
with regard to the condition of the buildings and other improvements
situated on the Premises. LESSEE/PURCHASER has inspected the Premises, the
buildings and other improvements and is accepting them in their present
condition "as is."
18. If either party defaults in the performance of its duties under this
Lease/Purchase Agreement, the non-defaulting party may pursue any remedy
available at law, in equity or by statute, including the right of specific
performance.
19. This Lease/Purchase Agreement includes the entire agreement between the
parties with respect to the matters to which it pertains and can be amended
by written agreement by both parties.
20. The paragraph headings used in this Lease/Purchase Agreement are for
reference purposes only.
21. The parties agree that at the request of either party, from time to time,
each party shall enter into a short form of Lease/Purchase, in recordable
form, containing the essential terms and conditions hereof.
IN TESTIMONY WHEREOF, witness the signatures of LESSOR/SELLER and
LESSEE/PURCHASER as of the day and year first written above.
LESSOR/SELLER: LESSEE/PURCHASER:
TRIMAC BULK TRANSPORTATION, INC. FLEETCLEAN SYSTEMS, INC.
BY: /s/ ILLEGIBLE NAME BY: /s/ Xxxxxxx X. Xxxxxxxx
TITLE: Secretary TITLE: President
DATE: February 11, 1999 DATE: February 28, 1999
Enclosure
