UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): April 30, 2015

 

INDUSTRIAL SERVICES OF AMERICA, INC.

(Exact name of registrant as specified in its Charter)

 

Florida

 

0-20979

 

59-0712746

(State or other jurisdiction

 

(Commission

 

(IRS Employer

of incorporation)

 

File Number)

 

Identification No.)

 

7100 Grade Lane, P.O. Box 32428, Louisville, Kentucky

 

40232

(Address of principal executive offices)

 

(Zip Code)

 

Company’s telephone number, including area code:  (502) 366-3452

 

Not applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

 

On April 30, 2015, ISA Real Estate LLC, the wholly-owned subsidiary of Industrial Services of America, Inc. (the “ Company ”), entered into an Offer to Purchase Real Estate (the “ Purchase Contract ”) with LK Property Investments, LLC (the “ Purchaser ”), an entity principally owned by Daniel M. Rifkin, CEO of MetalX LLC, a scrap metal recycling company headquartered in Waterloo, Indiana, and the principal owner of Recycling Capital Partners, LLC (“ RCP ”). Pursuant to the Purchase Contract, on April 30, 2015, the Purchaser purchased a 4.4 acre parcel of real estate (the “ Parcel ”) from ISA Real Estate LLC for a purchase price of $1,000,000.  The Company expects to use the proceeds from the Purchase Contract primarily for debt reduction and working capital.

 

Also on April 30, 2015, the Company entered into a Lease Agreement (the “ Lease ”) with the Purchaser pursuant to which the Company will lease a portion of the Parcel.  The Lease terminates on April 14, 2019, but the Company has the right to vacate the leased premises upon 90 days notice to the Purchaser; the Lease would then terminate immediately upon the Company’s vacation of the leased premises.  During the term of the Lease, the Company is required to pay rent to the Purchaser in the amount of $3,000 per month.  The Company is required to reimburse the Purchaser for 40% of the property taxes on the Parcel during the term.

 

The Lease contains other standard provisions, including customary representations, warranties, agreements and covenants, as are generally found in commercial leases of this type.

 

In June 2013, the Company entered into a Securities Purchase Agreement with RCP pursuant to which the Company issued RCP 857,143 shares of the Company’s commons stock for an aggregate purchase price of $3,000,000.50.  In connection with the Securities Purchase Agreement, the Company also issued to RCP a five-year warrant to purchase 857,143 additional shares of the Company’s common stock having an exercise price of $5.00 per share.  Also in connection with the Securities Purchase Agreement, the Company entered into a Director Designation Agreement with RCP under which RCP has the right to designate, and require the Company’s Board to appoint, up to two directors. As of the date of this report, RCP had not exercised this right.

 

The Company sells scrap material to MetalX LLC in the ordinary course of business. During 2014, the Company sold scrap material in the amount of $1.7 million to MetalX LLC.

 

There are no material relationships between the Company or any of its subsidiaries and the Purchaser other than in respect of the matters disclosed herein.

 

The foregoing descriptions of the Purchase Contract and the Lease do not purport to be complete and are qualified in their entirety by reference to the full text of the Purchase Contract and Lease, copies of which are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and are incorporated herein by reference.

 

Item 9.01                                            Financial Statements and Exhibits.

 

(d)                                  Exhibits

 

Exhibit No.

 

Description

 

 

 

10.1

 

Offer to Purchase Real Estate dated April 30, 2015 from LK Property Investments, LLC to ISA Real Estate LLC.

 

2



 

10.2

 

Lease Agreement dated April 30, 2015 by and between Industrial Services of America, Inc. and LK Property Investments, LLC.

 

3



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

INDUSTRIAL SERVICES OF AMERICA, INC.

 

 

 

 

 

 

 

 

 

 

Date:

May 6, 2015

 

By:

/s/ Todd Phillips

 

 

 

 

Todd Phillips

 

 

 

 

Chief Financial Officer

 

INDEX TO EXHIBITS

 

Exhibit No.

 

Description

 

 

 

10.1

 

Offer to Purchase Real Estate dated April 30, 2015 from LK Property Investments, LLC to ISA Real Estate LLC.

 

 

 

10.2

 

Lease Agreement dated April 30, 2015 by and between Industrial Services of America, Inc. and LK Property Investments, LLC.

 

4


Exhibit 10.1

 

OFFER TO PURCHASE REAL ESTATE

 

LK Property Investments, LLC (“Buyer”) hereby offers to purchase from ISA Real Estate LLC (“Seller”), the real estate commonly known as 6709 Grade Lane, Louisville, Kentucky 40213 and legally described in the attached Exhibit “A” , consisting of approximately four and four tenths (4.4) acres, together with all improvements located thereon and the personal property described in Exhibit “B” (collectively referred to herein as the “Real Estate”), upon the following terms and conditions:

 

1.                                       Purchase Price and No Financing Contingencies .  The Purchase Price for the Real Estate shall be One Million and 00/100 Dollars ($1,000,000.00).  The Purchase Price shall be paid at Closing in accordance with Section 8.  The Buyer’s obligations hereunder are not subject to or otherwise contingent on its receipt of any loan or any other financing contingency.

 

2.                                       Title and Title Insurance .

 

(a)                                  Title, Mortgages and Liens .  Seller represents that it has fee simple title to the Real Estate and agrees to cause all mortgages and other liens and encumbrances on the Real Estate not listed on Exhibit “C ” to be satisfied and released of record on or before Closing.

 

(b)                                  Tenants .  Buyer acknowledges that Jack Cooper Transport Company, Inc. currently occupies a portion of the Real Estate pursuant to the terms of a Lease Agreement dated as of March 26, 2013 and amended as of February 20, 2015 (“Cooper Lease”).  Seller will, upon Closing, assign said lease to Buyer and transfer all deposits in Seller’s possession to Buyer.  Buyer will assume all of Seller’s obligations under said lease.  Buyer further agrees to lease the portion of the Real Estate currently occupied by the Seller to Industrial Services of America, Inc. (“ISA”) pursuant to the form of lease attached hereto as Exhibit “D ”.

 

3.                                       Survey .

 

(a)                            Survey .  Seller has ordered, at its expense, a survey of the Real Estate prepared in accordance with the minimum standard detail requirements for ALTA/ACSM surveys.  The survey shall include the optional items from the Table A attached hereto as Exhibit “E” .  The survey shall be delivered to Buyer within five business (5) days of the Closing.  Buyer shall have a period of ten (10) days after receipt of the survey to examine survey and give Seller notice of any encroachment or conflict with adjoining tracts or changes in the location of corners or lines, or other conditions of uncertainty as to size, access, location, encroachments or boundaries of the Real Estate or any improvements thereon.

 

(b)                            Seller’s Obligation to Cure.   Seller shall have a period of thirty (30) days after receipt of Buyer’s notice in which to attempt to remove, satisfy or otherwise cure Buyer’s survey objections.  If Seller does not cure Buyer’s objections within said period, Buyer shall have the option to: (i) elect to extend the time period in which Seller may act to cure such; (ii) waive the objections; or (iii) terminate this Agreement and recover damages from Seller.

 

If Buyer elects option (i) above, and if, on or before the end of the extension period, Seller is still unable to cure Buyer’s objections, then Buyer may elect either options (i), (ii) or (iii).

 

4.                                       Due Diligence Investigation .

 

(a)                                  Building and Improvement Inspection .  Buyer has, at its expense, conducted an inspection of the foundation, walls, roof and building systems of the buildings that are a part of the Real Estate as well as the parking lot.  Based upon the inspection, the following repairs are required at the Real Estate:

 

 

 

 

 

Estimate Range

 

(i)

 

North fence replacement

 

$

14,000.00

 

To

 

$

18,000.00

 

(ii)

 

Parking lot repair and resurfacing

 

$

140,000.00

 

To

 

$

180,000.00

 

(iii)

 

Office and warehouse lighting replacement

 

$

25,000.00

 

To

 

$

25,000.00

 

(iv)

 

Roof repairs

 

$

6,000.00

 

To

 

$

10,000.00

 

(v)

 

Overhead and service doors replacements and repairs

 

$

40,000.00

 

To

 

$

48,000.00

 

 

 

Total

 

$

225,000.00

 

To

 

$

281,000.00

 

 

Based on the foregoing estimated repair and replacement costs, Buyer has reduced the originally anticipated Purchase Price by Two Hundred Thousand and 00/100 Dollars ($200,000.00) from One Million Two Hundred Thousand and 00/100 Dollars ($1,200,000.00) to One Million and 00/100 Dollars ($1,000,000.00).  Seller shall have no obligation to reimburse Buyer if the repair and replacement costs exceed the Two Hundred Thousand and 00/100 Dollars ($200,000.00) adjustment to the anticipated Purchase Price and Buyer will have no obligation to increase the Purchase Price or otherwise pay Seller any additional funds if the repair and replacement costs are less than the Two Hundred Thousand and 00/100 Dollars ($200,000.00) adjustment.

 



 

(b)                                  Environmental Inspection .  Buyer has, at its expense, caused a “Phase I” environmental assessment and any other additional environmental testing and inspection to be performed to determine whether the Real Estate is free and clear from Hazardous Substances, as defined in Section 6(f).  Based upon the result of that assessment and the representations made by the Seller hereunder, Buyer has elected not to conduct any further testing or analysis.

 

(c)                                   Ownership of Due Diligence Information.   Except for any documents supplied by Seller, Buyer shall be the owner of any and all documents and electronic storage devices, and all data contained therein, developed by or for Buyer in connection with its due diligence investigations.  Seller shall not be entitled to obtain originals, electronic or regular copies of such documents from Buyer or its agents, contractors or professionals that generated such documents and shall, at the request of Buyer, delete, destroy or return any and all electronic or regular copies of any such documents voluntarily provided by Buyer.

 

5.                                       Conditions Precedent to Buyer’s Obligation .  Buyer’s obligation to purchase the Real Estate shall be conditioned on the following:

 

(a)                                  Zoning and Development Approvals .  Buyer’s intended use of the Real Estate is for leasing the Real Estate to tenants that will use the Real Estate for maintenance of trucks and other transportation equipment.  The uses will include office, inside storage of materials and equipment and outside storage of materials and equipment and truck and trailer parking.  Buyer’s obligations hereunder shall be subject to the Real Estate being properly zoned for such purposes and the existence of and continued effectiveness following Closing of any necessary permits, approvals, consents, licenses and exceptions (“Authorizations”).

 

(b)                                  Title Insurance .  Seller, at its expense, shall provide at Closing, an ALTA Owner’s Policy, insuring in Buyer marketable title to the Real Estate as of the date of the Closing in the full amount of the Purchase Price.  The policy shall also (i) insure over the general exceptions customarily contained in such policies; (ii) include an ALTA Zoning Endorsement 3.1; (iii) include an access and entry endorsement; and (iv) include an endorsement confirming the Real Estate is the same real estate shown on the survey.  If the title company is unable to commit to furnish the endorsement described in part (iv) at Closing, Seller shall cause the title company to issue the final policy with all of the endorsements described herein. The Owner’s Policy shall be free of all exceptions, including the standard exceptions, other than exceptions listed on Exhibit “C” .

 

(c)                                   Representations .  All representations and warranties of Seller are true and correct as of the date of Closing.

 

(d)                                  Obligations .  Seller’s performance of all of the obligations under this Agreement.

 

(e)                                   Other Conditions .  All other conditions set forth in this Agreement.

 

If all of the foregoing conditions are not satisfied on or prior to Closing or the latest date on which Closing may occur in accordance with Section 8, then Buyer may (i) terminate this Agreement; or (ii) waive such unsatisfied conditions and proceed to closing.

 

6.                                       Representations and Warranties of Seller .  To induce Buyer to make this Offer and to purchase the Real Estate, Seller, by accepting this Offer, does hereby represent and warrant to Buyer the following:

 

(a)                                  Assessments and Proceedings .  Seller has not received any notice, and has no knowledge without investigation or inquiry, that the Real Estate or any portion or portions thereof is or will be subject to or affected by (1) any special assessments, whether or not presently a lien thereon, or (2) any condemnation, eminent domain, change in grade of public streets, or similar proceeding.

 

(b)                                  Laws .  With respect to its ownership and use of the Real Estate, to the best of Seller’s knowledge, Seller is not in violation of any federal, state or local legal or regulatory requirement of any kind or nature whatsoever, including, but not limited to, zoning, land use, building, safety or health laws, regulations, ordinances or codes and Seller has not been notified of any alleged violations of such laws or requirements.

 

(c)                                   Litigation .  To the best of Seller’s knowledge, there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the Real Estate or any portion or portions thereof or relating to or arising out of Seller’s ownership of the Real Estate, pending or threatened in any court or before or by any Federal, state, county or municipal department, commission, board, bureau or agency or other governmental instrumentality.

 

(d)                                  Leases .  As of the date of Closing, except as contemplated in Section 2, there will be no leases, occupancy agreements or tenants in possession affecting the Real Estate or any portion thereof.

 

(e)                                   No Violation or Breach .  The acceptance of this Offer and the consummation of the transaction contemplated herein do not constitute a violation or breach by Seller of any provision of any agreement or other instrument to which Seller is a party or to

 

2



 

which Seller may be subject, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against Seller.

 

(f)                                    Environmental Matters .  Except as disclosed in any written reports furnished by Seller to Buyer, to Seller’s knowledge, (i) the Real Estate has had no environmental contamination from toxics, pollutants, hazardous substances, hazardous wastes, petroleum based products, chemicals, organic compounds, other detrimental matters, including those specified in this Section, whether in the form of a liquid, solid, or gas (“Hazardous Substance” or “Hazardous Substances”); (ii) there are currently no underground storage tanks on the Real Estate and there has never been any spills or leaks from any underground storage tanks on the Real Estate; (iii) there is not constructed, deposited, stored, released, disposed, placed or located on the Real Estate any material, element, compound solution, mixture, substance or other matter of any kind, including solid, liquid or gaseous material, that (1) is a hazardous substance as defined in the federal Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et. seq ., the regulations promulgated from time to time thereunder, environmental laws administered by the United States Environmental Protection Agency, the laws or regulations of the Commonwealth of Kentucky, or any other governmental organization or agency, or (2) is a hazardous waste as defined in the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et. seq ., the regulations promulgated from time to time thereunder, environmental laws administered by the United States Environmental Protection Agency, the laws or regulations of the State of Kentucky, or any other governmental organization or agency, or (3) may cause or contribute to damage to the public health or the environment; (iv) no asbestos or asbestos-containing materials have been installed, used, incorporated into, or disposed of on the Real Estate; (v) no polychlorinated biphenyls (PCBs) are located on or in the Real Estate, in the form of electrical transformers, or any other device or form; (vi) no investigation, administrative order, consent order and agreement, litigation, or settlement with respect to Hazardous Substances is proposed, threatened, anticipated or in existence with respect to the Real Estate; (vii) the Real Estate is in compliance with all federal, state and local environmental statutes, laws, regulations and ordinances; (viii) no notice has been served on Seller concerning the Real Estate, from any entity, governmental body, or individual claiming any violation of any statute, law, regulation or ordinance, or requiring compliance with any statute, law, regulation or ordinance, or demanding payment or contribution for environmental damage or injury to natural resources; and (ix) by acquiring the Real Estate, Buyer will not incur or be subjected to any “superfund” liability for the clean-up, removal, or remediation of any Hazardous Substance from the Real Estate.

 

(g)                                   True and Correct at Closing .  The foregoing representations and warranties are true and correct as of Seller’s acceptance of this Offer and, will be true and correct as of the closing date and shall survive Closing for a period of six (6) months.

 

7.                                       Risk of Loss and Changes to Property .   All risk of loss shall remain in Seller until Closing.  Seller shall not, while this Agreement is in effect, modify, alter, change, commit waste on or take any action that affects the condition of the property or allow the dumping of any material, regardless of whether or not it is hazardous, on the Real Estate.  If the condition of the Real Estate changes between the date of this Agreement and the date of Closing, Buyer may elect (i) to terminate this Agreement or (ii) elect to close and receive from Seller (A) the reasonable costs of removing any material disposed of on the Real Estate and otherwise restoring the Real Estate to its condition as of the date of this Agreement; and (B) any and all insurance proceeds on any improvements on the Real Estate initially payable to Seller pursuant to any policy of property insurance maintained by Seller.  Buyer shall be entitled to perform an additional inspection on or before the Closing to verify the condition of the Real Estate.

 

8.                                       Closing .  Closing under this Agreement shall be held on a date specified by Buyer after satisfaction of all conditions hereof, but on or before April 30, 2015.  Closing shall be held in Louisville, Kentucky at the office of the title agent providing the Commitment, or at such time and place as the parties shall designate in writing.  At Closing, the parties shall perform the following:

 

(a)                                  Deed .  Seller shall convey to Buyer good and marketable title to the Real Estate, subject to any exceptions to title accepted by Buyer under Section 2, by general warranty deed in form acceptable to Buyer;

 

(b)                                  Seller Closing Documents .  Seller shall execute and deliver to Buyer at Closing (i) a Closing Affidavit in a form acceptable to Buyer and sufficient, together with the survey, to support the removal of the standard exceptions from the title insurance policy as contemplated in Section 9(c); (ii) a Bill of Sale conveying title to the personal property described in Exhibit “B” to Buyer; (iii) the Assignment of the Cooper Lease; (iv) Certification of Non-foreign Status; (v) an Authorizing Resolution that grants Seller, and Seller’s authorized agents, full power and authority to execute the documents to be delivered at Closing; (vi) Tenant notice letters; and (vii) a closing statement.  In addition, Seller shall deliver the lease for a portion of the property, as contemplated in Section 2(b) above, executed by ISA.

 

(c)                                   Buyer Closing Documents .  Buyer shall execute and deliver to Seller at Closing (i) the Assignment of the Cooper Lease; (ii) a closing statement; and (iii) the lease between Buyer and ISA.

 

(d)                                  Payment .  Buyer shall pay the title agent the Purchase Price by wire transfer; and

 

(e)                                   Possession .  Subject to the rights of the existing tenant and the Seller as described in Section 2(b), possession shall be delivered to Buyer upon Closing.

 

3



 

If Closing has not occurred prior to May 8, 2015, as a result of an unfilled condition, either party may elect to terminate this Agreement.

 

9.                                       Closing Costs, Taxes and Rents .

 

(a)                                  Buyer’s Closing Costs .  Buyer shall pay Buyer’s attorney’s fees, the cost of recording the deed, one half of any title company closing fee and all other costs required to be paid by Buyer hereunder.

 

(b)                                  Seller’s Closing Costs .  Seller shall pay Seller’s attorney’s fees, any gross income or transfer tax, brokerage commissions, any stamp tax or conveyance fee, one half of any title company closing fee and all other costs required to be paid by Seller hereunder.

 

(c)                                   Liens and Assessments .  Seller shall pay any accrued but unpaid liens or assessments against the Real Estate in place prior to the date of Closing.

 

(d)                                  Real Property Taxes .  Real property taxes and rents shall be prorated to the date of Closing.  Buyer may withhold Seller’s share of taxes from the Purchase Price and pay the taxes when due.

 

10.                                Condemnation .  If, prior to Closing, condemnation proceedings are commenced against any portion of the Real Estate, Buyer may, at its option, terminate this Agreement by written notice to Seller within ten (10) days after Buyer is advised of the commencement of condemnation proceedings, or Buyer may appear and defend in such condemnation proceedings, and any award in condemnation shall, at the Buyer’s election, become the property of Seller and reduce the purchase price by the same amount or shall become the property of Buyer and the purchase price shall not be reduced.

 

11.                                Termination and Default .

 

(a)                                  Default by Seller .  In the event Seller defaults in or fails to perform any part of this Agreement, then Buyer may, at its option, declare this Agreement null and void and proceed by action at law for damages or proceed in equity to specifically enforce this Agreement.

 

(b)                                  Default by Buyer .  In the event Seller has performed all of its obligations under this Agreement, and all of the conditions and contingencies herein have been satisfied, and Buyer fails or refuses to perform its obligations, Seller’s sole remedy will be to declare this Agreement terminated, in which event this Agreement shall be of no further force and effect.

 

(c)                                   Notice of Default .  Before either party shall be entitled to declare this Agreement in default, it shall give the other party written notice of the claimed default and ten (10) days in which to cure said default.

 

12.                                Notice .  All notices under this Agreement shall be written, personally delivered or sent by overnight courier, and shall, except as otherwise provided herein, be deemed given on the date mailed:

 

Notice to the Seller shall be sent to:

 

ISA Real Estate, LLC

c/o Industrial Services of America, Inc.

7100 Grade Lane

Louisville, Kentucky 40213

Attention: Sean Garber

 

Notice to Buyer shall be sent to:

 

LK Property Investments, LLC

MetalX, LLC

295 S. Commerce Drive

Waterloo, IN 46793

Attn: Daniel M. Rifkin

 

With a copy to:

 

Frost Brown Todd LLC

400 West Market Street, 32 nd  Floor

Louisville, KY 40202-3363

Attn: Carolyn A. Pytynia

 

With a copy to:

 

Barrett & McNagny LLP

215 E. Berry Street

Fort Wayne, IN 46802

Attn: Ronald J. Ehinger

 

13.                                Assignment . Buyer may assign this Agreement and all of its rights hereunder to any of its affiliates.

 

14.                                Binding Agreement .  Upon acceptance by Seller, this Offer shall be the agreement of the parties (“Agreement”) and shall be binding upon, and inure to, the benefit of the Seller and Buyer and their respective heirs, executors, administrators, legal

 

4



 

representatives, successors and assigns.  Immediately upon acceptance, Seller shall deliver a fully executed copy of this Agreement to Buyer and the date of such delivery shall be deemed the date of this Agreement.  This Agreement shall constitute the sole and entire agreement between the parties hereto, and no modifications hereof shall be binding unless set forth in writing, signed by Seller and Buyer.  Buyer may, without the consent of Seller, assign its rights and delegate its duties hereunder to an affiliated entity.  This Agreement may be executed in one or more counterparts, each of which shall be deemed a duplicate original and all of which shall constitute one and the same Agreement.

 

15.                                Brokerage .  Seller agrees to indemnify and hold the Buyer harmless from any claim for any other real estate brokerage commissions asserted by any broker it or any of its predecessors engaged in connection with the sale of the real estate.

 

16.                                Construction of Agreement .  This Agreement shall be construed and enforced in accordance with the laws of the State of Kentucky, without regard to its choice of law provision.  Time is of the essence in all provisions of this Agreement.  Captions contained herein are inserted only for the purpose of convenient reference, and in no way define, limit or describe the scope of this Agreement or any part hereof.

 

17.                                Confidentiality .  Seller hereby agrees to keep this Agreement and all of the terms and conditions contained herein confidential.

 

18 .                                Survival after Closing .  This Agreement includes obligations of Buyer and Seller that are to be performed after the Closing.  This Agreement and the obligations of the parties hereunder shall, accordingly, survive the Closing.

 

19.                                Expiration of Offer .  Unless extended by Buyer, this Offer shall expire at 5:00 p.m. E.S.T. on April 30, 2015, unless accepted and returned to Buyer prior thereto.  This offer may be withdrawn at any time prior to acceptance of this Offer.

 

BUYER:

LK PROPERTY INVESTMENTS, LLC

 

 

 

 

Date: April 30, 2015

By:

/s/ Daniel M. Rifkin

 

 

Daniel M. Rifkin, Member

 

5



 

The undersigned, owner of the Real Estate, does hereby agree to sell and convey the above-described Real Estate in accordance with the terms and conditions specified above.

 

SELLER :

ISA Real Estate LLC

 

 

 

 

Date: April 30, 2015

By:

/s/ Sean Garber

 

 

                  , Member

 

6



 

EXHIBIT “A”

 

Legal Description

 

BEGINNING at a roofing nail in the center line of Grade Road, also known as Grade Lane, at its intersection with the Southerly line Aircraft and Agricultural Implement Workers of America, U.A.W., by Deed dated October 22, 1957, of record in Deed Book 3475, Page 77, in the office of the Clerk of Jefferson County, Kentucky; thence with the center line of Grade Road, South 20 degrees 03 minutes West 311.94 feet and extending back between parallel lines South 85 degrees 54 minutes East to the Easterly line of the tract conveyed to George Shulthise, by Deed of record in Deed Book 896, Page 642, in the office aforesaid, the Northerly line being coincident with the Southerly line of the tract conveyed to Trustees of Local 862, United Automobile Aircraft and Agriculture Implement Workers of America, U.A. W., by Deed aforesaid, and measuring 977.73 feet, the Southerly line measuring 1069.99 feet.

 

Excepting therefrom so much of the property as sold to Louisville and Jefferson County Metropolitan Sewer District by Commissioner’s Deed dated February 7, 2001 of record in Deed Book 7593, page 138, in the office aforesaid.

 

BEING, the same property conveyed to ISA Real Estate, LLC, a Kentucky limited liability company by Special Warranty Deed dated September 5, 2008 of record in Deed Book 9283, page 932, in the Office of the Clerk of Jefferson County, Kentucky.

 



 

EXHIBIT “B”

 

Personal Property

 



 

EXHIBIT “C”

 

EXCEPTIONS

 

1  ANY MINERAL OR MINERAL RIGHTS LEASED, GRANTED OR RETAINED BY CURRENT OR PRIOR OWNERS.

 

2. TAXES AND ASSESSMENTS FOR THE YEAR 2015 AND SUBSEQUENT YEARS, NOT YET DUE AND PAYABLE.

 

3. RIGHTS OF TENANTS IN POSSESSION UNDER UNRECORDED LEASES.

 

4. EASEMENT GRANTED LOUISVILLE GAS AND ELECTRIC DATED JUNE 10, 1936 OF RECORD IN DEED BOOK 1613, PAGE 250, IN THE OFFICE AFORESAID.

 

5. EASEMENT GRANTED LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT DATED JANUARY 12, 1994, OF RECORD IN DEED BOOK 6411, PAGE 687, IN THE OFFICE AFORESAID

 

6. EASEMENT GRANTED LOUISVILLE GAS AND ELECTRIC COMPANY DATED DECEMBER 23, 1998, OF RECORD IN DEED BOOK 7187, PAGE 133, IN THE OFFICE AFORESAID.

 

7. EASEMENT AS GRANTED TO LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT IN COMMISSIONER’S DEED DATED FEBRUARY 7, 2001 OF RECORD IN DEED BOOK 7593, PAGE 138, IN THE OFFICE AFORESAID.

 

8. TERMS AND CONDITIONS OF AGREEMENT OF OIL AND GAS LEASE BETWEEN GEORGE SHULTHISE AND ETTA SCHULTHISE, HIS WIFE AND GENL. HIGHLAND PARK., KY. DATED MAY 25, 1922 OF RECORD IN DEED BOOK 1044, PAGE 400, IN THE OFFICE AFORESAID.

 



 

EXHIBIT “D”

 

LEASE

 

See Exhibit 10.2

 



 

EXHIBIT “E”

 

TABLE A

OPTIONAL SURVEY RESPONSIBILITIES AND SPECIFICATIONS

 

NOTE: The items of Table A must be negotiated between the surveyor and client. It may be necessary for the surveyor to qualify or expand upon the description of these items (e.g., in reference to Item 6(b), there may be a need for an interpretation of a restriction). The surveyor cannot make a certification on the basis of an interpretation or opinion of another party. Notwithstanding Table A Items 5 and 11(b), if an engineering design survey is desired as part of an ALTA/ACSM Land Title Survey, such services should be negotiated under Table A, item 22.

 

If checked, the following optional items are to be included in the ALTA/ACSM LAND TITLE SURVEY, except as otherwise qualified (see note above):

 

1.

 

x

 

Monuments placed (or a reference monument or witness to the corner) at all major corners of the boundary of the property, unless already marked or referenced by existing monuments or witnesses.

 

 

 

 

 

2.

 

x

 

Address(es) if disclosed in Record Documents, or observed while conducting the survey.

 

 

 

 

 

3.

 

x

 

Flood zone classification (with proper annotation based on federal Flood Insurance Rate Maps or the state or local equivalent) depicted by scaled map location and graphic plotting only.

 

 

 

 

 

4.

 

x

 

Gross land area (and other areas if specified by the client).

 

 

 

 

 

5.

 

x

 

Vertical relief with the source of information (e.g. ground survey or aerial map), contour interval, datum, and originating benchmark identified.

 

 

 

 

 

6.

 

o

 

(a) Current zoning classification, as provided by the insurer.

 

 

 

 

 

 

 

x

 

(b) Current zoning classification and building setback requirements, height and floor space area restrictions as set forth in that classification, as provided by the insurer. If none, so state.

 

 

 

 

 

7.

 

x

 

(a) Exterior dimensions of all buildings at ground level.

 

 

 

 

 

 

 

o

 

(b) Square footage of:

 

 

 

 

 

 

 

 

 

o (1) exterior footprint of all buildings at ground level.

 

 

 

 

 

 

 

 

 

o (2) other areas as specified by the client.

 

 

 

 

 

 

 

x

 

(c) Measured height of all buildings above grade at a location specified by the client. If no location is specified, the point of measurement shall be identified.

 

 

 

 

 

8.

 

x

 

Substantial features observed in the process of conducting the survey (in addition to the improvements and features required under Section 5 above) such as parking lots, billboards, signs, swimming pools, landscaped areas, etc.

 

 

 

 

 

9.

 

x

 

Striping, number and type (e.g. handicapped, motorcycle, regular, etc.) of parking spaces in parking areas, lots and structures.

 

 

 

 

 

10.

 

o

 

(a) Determination of the relationship and location of certain division or party walls designated by the client with respect to adjoining properties (client to obtain necessary permissions).

 

 

 

 

 

 

 

o

 

(b) Determination of whether certain walls designated by the client are plumb (client to obtain necessary permissions).

 

 

 

 

 

11.

 

 

 

Location of utilities (representative examples of which are listed below) existing on or serving the surveyed property as determined by:

 

 

 

 

 

 

 

o

 

(a) Observed evidence.

 

 

 

 

 

 

 

x

 

(b) Observed evidence together with evidence from plans obtained from utility companies or provided by client, and markings by utility companies and other appropriate sources (with reference as to the source of information).

 

 

 

 

 

 

 

 

 

o Railroad tracks, spurs and sidings;

 

 

 

 

 

 

 

 

 

o Manholes, catch basins, valve vaults and other surface indications of subterranean uses;

 

 

 

 

 

 

 

 

 

o Wires and cables (including their function, if readily identifiable) crossing the surveyed property, and all poles on or within ten feet of the surveyed property. Without expressing a legal opinion as to the ownership

 



 

 

 

 

 

or nature of the potential encroachment, the dimensions of all encroaching utility pole crossmembers or overhangs; and

 

 

 

 

 

 

 

 

 

o utility company installations on the surveyed property.

 

Note - With regard to Table A, item 11(b), source information from plans and markings will be combined with observed evidence of utilities to develop a view of those underground utilities.  However, lacking excavation, the exact location of underground features cannot be accurately, completely and reliably depicted. Where additional or more detailed information is required, the client is advised that excavation may be necessary.

 

12.

 

o

 

Governmental Agency survey-related requirements as specified by the client, such as for HUD surveys, and surveys for leases on Bureau of Land Management managed lands.

 

 

 

 

 

13.

 

x

 

Names of adjoining owners of platted lands according to current public records.

 

 

 

 

 

14.

 

x

 

Distance to the nearest intersecting street as specified by the client.

 

 

 

 

 

15.

 

o

 

Rectified orthophotography, photogrammetric mapping, laser scanning and other similar products, tools or technologies as the basis for the showing the location of certain features (excluding boundaries) where ground measurements are not otherwise necessary to locate those features to an appropriate and acceptable accuracy relative to a nearby boundary. The surveyor shall (a) discuss the ramifications of such methodologies (e.g. the potential precision and completeness of the data gathered thereby) with the insurer, lender and client prior to the performance of the survey and, (b) place a note on the face of the survey explaining the source, date, precision and other relevant qualifications of any such data.

 

 

 

 

 

16.

 

o

 

Observed evidence of current earth moving work, building construction or building additions.

 

 

 

 

 

17.

 

x

 

Proposed changes in street right of way lines, if information is available from the controlling jurisdiction. Observed evidence of recent street or sidewalk construction or repairs.

 

 

 

 

 

18.

 

o

 

Observed evidence of site use as a solid waste dump, sump or sanitary landfill.

 

 

 

 

 

19.

 

o

 

Location of wetland areas as delineated by appropriate authorities.

 

 

 

 

 

20.

 

o

 

(a) Locate improvements within any offsite easements or servitudes benefitting the surveyed property that are disclosed in the Record Documents provided to the surveyor and that are observed in the process of conducting the survey (client to obtain necessary permissions).

 

 

 

 

 

 

 

o

 

(b) Monuments placed (or a reference monument or witness to the corner) at all major corners of any offsite easements or servitudes benefitting the surveyed property and disclosed in Record Documents provided to the surveyor (client to obtain necessary permissions).

 

 

 

 

 

21.

 

o

 

Professional Liability Insurance policy obtained by the surveyor in the minimum amount of $                        to be in effect throughout the contract term. Certificate of Insurance to be furnished upon request.

 

 

 

 

 

22.

 

o

 

 

 

Adopted by the American Land Title Association on                                              .

American Land Title Association, 1828 L St., N.W., Suite 705, Washington, D.C. 20036.

Adopted by the Board of Directors, National Society of Professional Surveyors on                                             .

National Society of Professional Surveyors, Inc., 6 Montgomery Village Avenue, Suite 403, Gaithersburg, MD 20879

 


Exhibit 10.2

 

LEASE AGREEMENT

 

This Lease Agreement (“Lease”) is made and entered into on this 30th day of April, 2015, by and between LK Property Investments, LLC (“Landlord”), and Industrial Services of America, Inc. (“Tenant”).

 

WITNESSETH:

 

1.                                        Premises Leased . The Landlord hereby grants, demises and leases unto Tenant all of the real estate commonly known as 6709 Grade Lane, Louisville, Kentucky and legally described in the attached Exhibit A except that portion currently leased to Jack Cooper Transport Company (“Cooper”) consisting of approximately 2,000 square foot portion of the office space, 9,000 square feet of shop space (first four (4) bays connected to office space), 1,750 square feet of parts room storage and 45,000 square feet of truck parking (the property leased to Tenant hereinafter be known as the “Leased Premises” and the entire parcel and the improvements located thereon to be known as the “Property”).  Tenant agrees to allow Cooper the shared, reasonable use of the restrooms and drivers’ lounge area in the building accessed by the door in the front of the building located on the Property.

 

2.                                       Term . The term of this Lease shall commence as of the date hereof (“Commencement Date”) and shall continue through April 14, 2019 (the “Term”), at which time this Lease will terminate.  However, at any time after giving ninety (90) days written notice,

 

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Tenant may vacate the Leased Premises.  The lease will terminate on the date of vacation.

 

3.                                         Rental. Tenant shall, during the Term of this Lease, pay to Landlord a monthly rental of $3,000.00 in advance.  All monthly rental payments shall be made on or by the first day of each calendar month in advance to the Landlord. The Term and Tenant’s obligation to pay rent and the other costs to be borne by Tenant hereunder shall commence on the Commencement Date. Landlord shall grant possession to Tenant on the Commencement Date. Rental shall be payable without demand, set-off or deduction, except as provided in this Lease.  Rental for partial months at the beginning and end of the Term (or Landlord’s vacancy as provided in this paragraph 3) shall be prorated.

 

4.                                         Title and Enjoyment. Landlord covenants that it has fee simple title to the Leased Premises.  Landlord covenants that the Leased Premises are free and clear of all liens, encumbrances and ground leases, except taxes, assessments, and all matters of record as of the date of this Lease.  Landlord further covenants that Tenant, so long as it is not in default beyond any applicable notice and cure periods, shall, during the term hereby granted, and during any renewals hereof, peaceably and quietly have, hold and enjoy the said Leased Premises for the full term of years in this Lease, subject to easements, restrictions, and other matters of record, including, but not limited to, all zoning regulations. In the event Tenant’s contemplated use of the Premises is materially restricted or prohibited by any laws or regulations, Tenant shall have the option to terminate this Lease.

 

5.                                      Use of Premises. Tenant shall be permitted to use the Leased Premises only for truck and trailer parking, performance of maintenance and repairs on the same, office use and ancillary storage. Tenant covenants and agrees not to use the Leased Premises for any illegal

 

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purpose nor in such manner as to violate any applicable and valid law, rule, or regulation of any kind of any governmental body.

 

6.                                     Other Costs. Tenant shall be solely responsible for the payment of taxes relating to its personal property at the Leased Premises. During the Term of this Lease, Landlord will pay all property and other taxes concerning the Leased Premises. Tenant shall reimburse Landlord for forty percent (40%) of the property taxes assessed against the Property during the Term (prorated for any partial years) within thirty (30) days after receipt from Landlord of copies of such applicable tax bills. Such reimbursed amount shall be considered additional rent hereunder.

 

7.                                       Maintenance by Tenant and Landlord.  Tenant agrees that it will take possession of the Leased Premises in an “as is” and “where is” condition.  Tenant will keep the Leased Premises in good condition and repair at its expense, reasonable wear and tear excepted, and it will indemnify and save harmless Landlord from and against all liens, claims or damages by reason of any repairs or improvements which may be made by or on behalf of Tenant on the Leased Premises. Landlord makes no warranties to Tenant as to the condition of the Leased Premises or the suitability of the Leased Premises for Tenant’s intended use, except that the Leased Premises is properly zoned for Tenant’s intended use. Tenant shall: (a) provide for prompt trash and litter removal, and (b) keep the Leased Premises in their current or better (at Tenant’s option) condition and repair, subject to natural wear, tear and/or deterioration of same. If Tenant fails to perform its obligations hereunder, Landlord may, after first providing Tenant fifteen (15) days prior written notice, but shall not be obligated to, perform Tenant’s obligations or perform work resulting from Tenant’s acts, actions or omissions; and all reasonable amounts so paid or incurred shall, following written notice to Tenant, be considered additional rent payable by Tenant with the next installment of monthly

 

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rent thereafter becoming due and payable. Landlord hereby agrees to keep the structural components (including, without limitation, walls, foundations, roof) of any improvements on the Leased Premises in good condition and repair, to maintain and repair any building systems located outside of any buildings and to maintain any parking lots on the Leased Premises.  Tenant shall be responsible for maintaining compliance of the Leased Premises with the Americans with Disabilities Act, as amended.

 

8.                                 Remodeling.  Tenant shall have the right and privilege to make from time to time any non-structural alterations, changes, additions and improvements to the Leased Premises, at its own expense, so long as same shall be done in a good and workmanlike manner, in compliance with all applicable laws, codes, and ordinances. Any and all structural modifications to the Leased Premises shall be subject to the prior written approval of Landlord.  All repairs by Tenant shall be done in good workmanlike manner in compliance with all applicable national, state, and local codes and rules and regulations.

 

9.                                Fixtures, Equipment and Signs.  Tenant may install and operate in and upon the Leased Premises such trade fixtures, equipment, machinery and appliances as it shall consider necessary to the conduct of its business on the Leased Premises. Tenant may at any time remove all or any part of such fixtures, equipment, machinery and appliances installed on the Leased Premises by Tenant; provided, however, Tenant shall promptly repair any damage to the Leased Premises which may be caused by such installation or removal. Tenant shall not place any signs in, on or about the Leased Premises. Landlord hereby acknowledges that it has no contractual liens in Tenant’s personal property. Landlord hereby agrees to subordinate to Tenant’s current and future lender(s), Landlord’s statutory or common law landlord’s lien related to Tenant’s personal property. No further documentation shall be

 

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required to evidence such subordination and this provision shall be self-operative.

 

10.                              Assignment and Subletting. Tenant shall not transfer or assign this Lease or sublet the Leased Premises without the prior written consent of the Landlord; but upon any permitted assignment or sublease, Tenant shall remain liable for all obligations set forth in this Lease unless otherwise provided.

 

11.                                 Taxes.  Subject to the provisions of paragraph 6 above, Landlord covenants and agrees to pay each year the annual real property taxes due for the Leased Premises during the Term.

 

12.                                 Insurance and Indemnification.  Tenant shall keep in full force and effect a policy of comprehensive general commercial liability insurance on the Leased Premises and the business operated by Tenant upon the Leased Premises, and with limits of liability not less than $1,000,000.00 for personal injury and property damage, per occurrence, and with Landlord named as an additional insured.  The liability insurance policy shall, to the extent possible, contain a clause that the insurer will neither cancel nor change such insurance without first giving fifteen (15) days prior written notice to Landlord; Tenant further agrees to provide the Landlord with certificates of insurance evidencing the issuance of said policies referred to hereinabove.

 

Landlord shall carry commercial general liability insurance insuring all claims, demands or actions made by or on behalf of any person or persons, firm or corporation and arising from, related to or connected with the Property, for bodily injury to or personal injury to or death of any person, or more than one person, or for damage to property in an amount of not less than $2,000,000 combined single limit per occurrence/aggregate.  The insurance shall be

 

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written on an “occurrence” basis and not on a “claims made” basis. If at any time during the term of this Lease, Landlord owns more than one location, the policy shall contain an endorsement to the effect that the aggregate limit in the policy shall apply separately to each location owned by Landlord. Landlord shall insure all improvements at any time situated upon the premises against loss or damage covered by the Standard Fire and Extended Coverage Policy and all other risks of direct physical loss as insured against under Special Form (“all risk” coverage). The insurance coverage shall be for not less than the full replacement cost of the improvements with agreed amount endorsement.  Tenant’s and Landlord’s insurance policies shall each contain an endorsement waiving the insurer’s right of subrogation against the other party.

 

13.                                Destruction of or Damages to Premises; Condemnation.

 

(A)                                 If the buildings or improvements comprised of the Leased Premises shall be destroyed or damaged to the extent of fifty percent (50%) or more of its then value above the foundation, then Landlord or Tenant may terminate this Lease by giving the other written notice sixty (60) days from the date of the loss. To the extent Tenant continues to operate for its use from the Leased Property after any destruction or damage thereto, as contemplated in this Section, the monthly rental and other obligations of Tenant hereunder shall not be abated or reduced unless otherwise agreed. Regardless of the extent of the destruction, monthly rental and all other charges hereunder shall abate from the date of casualty until restoration is complete to the extent that Tenant is unable to operate from the Leased Property for the use described herein.

 

(B)                                  In the event the termination pursuant to subsection a. above does not occur, or the casualty or destruction is not substantial enough for the termination rights set forth in subsection a. above to be applicable, Landlord shall rebuild/restore all improvements to the

 

6



 

Leased Premises with due diligence.  Tenant shall have the right to terminate the Lease if the restoration is not completed within one hundred eighty (180) days after the casualty of destruction.

 

(C)                                    If any portion or all of the Leased Premises or access thereto shall be taken for public or quasi-public use by the right of eminent domain, or transferred by agreement in connection with such public or quasi-public use, or condemned, Landlord and Tenant shall each have the option (to be exercised within ninety (90) days of written notice to Tenant of the taking or condemnation) to cancel this Lease as of the effective date of the taking or condemnation.

 

14.                                Utility Bills. Tenant shall pay all utility charges, as further set forth herein, made against the Leased Premises during the Term including, but not limited to, charges for water, sewer, drainage, gas, electricity, telecommunications, and all other utility charges. Because there is only one meter of each utility in the building, this will be accomplished by Tenant paying to Landlord a sum equal to forty percent (40%) of the utility bills incurred for the building as Rent upon presentment by Landlord of copies of applicable bills. Such amounts shall be due within thirty (30) days after invoice.

 

15.                      Remedies.

 

(A)                                Remedies of Landlord In Event of Default By Tenant.  In the event Tenant shall default in the payment of any monthly rental or other charge herein provided for, and such default shall continue for fifteen (15) days after Landlord shall have notified Tenant in writing of the existence of such default (provided, however, that there shall be no right to cure or Notice of Default required if there has been one or more prior defaults in the payment of any monthly rental or other charge during the applicable calendar year period); or the event of default by Tenant in the observance. or performance of any of the other terms, covenants, agreements or

 

7



 

conditions contained in this Lease Agreement for a period of thirty (30) days after written notice from Landlord (or such additional time as is reasonably required to correct any such default, not to exceed sixty (60) days provided the cure is begun within the thirty (30) day period); or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for Tenant’s property, including Tenant’s interest in the Leased Premises, and such receiver is not removed within sixty (60) days after written notice from Landlord to Tenant to obtain such removal; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceeding Under any present or future law hereby the rent, or any part thereof, is, or is proposed to be, reduced or payment thereof deferred; or if the Leased Premises or Tenant’s effects or interest therein should be levied upon or attached under process against Tenant and are not satisfied or dissolved within thirty (30) days after written notice from Landlord to Tenant to obtain satisfaction or dissolution thereof; then, and in any of said events (said events being sometimes referred to as “Events of Default”). Tenant shall be deemed to have breached this Lease Agreement and Landlord shall have the right at its option either to:

 

i.                                           Forthwith cancel and terminate this Lease by notice in writing to Tenant and if such notice shall be given, all rights of Tenant to the use and occupancy of said Leased Premises shall terminate as of the date set forth in such notice, and Tenant will at once surrender possession of the Leased Premises to Landlord and remove all of Tenant’s effects therefrom, and Landlord may forthwith re-enter the Leased Premises and repossess , such Leased Premises. No termination of this Lease prior to the normal expiration thereof shall affect Landlord’s right to collect rent and other charges hereunder for the remainder of the then existing term; or

 

ii.                                        Landlord may take whatever action at law or in equity which may appear necessary or desirable to collect the rent and other amounts then due and thereafter to become due hereunder or to enforce performance and observance of any obligation, agreement or

 

8



 

covenant of Tenant under this Lease, and in connection with such actions, to recover any or all direct damages to Landlord for Tenant’s violation or breach of this Lease.

 

(B)                                Remedies of Tenant In Event of Default By Landlord . Landlord shall in no event be charged with default in the performance of its obligations under this Lease, unless and until Landlord shall have received written notice from Tenant specifying wherein Landlord has failed to perform any obligation hereunder, and Landlord shall have failed to perform such obligation, or remedy such default, within thirty (30) days (or such additional time as is reasonably required to correct any such default, not to exceed sixty (60) days provided the cure is begun within the thirty (30) day period) after Landlord’s receipt of such written notice from Tenant.  Subject to the foregoing, in the event of a default by Landlord inobservance or performance of any terms, covenants, agreements or other conditions contained in this Lease Agreement, then Landlord shall be deemed to have breached this Lease Agreement, and Tenant shall have the right at its option either to:

 

i.                                           Forthwith cancel and terminate this Lease by notice in writing to Landlord, and if such notice shall be given, Tenant shall have sixty (60) days to remove its personal property and effects therefrom and to seek any direct manages from Landlord arising from Landlord’s default;

 

ii                                           Tenant shall have the right to expend such funds as are reasonably necessary to cure any failure of the Landlord and make repairs or any other obligations of Landlord, and to recover same by set off against future rent, and to otherwise seek any rights it may have at law or in equity as a result of Landlord’s default.

 

16.                                  Surrender of Possession. Tenant will surrender possession of the Leased

 

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Premises to Landlord at the expiration or any prior termination of the Term of this Lease. Holding over or failure by Tenant to surrender the Leased Premises and any holding over by Tenant shall not operate, except by express mutual agreement between the parties hereto, to extend or renew this Lease, and in the absence of such agreement, either party may thereafter terminate such occupancy at the end of any calendar month by first giving to the other party at least thirty (30) days’ notice in writing of the intention to so terminate.

 

17.                                  Notices and Payments. Notices required to be given hereunder shall be given via email and in writing by overnight courier. Such notices when given by Landlord to Tenant shall be addressed to Tenant at:

 

Industrial Services of America, Inc.

7100 Grade Lane

Louisville, Kentucky 40213

Attn: Sean Garber

Email: sgarber@algaric.com

 

Such notices by Tenant shall be addressed to Landlord at:

 

LK Property Investments, LLC

295 S. Commerce Drive

Waterloo, Indiana 46793

Attn:   Daniel M. Rifkin

Email: drifkin@metalx.net

 

With Copy to:

 

Barrett & McNagny, LLP

215 E. Berry St.

Fort Wayne, IN 46802

Attn:   Ronald J. Ehinger

Email: rje@barrettlaw.com

 

Either party may by written notice to the other party change the address to which notices directed to such party shall be mailed. Rental payments shall be made payable to Landlord at the same address as stated above until Landlord notifies Tenant in writing to make rental payments

 

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to another party or by different means.

 

18.                                Liability of Tenant. Tenant shall protect, indemnify, defend, and hold Landlord harmless from and against all and any liability and expense of any kind, including reasonable attorneys’ fees, arising from injuries or damage to persons or property (i) in or on the Leased Premises during the Term of this Lease should any such injuries or damage be the result of Tenant’s acts or omissions and not Landlord’s acts or omissions, (ii) any negligence or willful misconduct of Tenant, its employees, agents or contractors, and (iii) any default of Tenant under this Lease.

 

19.                                Attorney’s Fees and Expenses. In the event either party shall be required to engage legal counsel for the enforcement of any of the terms of this Lease, whether such employment shall require institution of suit or other legal services required to secure compliance on the part of the defaulting party, the defaulting party shall be responsible for and shall promptly pay to the non-defaulting party the reasonable value of said attorneys’ fees, and any other expenses incurred by the non-defaulting party as a result of such default.

 

20.                                      Subordination and Non-Disturbance. Tenant hereby subordinates all of its right, title and interest in and under this Lease to the lien of any first mortgage, or the lien resulting from any other method of financing or refinancing, now or hereafter inforce against the real estate of which the Leased Premises are apart. It is a condition, however, to the subordination provisions of this paragraph that Landlord shall procure from its mortgagee an agreement in writing, which shall be delivered to Tenant, providing, in substance, that so long as Tenant shall faithfully discharge the obligations on its part to be kept and performed under the terms of this Lease, its tenancy will not be disturbed, nor its lease affected by any default under such mortgage, or mortgages, and the rights of Tenant hereunder shall expressly survive

 

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and shall not be cut-off, and this Lease shall in all respects, continue in full force and effect.

 

21.                                No Presumption Against Drafter.   Landlord and Tenant understand, agree and acknowledge that this Lease has been freely negotiated by both parties, and in any controversy, dispute or contest over the meaning, interpretation, validity or enforceability of this Lease or any of its terms or conditions, there shall be no inference, presumption or conclusion drawn whatsoever against either party by virtue of that party having drafted this Lease or any portion thereof.

 

22.                                Choice of Law and Venue.  The laws of the Commonwealth of Kentucky shall govern the validity, enforceability, and performance of this Lease.  The invalidity or unenforceability of any provision hereof shall not affect or impair any other provision.  The parties agree that any dispute concerning this Lease shall be submitted to and resolved by a court of law located in Jefferson County, Kentucky.

 

23.                                Binding The Parties, etc. The respective rights and obligations provided this Lease shall bind and shall inure to the benefit of the parties hereto, their legal representatives, heirs, successors and assigns, provided, however, that no rights shall inure to the benefit of any successor of Tenant unless Landlord’s written consent for the transfer to such successor has first been obtained as provided in Paragraph 10.  Time is of the essence with respect to all aspects of this Lease.

 

24.                                Counterparts.  This Lease may be executed in two or more counterparts. Execution of any copy shall be deemed to be execution of the original document and all such executed copies and the original shall be read together and treated as one and the same instrument, with the same legal effect as if all persons or corporate and other entities who signed the original or any copy had simultaneously signed the original.

 

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25.                                Environmental.  Tenant agrees to indemnify and hold harmless Landlord from any and all claims, charges, damages) fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, any and all sums paid for settlement of claims and attorney, consultant and expert fees) arising out of, based on or in connection with the presence of any hazardous substances on the Leased Premises or violation of any federal, state, or local environmental laws, regulations, and requirements related to the same, unless the hazardous substances are present due to Landlord’s and/or Coopers or their agents’ or employees’ actions.

 

26.                                Brokers. Landlord hereby warrants that it has not dealt with any broker in connection with this Lease and hereby agrees to indemnify Tenant in the event a broker asserts that it has represented Landlord with respect to this Lease.

 

27.                                Waiver of Damages. Notwithstanding anything to the contrary set forth in this Lease, Landlord and Tenant hereby waive and release the other from liability for any damages which are special, punitive, or consequential (including without limitation damages for lost profits and lost opportunities).  For purposes of this waiver, Landlord’s lost rents shall not be considered special or consequential damages

 

28.                                Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, civil disturbances, picketing, demonstrations, insurrection, war or other reasons of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period equivalent to the period of such delay. The provisions of this section shall not operate to excuse Tenant from prompt payment of rental, additional rental, or

 

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any other payments required by the terms of this Lease.

 

29.                                WAIVER OF JURY TRIAL. Tenant and Landlord hereby waive trial by jury in any action or proceeding arising out of or in any way relating to the performance or non performance of this Lease by either party other than claims by third parties for personal injury or property damage.

 

IN WITNESS WHEREOF, the parties have caused this instrument to be executed by the persons thereunto duly authorized, the date and year first above written.

 

 

Landlord:

 

LK Property Investments, LLC, a              limited liability company

 

By:

/s/_ Daniel M. Rifkin

 

 

Daniel M. Rifkin, President

 

 

 

 

 

WITNESS:

 

 

 

Print Name:

 

 

 

 

 

Tenant

 

Industrial Services of America, Inc., a Florida corporation

 

By:

/s/_ Sean Garber

 

 

Sean Garber, President

 

 

 

WITNESS:

 

/s/ Tracey Thompson-Taylor

 

Print Name:

Tracey Thompson-Taylor

 

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EXHIBIT A

 

Leased Premises and Property

 

See Exhibit 10.2