Exhibit 10.1
AGREEMENT TO PURCHASE REAL ESTATE
This AGREEMENT TO PURCHASE REAL ESTATE (this " Agreement ")
is made as of the 2nd day of April, 2009, by and between LUCA
INVESTMENTS, LLC, a Kentucky limited liability company (hereinafter
referred to as " Seller "), and INDUSTRIAL SERVICES OF
AMERICA, INC., a Florida corporation (hereinafter referred to as "
Purchaser ").
For valuable consideration, the receipt and adequacy of which are
acknowledged, the parties agree that the Seller shall sell and the
Purchaser shall buy the hereinafter described Property, on the
following terms and conditions:
1.
Property . The " Property " is (i) the real
property described on Exhibit A attached hereto and
made a part hereof, and including all improvements located
thereon.
2.
Purchase Price . The " Purchase Price " is
$2,067,041 comprised of $1,267,041 in cash and 200,000 shares (the
" Shares ") of Industrial Services of America, Inc., $.005
par value, common stock priced at the per share NASDAQ Last Sale
price of $4.00, as quoted on NASDAQ at 10:30 a.m. (EDT) as of the
date hereof, and as to the cash portion of the Purchase Price shall
be payable in immediately available funds at the Closing (defined
below) with the delivery of the Shares registered in the name of
Seller, with appropriate restrictive securities law legends
included thereon, at the Closing, subject to the credits and
prorations described herein.
3.
Title . Seller will convey to the Purchaser, an
unencumbered, marketable title to said Property to be conveyed by
deed of general warranty (the " Deed "), with the usual
covenants such as any nationally recognized title company will
insure, subject to (i) liens for all taxes due and payable in the
year of Closing, which taxes shall be prorated as provided for in
this Agreement, and (ii) the Permitted Exceptions (defined below),
if any, and (iii) any and all restrictions, requirements and
liabilities pertaining to any environmental conditions at the
Property not objected to during the Inspection Period (defined
below) pursuant to Section 4(c) below.
4.
Purchaser's Contingencies . Notwithstanding any other
provision of this Agreement, Purchaser may terminate this Agreement
unless the following conditions shall have been waived by Purchaser
in writing, or satisfied in Purchaser's sole discretion, not later
than the 60 th day after the date of this Agreement,
unless an earlier date is expressly provided for below (the period
of time beginning on the date of this Agreement and ending on the
60 th day after the date of this Agreement is referred
to as the " Inspection Period ," subject to any extensions
by Purchaser as provided herein):
(a)
Title . Purchaser's obtaining of a commitment for an
owner's policy of title insurance and such endorsements thereto as
may be reasonably required by Purchaser (the " Title
Commitment "), in form and substance satisfactory to Purchaser
and from an agent of a title insurance company (the " Title
Company ") authorized to transact business in Kentucky.
As used in this Agreement, " Permitted Exceptions " means
any exceptions to Seller's title which are shown on
Schedule B-2 of the Title Commitment and/or on the Survey
(defined below) and to which Purchaser has not objected during the
Inspection Period.
(b)
Survey . Purchaser's obtaining of a current ALTA/ACSM
survey of the Property (the " Survey ") satisfactory in form
and substance to Purchaser, and Title Company, with a surveyor's
certificate in form and substance acceptable to Purchaser and the
Title Company.
(c)
Property Approval . Purchaser's satisfaction with the
Property, including, without limitation, the Property's
environmental condition and the structural condition of the
improvements and mechanical systems. Purchaser, its agents
and employees will be permitted to inspect the Property from time
to time at the Purchaser's expense to examine the condition of the
Property. All rights of Purchaser to inspect the Property
shall include the rights to intrusive inspections, provided that
Purchaser repairs any damage done to the Property resulting from
such inspections and restores the Property to its original
condition as existed immediately prior to such inspections, should
Purchaser elect to terminate this Agreement. Purchaser shall
indemnify and hold Seller harmless from and against any and all
claims, losses, damages and costs (including attorneys' fees and
expenses) incurred by Seller as a result of Purchaser's exercise of
its rights under this Section 4(c) except for any such
claims, losses, damages or costs incurred as a result of
Purchaser's discovery of any existing condition at the
Property.
(d)
Purchaser's Financing . Purchaser's obtaining of
financing, if needed, for the cash portion of the Purchase Price
for Purchaser's acquisition of the Property from a source and on
terms and conditions satisfactory to Purchaser.
(e)
Governmental Regulations . Purchaser's satisfaction
with the governmental regulations, including without limitation any
zoning or land use regulations, applicable to the Property.
5.
Environmental Matters .
(a)
Laws and Hazardous Substances . For purposes of this
Agreement, the term " Environmental Law(s) " shall mean any
federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing
liability or standards of conduct concerning any Hazardous
Substance (defined herein), as now or at any time hereafter in
effect. For purposes of this Agreement, the term "
Hazardous Substance(s) " shall have the meaning ascribed in
any Environmental Law to any hazardous, toxic or dangerous waste,
substance, pollutant or material, whether liquid, solid or
gaseous.
(b)
Environmental Reports; Absence of Hazardous Substances
. Upon Seller's execution of this Agreement, Seller shall
make available for Purchaser's inspection all environmental reports
and/or assessments applicable to the Property and in Seller's
possession (the " Environmental Reports "). Except as
disclosed by the Environmental Reports, to the best of Seller's
actual knowledge based on such Environmental Reports, no Hazardous
Substance has been placed, held, located or disposed of on, under
or at the Property in violation of any Environmental Laws.
(c)
Tanks . Except as disclosed by the Environmental
Reports, to the best of Seller's actual knowledge, there are no
tanks or other facilities on, under, or at the Property which
contain materials which, if known to be present in soils or
groundwater, would require cleanup, removal or some other remedial
action.
(d)
Environmental Indemnity and Hold Harmless . Seller
does hereby indemnify, defend and hold Purchaser harmless from and
against all claims, expenses (including reasonable attorneys'
fees), losses and liabilities arising from any cleanup costs and
related expenses incurred as a result of any cleanup of any
existing environmental condition, which is the result of a
violation of any Environmental Law.
6.
Investment Intent .
(a)
Seller is acquiring the Shares for investment purposes only for its
own account and not with a view to the resale or distribution of
any part thereof under the Securities Act of 1933, as amended (the
"Securities Act") , or any applicable state securities
laws.
(b)
Seller understands that the Shares have not been registered under
the Securities Act, in reliance on exemptions thereunder for
transactions not involving any public offering, that the Shares
have not been approved or disapproved by the Securities and
Exchange Commission (the "SEC") or by any other federal or state
agency.
(c)
Seller has had an opportunity to ask questions of and receive
answers from officers of the Purchaser, or a person or persons
acting on its behalf, concerning the terms and conditions of this
investment, and all such questions have been answered to the full
satisfaction of the Seller.
(d)
Seller has such substantial knowledge and experience in financial
and business matters that it is capable of evaluating the merits
and risks of the investment.
7.
Seller Documents . Seller agrees to make available to
Purchaser, copies of whatever contracts, reports, studies, and
other documents related to the Property as may be contained in
Seller's files.
8.
Prorations and Adjustments . At Closing, the following
adjustments and prorations shall be computed as of the Closing, and
the Purchase Price of this Agreement shall be adjusted to reflect
such prorations.
(a)
All items of revenue, cost and expense of the
