Exhibit
10.1
LEASE
AGREEMENT
THIS LEASE AGREEMENT (" Lease " or " Lease
Agreement ") is made and entered into on February ___, 2009,
but shall be effective as of February 11, 2009 (the " Effective
Date "), by and between VENTURE METALS, LLC, a Florida limited
liability company, with offices located at 3409 Camp Ground Road,
Louisville, Kentucky 40211 (" Lessor ") and INDUSTRIAL
SERVICES OF AMERICA, INC., a Florida corporation, with offices
located at 7100 Grade Lane, Louisville, Kentucky 40213 ("
Lessee ").
This Lease and the attachments hereto constitute the entire
agreement of the parties with respect to the leasing of the Fixed
Assets (as defined below) and the other subject matter of this
Lease. This Lease supersedes all prior written and/or oral
understandings or agreements with respect to the subject matter
hereof, and no change, modification, addition, or termination of
this Lease shall be enforceable unless in writing and signed by
Lessor and Lessee.
In consideration of the mutual covenants hereinafter contained, the
parties hereby agree as follows:
1.
LEASE OF FIXED ASSETS . Lessor hereby leases to
Lessee, and Lessee hereby leases from Lessor, subject to the terms
of this Lease Agreement, the fixed assets (collectively, the "
Fixed Assets ", any one item of which may be referred to
individually as a " Fixed Asset ") described on Schedule A
attached hereto and made a part hereof.
2.
RENTALS/LEASE TERM . Lessee agrees to pay Lessor rent
(the " Rent ") for the Fixed Assets leased under this Lease
in the amount of $15,000.00 per month beginning on March 1, 2009
(the " Scheduled Lease Commencement Date ") and continuing
through and including February 28, 2011 (the " Scheduled Lease
Expiration Date "). The period from and including the
Scheduled Lease Commencement Date through and including the
Scheduled Lease Expiration Date is referred to in this Lease as the
" Scheduled Lease Term ". Unless terminated by Lessee
thirty (30) days prior to the Scheduled Lease Expiration Date, or
the expiration date of an subsequent Renewal Period, by written
notice to Lessor, this Lease shall automatically renew for a period
of twelve (12) months (each such twelve (12) month period a "
Renewal Term "; and together with the Scheduled Lease Term,
the " Lease Term ") at the same Rent stated above. All
Rent shall be payable to Lessor at Lessor's mailing address set
forth in the opening Paragraph to this Lease, or to such other
person or at such other place as Lessor may from time to time
reasonably designate in writing. If the Effective Date occurs
prior to the Scheduled Lease Commencement Date, Lessor shall be
entitled to Rent in an amount equal to $15,000.00 divided by thirty
(30) and multiplied by the number of days from the Effective Date
to the Scheduled Lease Commencement Date, payable on the Effective
Date.
3.
LATE CHARGES . If Lessee fails to pay any Rent or
other amount required to be paid by Lessee to Lessor (unless such
other amount is being reasonably disputed by Lessee), within ten
(10) days after the due date thereof, Lessee shall (in addition to
all other amounts due Lessor) pay Lessor interest in the amount of
the lesser of the maximum amount allowed by law or one and one-half
percent (1.5%) per month on such unpaid amounts until paid.
4.
NO WARRANTIES; LESSEE'S OBLIGATIONS . Lessee
acknowledges that: Lessor is not the manufacturer of the Fixed
Assets nor the manufacturer's agent nor a dealer therein; Lessee is
satisfied that the Fixed Assets are suitable and fit for their
purposes; Lessor has not made and does not make any warranty or
representation whatsoever, either express or implied, as to the
fitness, condition, merchantability, design or operation of the
Fixed Assets, their fitness for any particular purpose, the quality
or capacity of the materials in the Fixed Assets or workmanship in
the Fixed Assets; Lessor shall not be liable to Lessee and Lessee
hereby waives any claim it may have against Lessor for any loss,
damage (consequential or otherwise) or expense caused directly or
indirectly by the Fixed Assets leased hereunder. Lessor
hereby assigns to Lessee for the duration of this Lease all
warranties received by Lessor with respect to the Fixed Assets, to
the extent assignable, and Lessor shall have no obligation
whatsoever to make any claim on such warranty.
5.
LOCATION . The Fixed Assets at all times shall be
located at 3409 Camp Ground Road, Louisville, Kentucky 40211,
unless Lessee has notified Lessor in writing of a change of
location for each Fixed Asset.
6.
USE; MAINTENANCE . Lessee, at its own expense, will
cause the Fixed Assets to be used and maintained in accordance with
applicable law (including laws and regulations relating to the
protection of the environment) and to be maintained in good
operating condition and, ordinary wear and tear excepted, otherwise
in as good of condition as when delivered under the Lease, all in
accordance with customary industry standards and the terms of all
contracts (including, without limitation, service contracts and
insurance policies) applicable thereto, and any requirements of the
manufacturer relating to the maintenance, operation, and
preservation of warranties of such Fixed Assets, and in any event
in accordance with standards equivalent to those applied by the
Lessee or any of its affiliates to similar fixed assets owned or
leased by it.
7.
RISK OF LOSS; GENERAL INDEMNITY . Lessee hereby
assumes the risk of bodily injury or death, and of damage to
property, including the Fixed Assets, and the loss of such
property, from whatsoever cause during the Lease Term. Lessee
shall indemnify and hold Lessor harmless from and against any and
all claims, losses, liabilities (including patent infringement,
negligence, tort and strict liability), damages, judgments, suits,
and all legal proceedings, and any and all costs and expenses in
connection therewith (including reasonable attorneys' fees)
arising out of or in any manner connected with the manufacture,
sale, purchase, financing, ownership, delivery, rejection,
non-delivery, possession, use, transportation, storage, condition,
operation, maintenance, repair, return or other disposition of the
Fixed Assets or with this Lease, including, without limitation,
claims for injury to or death of persons, for damage to property,
for violation of any law, rule or regulation of any public
authority, and for environmental damage and clean-up. Lessee
shall give Lessor prompt notice of any such claim or liability.
The provisions of this Paragraph shall survive the expiration
or termination of this Lease. Lessee agrees that upon written
notice by Lessor of the assertion of any claim, action, damage,
obligation, liability, or lien, Lessee shall, at Lessor's written
request, assume the full responsibility for the defense thereof.
The general indemnity will exclude claims that are attributed
to the gross negligence or willful misconduct of the Lessor and
their respective affiliates, successors, permitted assigns,
directors, shareholders, agents and employees.
8.
ALTERATIONS/REPAIRS . Lessee will have the right to
make any modifications, alterations or improvements to the Fixed
Assets provided they do not materially decrease the fair market
value, utility or remaining useful life of the Fixed Assets during
the Lease Term.
9.
TAXES . Lessee shall pay when due and be responsible
for all charges, taxes and fees which may now or hereafter be
imposed or levied by any governmental body or agency required to be
paid or collected by Lessor on or relating to the Fixed Assets
leased hereunder and the sale, purchase, rental, operation,
maintenance or use thereof (excluding any taxes on or measured by
the net income of Lessor) together with any penalties or interest
applicable thereto, whether the same be payable by or assessed to
Lessor or Lessee.
10.
INSURANCE . Lessee shall at its own expense acquire
and maintain, during the term hereof, with insurers of recognized
responsibility, in such form and under such policies as are
customary to the Fixed Assets, both: all risk property
insurance, naming Lessor as additional loss payee, in amounts and
under coverages to provide for rebuilding, repairing or replacing
the Fixed Assets in the event of any damage, destruction, loss or
theft of the Fixed Assets (the " Replacement Cost ").
The property insurance may provide for Lessee self insurance or
deductibles not to exceed $5,000; and comprehensive public
liability insurance including coverage for any bodily injury,
death, or property damage which may be caused by or related to the
Fixed Assets or their operation, in an amount not less than $1
million per occurrence. Such insurance shall name Lessor as
an additional insured.
Lessee shall furnish to Lessor a certificate of insurance
indicating that such insurance coverages are in effect at Lessor's
request and shall indicate that such insurance cannot be canceled
or altered without at least thirty (30) days prior written notice
to Lessor. If Lessee fails to pay insurance required to be
provided by Lessee under this Lease, Lessor may, but is not
obligated to provide such insurance. Lessee shall, upon
demand, reimburse Lessor for reasonable costs, fees, or expenses
incurred in providing such insurance.
11.
CASUALTY OCCURRENCE .
(a)
For purposes of this Lease, a " Casualty Occurrence " shall
mean any Fixed Asset is destroyed, irreparably damaged, lost,
stolen, unaccounted for, or taken or requisitioned by condemnation
or otherwise during the term of this Lease.
(b)
In the event that any Fixed Asset shall suffer a Casualty
Occurrence, then, within sixty (60) days of the Casualty
Occurrence, Le
