Exhibit 10.11
GUARANTY OF LEASE
GUARANTY OF LEASE
(this " Guaranty ") made as
of September 4, 2008, by KAR Holdings, Inc., a Delaware
corporation, with an address at 13085 Hamilton Crossing Boulevard,
Suite 500, Carmel, Indiana 46032 (" Guarantor "), to First
Industrial, L.P., a Delaware limited partnership, having an office
at 311 South Wacker Drive, Suite 4000, Chicago, Illinois 60606 ("
Landlord ").
W I T N E S
S E T H :
WHEREAS:
A. Landlord has been requested by
ADESA SAN DIEGO, LLC , a California limited liability
company, with an office at c/o ADESA, Inc., 13085 Hamilton Crossing
Boulevard, Suite 500, Carmel, Indiana 46032 (" Tenant "), to
enter into a Ground Lease dated as of the date hereof (the "
Lease "), whereby Landlord would lease to Tenant, and Tenant
would rent from Landlord, certain premises located in San Diego,
California, as more particularly described in the Lease (the "
Premises ").
B. Guarantor is the indirect
owner of Tenant, and will derive substantial economic benefit from
the execution and delivery of the Lease.
C. Guarantor acknowledges that
Landlord would not enter into the Lease unless this Guaranty
accompanied the execution and delivery of the Lease.
D. Guarantor hereby acknowledges
receipt of a copy of the Lease.
NOW, THEREFORE
, in consideration of the execution
and delivery of the Lease and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor covenants and agrees as follows:
1. DEFINITIONS .
Defined terms used in this Guaranty and not otherwise defined
herein have the meanings assigned to them in the Lease.
2. COVENANTS OF
GUARANTOR .
(a) Guarantor absolutely,
unconditionally and irrevocably guarantees, as a primary obligor
and not merely as a surety: (i) the full and prompt payment of
all Base Rent and Additional Rent and all other rent, sums and
charges of every type and nature payable by Tenant under the Lease,
and (ii) the full, timely and complete performance of all
covenants, terms, conditions, obligations and agreements to be
performed by Tenant under the Lease (all of the obligations
described in clauses (i) and (ii), collectively, the "
Obligations "). If a Default occurs under the Lease,
Guarantor will, without notice or demand, promptly pay and perform
all of the Obligations, and pay to Landlord, when and as due, all
Base Rent and Additional Rent payable by Tenant under the Lease,
together with all damages, costs and expenses to which Landlord is
entitled pursuant to any or all of the Lease, this Guaranty and
applicable Laws.
(b) Guarantor agrees with
Landlord that (i) any action, suit or proceeding of any kind
or nature whatsoever (an " Action ") commenced by Landlord
against Guarantor to collect Base Rent and Additional Rent and any
other rent, sums and charges due under the Lease for any month or
months shall not prejudice in any way Landlord’s rights to
collect any such amounts due for any subsequent month or months
throughout the Term in any subsequent Action, (ii) Landlord
may, at its option, without prior notice or demand, join Guarantor
in any Action against Tenant in connection with or based upon
either or both of the Lease and any of the Obligations,
(iii) Landlord may seek and obtain recovery against Guarantor
in an Action against Tenant or in any independent Action against
Guarantor without Landlord first asserting, prosecuting, or
exhausting any remedy or claim against Tenant or against any
security of Tenant held by Landlord under the Lease, and
(iv) Guarantor will be conclusively bound by a judgment
entered in any Action in favor of Landlord against Tenant, as if
Guarantor were a party to such Action, irrespective of whether or
not Guarantor is entered as a party or participates in such
Action.
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(c) Any default or failure by the
Guarantor to perform any of its Obligations under this Guaranty
shall be deemed an immediate Default under the Lease; provided,
however, that if the basis for the occurrence of a default under
this Guaranty is the occurrence of a default by Tenant under the
Lease, then the default under this Guaranty shall not constitute a
Default under the Lease until any applicable notice and cure period
to which the Tenant is entitled under the Lease has expired;
provided further, however, that under no circumstances shall this
provision be construed to entitle Tenant to multiple notices or
cure periods in connection with a given default under the
Lease.
3. GUARANTOR’S
OBLIGATIONS UNCONDITIONAL .
(a) This Guaranty is an absolute
and unconditional guaranty of payment and of performance, and not
of collection, and shall be enforceable against Guarantor without
the necessity of the commencement by Landlord of any Action against
Tenant, and without the necessity of any notice to Guarantor of
nonpayment, nonperformance or nonobservance by Tenant, or any
notice of acceptance of this Guaranty, or of any other notice or
demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives in advance. The obligations of
Guarantor hereunder are independent of the obligations of
Tenant.
(b) If the Lease is renewed, or
the Term extended, for any period beyond the Expiration Date,
either pursuant to any option granted under the Lease or otherwise,
or if Tenant holds over beyond the Expiration Date, the obligations
of Guarantor hereunder shall extend and apply to the full and
faithful performance and observance of all of the Obligations under
the Lease accruing during any renewal, extension or holdover
period, except as otherwise expressly and specifically provided in
the Lease.
(c) Except as otherwise expressly
and specifically provided in the Lease, this Guaranty is a
continuing guarantee and will remain in full force and effect
notwithstanding, and the liability of Guarantor hereunder shall be
absolute and unconditional irrespective of: (i) any
modifications, alterations or amendments of the Lease (regardless
of whether Guarantor consented to or had notice of same),
(ii) any releases or discharges of Tenant other than the full
release and complete discharge of all of the Obligations,
(iii) Landlord’s failure or delay to assert any claim or
demand or to enforce any of its rights against Tenant,
(iv) any extension of time that may be granted by Landlord to
Tenant, (v) any assignment or transfer of all of any part of
Tenant’s interest under the Lease (whether by Tenant, by
operation of law, or otherwise), (vi) any subletting,
concession, franchising, licensing or permitting of the Premises,
(vii) any changed or different use of the Premises,
(viii) any other dealings or matters occurring between
Landlord and Tenant, (ix) the taking by Landlord of any
additional guarantees, or the receipt by Landlord of any
collateral, from other persons or entities, (x) the release by
Landlord of any other guarantor, (xi) Landlord’s release
of any security provided under the Lease, or
(xii) Landlord’s failure to perfect any landlord’s
lien or other lien or security interest available under applicable
Laws. Without limiting the foregoing, this Guaranty shall be
applicable to any obligations of Tenant arising in connection with
a termination of the Lease, whether voluntary or otherwise.
Guarantor hereby consents, prospectively, to Landlord’s
taking, entering into or otherwise causing any or all of the
foregoing actions or omissions.
(d) Guarantor hereby expressly
agrees that the validity of this Guaranty and the obligations of
Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of the assertion or the failure to
assert by Landlord against Tenant, of any of the rights or remedies
reserved to Landlord pursuant to the provisions of the Lease or by
relief of Tenant from any of Tenant’s obligations under the
Lease or otherwise by (i) the release or discharge of Tenant
in any state or federal creditors’ proceedings, receivership,
bankruptcy or other proceeding; (ii) the impairment,
limitation or modification of the liability of Tenant or the estate
of Tenant in bankruptcy, or of any remedy for the enforcement of
Tenant’s liability under the Lease, resulting from the
operation of any present or future provision of the United States
Bankruptcy Code (11 U.S.C. § 101 et seq., as amended), or from
other statute, or from the order of any court; or (iii) the
rejection, disaffirmance or other termination of the Lease in any
such proceeding. This Guaranty shall continue to be effective
notwithstanding that at any time the payment of any amount due
under the Lease or this Guaranty may be rescinded or must otherwise
be returned by Landlord for any reason, including, without
limitation, the insolvency, bankruptcy, liquidation or
reorganization of Tenant, Guarantor or otherwise, all as though
such payment had not been made, and, in such event, Guarantor shall
pay to Landlord an amount equal to any such payment that has been
rescinded or returned.
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4. WAIVERS OF
GUARANTOR .
(a) Without limitation of the
foregoing, Guarantor waives (i) notice of acceptance of this
Guaranty and notice of dishonor, (ii) notice of any actions
taken by Landlord or Tenant under the Lease or any other agreement
or instrument relating thereto, (iii) notice of any and all
Defaults under the Lease, except to the extent Guarantor is
expressly identified as a party to whom notice is to be provided
under the Lease, (iv) all other notices, demands and protests,
and all other formalities of every kind in connection with the
enforcement of the Obligations, omission of or delay in which, but
for the provisions of this Section 4 , might constitute
grounds for relieving Guarantor of its obligations hereunder,
(v) any requirement that Landlord protect, secure, perfect,
insure or proceed against any security interest or lien, or any
property subject thereto, or exhaust any right or take any action
against Tenant or any collateral, and (vi) the benefit of any
statute of limitations affecting Guarantor’s liability under
this Guaranty.
(b) GUARANTOR HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY
PERSON OR ENTITY WITH RESPECT TO ANY MATTER WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH ANY OR ALL OF THIS GUARANTY; THE
LEASE; ANY CLAIM OF LIABILITY AGAINST OR OBLIGATION OF TENANT IN
ANY MANNER RELATED TO THE PREMISES AND/OR THE PROPERTY; ANY CLAIM
OF INJURY OR DAMAGE IN ANY WAY RELATED TO THE LEASE, THE PREMISES
AND/OR THE PROPERTY; ANY ACT OR OMISSION OF TENANT, ITS AGENTS,
EMPLOYEES, CONTRACTORS, SUPPLIERS, SERVANTS, CUSTOMERS,
CONCESSIONAIRES, FRANCHISEES, PERMITTEES OR LICENSEES; OR ANY
ASPECT OF THE USE OR OCCUPANCY OF, OR THE CONDUCT OF BUSINESS IN,
ON OR FROM THE PREMISES AND/OR THE PROPERTY. GUARANTOR SHALL NOT
IMPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS OR CLAIMS FOR SET-OFF,
RECOUPMENT OR DEDUCTION OF RENT IN ANY ACTION BROUGHT BY LANDLORD
AGAINST GUARANTOR UNDER THIS GUARANTY. GUARANTOR SHALL NOT BE
ENTITLED TO MAKE, AND HEREBY WAIVES, ANY AND ALL DEFENSES AGAINST
ANY CLAIM ASSERTED BY LANDLORD IN ANY SUIT OR ACTION INSTITUTED BY
LANDLORD TO ENFORCE THIS GUARANTY OR THE LEASE. IN ADDITION,
GUARANTOR HEREBY WAIVES, BOTH WITH RESPECT TO THE LEASE AND WITH
RESPECT TO THIS GUARANTY, ANY AND ALL RIGHTS WHICH ARE WAIVED BY
TENANT UNDER THE LEASE, IN THE SAME MANNER AS IF ALL SUCH WAIVERS
WERE FULLY RESTATED HEREIN. THE LIABILITY OF GUARANTOR UNDER THIS
GUARANTY IS PRIMARY AND UNCONDITIONAL.
5. SUBROGATION .
Guarantor shall not be subrogated, and hereby waives and disclaims
any claim or right against Tenant by way of subrogation or
otherwise, to any of the rights of Landlord under the Lease or
otherwise, or in either or both of the Premises and the Property,
which may arise by any of the provisions of this Guaranty or by
reason of the performance by Guarantor of any of its Obligations
hereunder. Guarantor shall look solely to Tenant for any recoupment
of any payments made or costs or expenses incurred by Guarantor
pursuant to this Guaranty. If any amount shall be paid to Guarantor
on account of such subrogation rights at any time when all of the
Obligations shall not have been paid and performed in full,
Guarantor shall hold such amount in trust for Landlord and shall
pay such amount to Landlord immediately following receipt by
Guarantor, to be applied against the Obligations, whether matured
or unmatured, in such order as Landlord may determine. Guarantor
hereby subordinates any liability or indebtedness of Tenant now or
hereafter held by Guarantor to the obligations of Tenant to
Landlord under the Lease.
6. REPRESENTATIONS AND
WARRANTIES OF GUARANTOR . Guarantor represents and warrants
that:
(a) Guarantor is a Delaware
corporation; has all requisite power and authority to enter into
and perform its obligations under this Guaranty; and this Guaranty
is valid and binding upon and enforceable against Guarantor without
the requirement of further action or fulfillment of any
condition.
(b) To the knowledge of
G
