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Exhibit 10.30
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CONTRACT OF PURCHASE
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24
th J.W. 3/24/03
CONTRACT
OF PURCHASE (the "Contract") made this 11 th day
of March 2003, by and between SOUTHERN STATES COOPERATIVE,
INCORPORATED, ("Seller") and the HARRY KLETTER FAMILY LIMITED
PARTNERSHIP, a Kentucky limited partnership
("Purchaser").
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Purchaser
agrees to buy and Seller agrees to sell property located at 7110
Grade Lane, Louisville, Kentucky 40213 (the "Premises") containing
approximately 10.723 acres of land, including all buildings and
improvements on the property, as more particularly described on the
attached Exhibit A.
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1. The
purchase price is $1,500,000.00 and shall be paid in cash or by
wire transfer as follows:
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A.
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Earnest money of $15,000.00 (the
"Earnest Money") shall be paid to Seller by Purchaser upon receipt,
by Seller, of approval for this transaction from Seller's lending
institutions. The Earnest Money shall be made by check payable to
Walter Wagner, Jr. Company, Realtors. This Earnest Money shall be
applied to the purchase price at Closing as defined herein
below.
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B.
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Balance of $1,485,000 to be paid
at Closing as defined herein below.
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C.
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Upon Closing, as defined herein
below, Seller shall pay Walter Wagner, Jr. Company, Realtors, a
commission of 5% of the purchase price. Purchaser shall have no
obligation financial or otherwise to Walter Wagner, Jr. Company,
Realtors arising out of this transaction or the lease agreement
contemplated herein.
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2. Seller
agrees to convey the Premises to Purchaser by general warranty deed
subject to applicable easements and restrictive covenants of record
not adversely affecting the use of the premises.
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3. The
Premises will be sold "AS IS" without any express or implied representation
or warranty with respect to its condition or suitability including,
but not limited to, the condition of the soil, the presence of
hazardous materials, substances, wastes or other environmentally
regulated substances, whether known or unknown, and other physical
characteristics. Within thirty (30) days of execution of this
Contract (the "Contingency Period"), Purchaser shall perform at its
own expense and rely solely upon its own independent investigation
concerning the physical condition of the Premises, including but
not limited to an environmental assessment and compliance with any
applicable law, regulation, order or ordinance pertaining to the
Premises. In the event that Purchaser's investigation shall
disclose the presence of hazardous materials, substances, wastes or
other environmentally regulated substances or other physical
characteristics at the site, Purchaser, at its option, shall have
the right to terminate this Contract and the full Earnest Money
payment shall be returned, without interest, to Purchaser, provided
Purchaser gives written notice to Seller within the Contingency
Period. Purchaser agrees that if in the course of conducting such
investigation, "it discovers a condition on the Premises that it
believes must be reported to governmental authorities, it shall
immediately notify Seller of the condition. Seller shall bear the
responsibility of reporting any such action to the proper
governmental authorities unless such condition is an immediate
threat to the health, welfare or safety of any individuals or the
environment. If Closing occurs, Purchaser assumes all
responsibilities for environmental conditions of the Premises at
the time of the sale and shall hold Seller harmless from any
liability arising out of such conditions. In the event Purchaser
withdraws its offer to purchase as provided in this paragraph,
Purchaser shall promptly provide Seller a copy of all reports,
including environmental report(s), secured as a result of its
investigation of the Premises. The terms of this paragraph shall
survive Closing and shall be Purchaser's sole remedy under the law
for any condition of the soil, presence of hazardous materials,
substances, wastes or other environmentally regulated substances,
and other physical characteristics at the site.
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4. Seller
shall pay the expenses of preparing the Deed and of the Recordation
tax applicable to Grantors. Purchaser shall pay all other closing
costs.
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5. Closing
(the "Closing") shall be held on or before May 1, 2003, at a place
mutually agreed upon by the parties.
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6. All
taxes shall be prorated as of the date of Closing.
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7. All
risk of loss or damage to the Premises by fire, windstorm,
casualty, or other cause is assumed by Seller until date of
Closing. However, in the event of such casualty, Purchaser's sole
remedy shall be either (i) the right to terminate the Agreement or
(ii) a reduction in the purchase price equal to the insurance
proceeds received by Seller as a result of such
casualty.
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8. This
Contract and any agreements referenced herein, constitutes the
entire agreement among the parties relating to the subject matter
hereof and may not be modified or changed except by written
instrument executed by both parties.
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9. This
Contract shall be construed, interpreted, and applied according to
the laws of Kentucky, and it shall be binding upon and shall inure
to the benefit of the heirs, personal representatives, successors,
and assigns of the parties.
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10. The
approval of Seller's financial institutions is a condition
precedent to the validity and enforceability of this Contract. This
Contract is contingent upon Purchaser, as Landlord, and Seller, as
Tenant, entering into a Lease Agreement for a portion of the
Premises in substantially the form of agreement attached hereto as
Exhibit B.
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11. Upon
the termination of the Lease Agreement to be entered into between
the parties for part of the Premises, Seller, at its sole cost and
expense, shall remove all chemical tanks and related
equipment.
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WITNESS the following signatures
and seals as of the date written above.
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PURCHASER:
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SELLER:
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HARRY KLETTER FAMILY LIMITED
PARTNERSHIP
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SOUTHERN STATES COOPERATIVE,
INCORPORATED
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BY: /s/ Harry
Kletter
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BY: /s/ James R.
Wright
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TITLE: Managing
Partner
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TITLE:
Director
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EXHIBIT A
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A plat depicting the real
property described as follows:
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BEGINNING
at a pin and cap at the southwest
comer of the tract conveyed to Cooperative Seed & Farm Supply
Service, Inc. by Deed Book 2889, Page 277 and Deed Book 3559, Page
253, said pin and cap also being in the westerly right of way line
of Grade Lane (a 60' Public Roadway); running with the southerly
line of the aforementioned Cooperative Seed & Farm Supply
Service, Inc. North 65 degrees 42 minutes 00 seconds West a
distance of 502.65 feet to a pin and cap being at the southeasterly
comer of a tract conveyed to K & R Corporation by Deed Book
6841, Page 161; thence with the east line of last mentioned tract
North 24 degrees 18 minutes 00 seconds East a distance of 200.00
feet to a pin and cap; thence with the northerly line of said tract
North 65 degrees 42 minutes 00 seconds West a distance of 843.89
feet to a pin and cap; thence North 07 degrees 18 minutes 00
seconds West a distance of 305.81 feet to a pin and cap in the
southerly line of another tract conveyed to K & R Corporation
by Deed Book 4935, Page 731; thence with the southerly line of said
tract South 65 degrees 42 minutes 00 seconds East a distance of
1484.94 feet to a pin and cap in the westerly right of way line of
Grade Lane aforesaid; thence with said right of way line South 21
degrees 35 minutes 04 seconds West a distance of 460.98 feet to the
point of beginning. Being the remainder of the property as shown on
plat attached to and made a part of deed dated February 23, 1981,
of record in Deed Book 5215, Page 427, in the Office of the Clerk
of Jefferson County, Kentucky.
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Being a portion of the same
property acquired by Cooperative Fertilizer Service of Richmond,
Incorporated by deed dated June 13, 1952, of record in Deed Book
2889, Page 277 and a portion of the same property acquired by
Cooperative Seed & Farm Supply Service, Incorporated, dated
March 17, 1959, of record in Deed Book 3559, Page 253, both in the
Office of the Clerk of Jefferson County, Kentucky.
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EXHIBIT "B"
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LEASE
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THIS LEASE , made and entered into by and between Southern
States Cooperative, Inc., located at 7110 Grade Lane, Louisville,
KY 40213, a. Virginia corporation (the "Tenant") and the Harry
Kletter Family Limited Partnership .located at 7100 Grade Lane,
Louisville, KY 40213, a Kentucky limited partnership (the
"Landlord");
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WITNESSETH:
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1.
DESCRIPTION OF PREMISES - For and in consideration of the
rents, covenants and agreements hereinafter reserved and contained,
Landlord hereby Leases to Tenant the following described property,
including the improvements located thereon, located at 7110 Grade
Lane, Louisville, Kentucky 40213 as further described on Exhibit A
attached hereto (hereinafter referred to as the
"Premises").
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2.
TERM - Tenant's tenancy shall commence on or before May 1S\
2003 and continue for a period of two (2) years thereafter (the
"Term"). Each year of the Term is hereinafter referred to as a
"Contract Period". Tenant shall have the option to renew this
agreement for two (2) successive one (1) year periods, upon written
notice at least ninety (90) days prior to the end of the then
current Contract Period, upon the same terms and conditions as
stated herein, except that the rent for each successive year shall
be five (5%) percent more than the rent payable with respect to the
then current Contract Period.
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Notwithstanding
the foregoing, this Lease shall not be effective until such time as
the underlying property of which the Premises forms a part has been
sold to the Landlord by the Tenant.
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3.
USE OF PREMISES - The Premises shall be used and occupied by
Tenant for any lawful purpose in connection with its business
operations as an agricultural cooperative, as well as all uses
related thereto. The Tenant may not occupy or use the Premises for
any other purpose without the written consent of the Landlord.
Tenant shall obey, observe and promptly comply with all valid
present and future laws, ordinances, rules, regulations, orders and
requirements of the United States of America, the Commonwealth of
Kentucky, and of any or all governmental authorities or agencies
having authority over said Premises and the occupancy thereof.
Tenant shall not use the Premises or permit same to be used for any
unlawful or illegal purpose. Tenant will not do, or permit anything
to be done, in, upon, or about the leased Premises that increases
the fire hazard beyond that which will exist by reason of the
ordinary use or occupancy of the Premises set forth above. Tenant
will not do or permit to be done anything in, about or upon the
leased Premises that interferes with the rights of, or tends to
annoy, other tenants of Landlord; that conflicts with the
regulations of the Fire Department or Board of Health; that creates
a nuisance; or that is dangerous to persons or property. Tenant
shall not use or permit to be used on the Premises anything that
will invalidate any policies of insurance which may now or
hereafter be carried on said Premises or increase the rate of
insurance thereon; and any increase in insurance premiums on said
Premises which may be caused by the use made thereof by Tenant
shall be paid by Tenant.
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4.
RENT - The rental price per annum for the entire Premises
shall be as follows:
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(i) For
the period commencing May 1, 2003 through and including April 30th,
2005, the fixed rent shall be two hundred and fifty six thousand
and two hundred ($256,200) dollars, payable in equal monthly
installments of twenty one thousand three hundred and fifty
($21,350) dollars per month, payable on or before the first day of
each month, and thereafter;
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(ii) In
the event Tenant exercises its option to renew this lease for any
successive Contract Period(s), the monthly fixed rent shall be five
(5%) percent more ,than the rent payable with respect to the then
current Contract Period. By way of example the rent payable during
the third Contract Period (if any) shall be $22,417.50 per
month.
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Monthly
rental payments shall be due and payable on the first day of each
and every month. In the event a monthly rent payment is paid after
the fifth day of a month, such payment shall be deemed late and
shall be subject to a 5% late fee (i.e., 5% of the monthly rent
payment) payable along with such payment. If. such liquidated
damages shall be deemed to subject the Landlord to usury laws of
the Commonwealth of Kentucky, this provision shall be severed from
this lease agreement and shall be considered null and void and of
no force of effect. In no event shall the underlying unpaid rent or
additional rent be voided or otherwise vitiated by such a
finding.
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5.
SECURITY DEPOSIT - Upon the execution of this Lease, the
Tenant shall deposit with the Landlord the sum of twenty one
thousand three hundred and fifty ($21,350) dollars as security for
the full and faithful performance by Tenant of all the terms,
covenants and conditions of this Lease upon the Tenant's part to be
performed, which said sum shall be returned to the Tenant after the
time fixed as the expiration date of the term herein, provided the
Tenant has fully and faithfully carried out all of said terms,
covenants and conditions on Tenant's part to be performed. In the
event of a bona fide sale, subject to this Lease, the Landlord
shall have the right to transfer the security to the vendee for the
benefit of the Tenant; and Landlord shall be considered released by
the Tenant from all liability for the return of such security; and
the Tenant agrees to look to the new Landlord solely for the return
of said security, and it is agreed that this shall apply to every
transfer or assignment made of the security to a new Landlord. The
security deposited under this Lease shall not be mortgaged,
assigned or encumbered by the Tenant without the written consent of
the Landlord.
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6.
QUIET ENJOYMENT AND TITLE - The Landlord covenants, warrants and represents
that it has full right and power to execute and perform the Lease
and this agreement and to grant the estate demised herein, and
covenants that the Tenant, on paying the rent herein and performing
the covenants and agreements hereof, shall peaceably and quietly
have, hold and enjoy the Premises and all rights, easements,
appurtenances and privileges belonging or in anyway appertaining
thereto, during the term of the Lease and any extension or renewal
thereof.
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7.
IMPROVEMENTS Tenant acknowledges that it is renting the
Premises in an "as is" condition and shall provide all improvements
that it deems necessary or desirable, provided, however, that no
material improvements shall be made to the Premises without
Landlord's prior written consent. In the event Tenant desires to
make a material improvement, Tenant shall submit a plan to Landlord
outlining such proposed change at least thirty (30) days prior to
any proposed construction. If said plans are acceptable to the
Landlord, written consent will be given to the Tenant. Any
permission given by the Landlord to make structural changes or
alterations shall be on the condition that the work shall be at
Tenant's expense, unless otherwise agreed in writing, an
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