Exhibit 10.16
LEASE AGREEMENT
by and between
IDC REALTY, LLC
as Landlord
and
INTERNET COMMERCE CORPORATION,
as Tenant
August 2, 2000
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the 2nd day
of August, 2000, by and between IDC REALTY, LLC, a Georgia limited liability
company ("Landlord"), and INTERNET COMMERCE CORPORATION, a Delaware corporation
("Tenant"). Subject to all of the terms, provisions, covenants and conditions of
this Lease, and in consideration of the mutual covenants, obligations and
agreements contained in this Lease, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant
agree as follows:
ARTICLE I
BASIC LEASE PROVISIONS
Landlord, for and in consideration of the rents and all other charges and
payments hereunder and of the covenants, agreements, terms, provisions and
conditions to be kept and performed hereunder by Tenant, demises and leases to
Tenant, and Tenant hereby hires and takes from Landlord, the premises described
below, subject to all matters hereinafter set forth and upon and subject to the
covenants, agreements, terms, provisions and conditions of this Lease for the
term hereinafter stated. For purposes of this Lease, the following terms shall
have the meanings ascribed to them below:
Building shall mean the approximately 8,000 square foot structure situated upon
the Land (hereinafter defined) located at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxx of Xxxxxxx, State of Georgia, as well as the portion of the Land on which
the Building and parking areas are located, all as shown on Exhibit A attached
hereto and made a part hereof, as the same currently exists or as it may from
time to time hereafter be expanded or modified.
Commencement Date shall mean the date Landlord delivers possession of the
Building to Tenant, which date shall be the date this Lease is fully executed by
both parties.
Land shall mean that certain tract of land situated in Xxxxxxx County, Georgia
as shown on Exhibit A attached hereto and hereby made a part hereof,
constituting as of the date hereof, approximately 4.97 acres, as it may from
time to time be expanded or otherwise modified.
Lease Year shall mean each consecutive twelve (12) month period during the Term
commencing with the Commencement Date.
Premises shall mean the Building, together with the parking area serving the
Building and all other improvements directly benefiting the Building, and
together with the use of the remaining Land for access to and from the Premises.
Term shall mean sixty (60) months, subject to extension as provided herein.
ARTICLE II
Section 2.1 Premises. The real property demised by this Lease is as
set forth in Article I.
Section 2.2 Term. The Term of this Lease shall begin on the Commencement
Date and shall continue in full force and effect for the Term of this Lease
unless extended or sooner terminated in accordance with the provisions of this
Lease.
Section 2.3 Extension Option. So long as this Lease is in full force and
effect and Tenant is not in default beyond any applicable notice and cure
periods in the performance of any of the covenants or terms and conditions of
this Lease at the time of notification to Landlord or at the time of
commencement of the Extension Period, as that term is hereinafter defined,
Tenant shall have the option (the "Extension Option") to extend the Term for the
entire Premises for one (1) additional period of five (5) years (the "Extension
Period"), at the rate of Twelve Dollars ($12.00) per annum per rentable square
foot. Tenant shall provide Landlord with written notice twelve (12)
months prior to the expiration of the Term of its desire to extend this Lease.
If Tenant fails to timely provide Landlord such notice, then Tenant's option to
extend the Term shall be null and void and of no further force or effect. This
right is personal to Tenant only and may not be assigned or transferred. Any
such assignment or transfer shall be unenforceable as against Landlord.
Section 2.4 Use. The Premises are to be used and occupied by Tenant only
for general office purposes and for no other business or purpose without the
prior written consent of Landlord, which shall not be unreasonably withheld.
Tenant, at its expense, shall comply with all laws, statutes, ordinances,
governmental rules, regulations or requirements ("Laws"), and the provisions of
any recorded documents now existing or hereafter in effect relating to its use,
operation or occupancy of the Premises and shall observe such reasonable rules
and regulations as may be adopted and made available to Tenant by Landlord from
time to time for the safety, care and cleanliness of the Premises or the
Building and for the preservation of good order therein. Landlord shall be
responsible for making all structural modifications to the Premises which are
required by applicable Laws unless such modifications are required due to
Tenant's particular manner of use of the Premises, in which event, Tenant shall
make and pay for all such modifications.
ARTICLE III
Section 3.1 Rental Payments. (a) Base Rent. Commencing on the Commencement
Date and continuing thereafter throughout the Term, Tenant shall pay annual Base
Rent of Eighty Thousand Dollars ($80,000) per year, which is due and payable
each Lease Year during the Term hereof in twelve (12) equal installments of Six
Thousand Six Hundred Sixty-Six and 67/100 Dollars ($6,666.67) per month on the
first (1st) day of each calendar month during the Term, and Tenant shall make
such installments to Landlord at Landlord's address specified in this Lease (or
such other address as may be designated by Landlord from time to time) monthly
in advance.
(b) Partial Month. If the Commencement Date is other than the first (lst)
day of a calendar month or if this Lease expires or terminates on a day other
than the last day of a calendar month, then the installments of Base Rent for
such month or months shall be prorated based upon multiplying the applicable
Base Rent by a fraction, the numerator of which shall be the number of days of
the Term occurring during said commencement or termination month, as the case
may be, and the denominator of which shall be the number of days in such month.
(c) Payment; Late Charge; Past Due Rate. The Base Rent and any and all
other payments, which Tenant is obligated to make to Landlord under this Lease,
shall constitute and are sometimes hereinafter collectively referred to as
"Rent". Tenant shall pay all Rent and other sums of money as shall become due
from and payable by Tenant to Landlord in lawful money of the United States of
America at the times and in the manner provided in this Lease, without demand,
deduction, abatement, setoff, counterclaim or prior notice. Tenant hereby
acknowledges that late payment to Landlord of Rent or other sums due hereunder
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. If any Rent or other
sum due from Tenant is not received within five (5) days after written notice to
Tenant, then Tenant shall pay to Landlord immediately upon Landlord's demand
therefor any attorneys' fees and costs incurred by Landlord by reason of
Tenant's failure to pay Rent and other charges when due hereunder. Additionally,
all Rent under this Lease shall bear interest from the date due until paid at
the lesser of the Prime Rate as established in the most recent Wall Street
Journal plus two (2%) percent per annum or the maximum nonusurious rate of
interest then permitted by the applicable laws of the state in which the
Building is located or the United States of America, whichever shall permit the
higher nonusurious rate, such interest being in addition to and cumulative of
any other rights and remedies which Landlord may have with regard to the failure
of Tenant to make any such payments under this Lease.
Section 3.2 Operating Expenses.
(a) Payment of Operating Expenses by Tenant. Tenant assumes and agrees to
pay directly to the service provider all expenses, costs and disbursements of
every kind and nature relating to or incurred or paid in connection with the
Premises, together with all interest and penalties which may accrue thereon,
including, without limitation, the following:
(i) the cost of all utilities for the Premises, including but not limited
to the cost of water and power, heating, lighting, air conditioning and
ventilating of the Building;
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(ii) the cost of all maintenance and service agreements for the Premises and the
equipment therein, including but not limited to alarm service, security service,
telephone system service, access control, landscaping, pest control and
janitorial service;
(iii) the cost of repairs and general maintenance; and
(iv) all taxes, assessments and governmental charges, whether or not directly
paid by Landlord, whether federal, state, county or municipal and whether they
are imposed by taxing districts or authorities currently taxing the Premises or
by others subsequently created or otherwise, and any other taxes and
assessments, assessed against or attributable to the Building of which the
Premises are a part (including the parking areas) or its operation, shown as the
frontage property on the attached Exhibit A consisting of approximately one-half
(1/2) of an acre, excluding, however, federal and state taxes on income, death
taxes, franchise taxes and any taxes imposed or measured on or by the income of
Landlord from the operation of the Premises or imposed in connection with any
change of ownership of the Premises together with the reasonable cost (including
attorneys, consultants and appraisers) of any negotiation, contest or appeal
pursued by Landlord or Tenant in an effort to reduce any such tax, assessment or
charge, which costs shall be equitably apportioned between the Premises and the
remaining Land ("Real Estate Taxes"). The Building (including parking areas) and
portion of the Land on which the Building lies, are not separately assessed from
the remaining portions of the Land, but the Building and the portion of the Land
on which it lies are separately valued for tax purposes as is the remaining
Land. Therefore, Tenant shall be responsible for only paying the Real Estate
Taxes applicable to the Building and the one-half (1/2) acre of Land on which
the Building and a portion of the parking area are located, all as shown on the
attached Exhibit A. Landlord shall provide Tenant with a copy of the tax xxxx it
receives on a yearly basis and a breakdown of the valuations applied to each lot
constituting the Land and the improvements thereon.
(b) Landlord's Insurance; Real Estate Taxes. Tenant shall reimburse
Landlord within thirty (30) days of Tenant's receipt of a statement therefor,
for the cost of all of Landlord's insurance relating to the Premises as set
forth in Section 6.4(a) herein. Landlord shall also submit to Tenant within ten
(10) days of its receipt, the xxxx for Real Estate Taxes for the Premises, and
Tenant shall promptly pay such xxxx prior to its due date. Each calendar year
within ten (10) days of when due, Tenant agrees to provide Landlord with
evidence of the payment of Real Estate Taxes described in clause (a) (iv) above
ARTICLE IV
Section 4.1 Occupancy of Premises. Tenant shall throughout the Term of
this Lease, at its own expense, maintain the Premises and all improvements
thereon and keep them free from waste, damage or nuisance, and shall deliver up
the Premises in a clean and sanitary condition at the expiration or termination
of this Lease or the termination of Tenant's right to occupy the Premises by
Tenant, in good repair and condition, reasonable wear and tear and damage by
casualty excepted. Upon the expiration or termination of this Lease, Landlord
shall have the right to reenter and resume possession of the Premises.
Section 4.2 Entry for Repairs and Inspection. Tenant shall permit Landlord
and its agents to enter the Premises at all reasonable times accompanied by a
representative of Tenant, with prior reasonable notice except in the event of an
emergency, to inspect the same; to show the Premises to prospective tenants
(within twelve (12) months of the expiration of the term of this Lease), or
interested parties such as prospective lenders and purchasers; to exercise its
rights under this Lease; to clean, repair, alter or improve the Premises or the
Building; to discharge Tenant's obligations when Tenant has failed to do so
within the time required under this Lease; to post notices of nonresponsibility
and similar notices and "For Sale" signs at any time and to place "For Lease"
signs upon or adjacent to the Building or the Premises at any time within three
(3) months of the expiration of the term of this Lease. Tenant shall permit
Landlord and its agents to enter the Premises at any time in the event of an
emergency. When required by any applicable Laws, governmental action or police
directive, Landlord may temporarily close entrances, doors, corridors, elevators
or other facilities without liability to Tenant by reason of such closure.
Landlord shall use commercially reasonable efforts not to interfere with the
operation of Tenant's business within or access to the Premises. Any latent
defects discovered by Tenant within 30 days after the Commencement Date shall be
repaired by Landlord at its sole cost and expense, as promptly as practicable
and with as little interference to Tenant's construction (or operation of
business, as applicable) as practicable.
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Section 4.3 Hazardous Materials.
(a) As used in this Lease, the term "Hazardous Materials" shall mean and
include any substance that is or contains petroleum, asbestos, polychlorinated
biphenyls, lead, or any other substance, material or waste which is now or is
hereafter classified or considered to be hazardous or toxic under any federal,
state or local law, rule, regulation or ordinance relating to pollution or the
protection or regulation of human health, natural resources or the environment
(collectively "Environmental Laws") or poses or threatens to pose a hazard to
the health or safety of persons on the Premises or any adjacent property.
(b) Tenant agrees that during its use and occupancy of the Premises it
will not introduce, bring onto, dispose, use, store, transport, or manufacture
Hazardous Materials on or about the Premises.
(c) If Tenant's use of Hazardous Materials on or about the Premises
results in a release, discharge or disposal of Hazardous Materials on, in, at,
under, or emanating from, the Premises or the property in which the Premises are
located, Tenant agrees to investigate, clean up, remove or remediate such
Hazardous Materials in full compliance with (a) the requirements of (i) all
Environmental Laws and (ii) any governmental agency or authority responsible for
the enforcement of any Environmental Laws; and (b) any additional requirements
of Landlord that are reasonably necessary to protect the value of the Premises
or the property in which the Premises are located. Landlord shall also have the
right, but not the obligation, to take whatever action with respect to any such
Hazardous Materials that it reasonably deems necessary to protect the value of
the Premises or the property in which the Premises are located. All costs and
expenses paid or incurred by Landlord in the exercise of such right shall be
payable by Tenant upon demand.
(d) Upon reasonable notice to Tenant, Landlord may inspect the Premises
for the purpose of determining whether there exists on the Premises any
Hazardous Materials or other condition or activity that is in violation of the
requirements of this Lease or of any Environmental Laws. The right granted to
Landlord herein to perform inspections shall not create a duty on Landlord's
part to inspect the Premises, or liability on the part of Landlord for Tenant's
use, storage or disposal of Hazardous Materials, it being understood that Tenant
shall be solely responsible for all liability in connection therewith. Landlord
shall use commercially reasonable efforts not to interfere with the operation of
Tenant's business within or access to the Premises.
(e) Tenant shall surrender the Premises to Landlord upon the expiration or
earlier termination of this Lease free of debris, waste or Hazardous Materials
placed on or about the Premises by Tenant or its agents, employees, contractors
or invitees and shall correct any violation of any Environmental Laws caused by
Tenant.
(f) Tenant agrees to indemnify and hold harmless Landlord from and against
any and all claims, losses (including, without limitation, loss in value of the
Premises or the property in which the Premises are located), liabilities and
expenses (including reasonable attorney's fees) sustained by Landlord
attributable to (i) any Hazardous Materials placed on or about the Premises by
Tenant or its agents, employees, contractors or invitees or (ii) Tenant's breach
of any provision of this Section.
(g) Landlord shall be responsible, at its sole cost and expense, for
removal of all Hazardous Materials from the Premises prior to the delivery date
if such removal is required by any applicable governmental agency or law. Any
Hazardous Materials discovered by Tenant in or about the Premises which were not
brought onto or introduced onto the Premises by Tenant or any of its employees,
agents, contractors, subcontractors, or other representatives, and any Hazardous
Materials that have come onto or under the Premises from another property, shall
be removed by Landlord or such responsible third party if such removal is
required by any applicable governmental agency or law, at Landlord's or such
other party's sole cost and expense, as promptly as practicable and with as
little interference to Tenant's construction (or operation of business, as
applicable) as practicable. To the extent such removal or clean-up by Landlord
or other responsible party materially interferes with Tenant's ability to
operate its business within the Premises and Tenant is unable to operate all or
a portion of its business in the ordinary course, then Tenant's Rent shall be
abated commencing on the first (1st) day that Tenant is unable to operate in all
or a portion of the Premises but only to the extent Tenant is so unable to
operate. Upon the earlier of completion of such removal/clean-up or commencement
of Tenant's operations within the affected portion of the Premises. Tenant shall
commence paying Rent again in accordance with the terms hereof.
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(h) The provisions of this Section shall survive the expiration or earlier
termination of this Lease.
ARTICLE V
Section 5.1 Leasehold Improvements.
(a) Acceptance of Premises. Tenant has made a complete inspection of the
Premises and shall accept the Premises in its "AS IS," "WHERE IS," and "WITH ALL
FAULTS" condition on the Commencement Date without recourse to Landlord.
However, this provision is not intended to relieve Landlord of any of its
obligations set forth herein as of the Commencement Date. Except as expressly
provided in this Lease, Landlord shall have no obligation to furnish, equip or
improve the Premises. The taking of possession of the Premises by Tenant shall
be conclusive evidence against Tenant that (i) Tenant accepts the Premises as
being suitable for its intended purpose and in a good and satisfactory
condition, (ii) acknowledges that the Premises comply fully with Landlord's
covenants and obligations under this Lease and (iii) waives any defects in the
Premises and its appurtenances, subject to the 30-day right set forth in Section
4.2 herein.
(b) Improvements and Alterations. Tenant shall not make or allow to be
made (except as otherwise provided in this Lease) any improvements, alterations
or physical additions (including fixtures) in or to the Premises, without first
obtaining the reasonable written consent of Landlord except for non-structural
alterations costing less than $20,000 which shall not require Landlord's
consent. However, Tenant must notify Landlord prior to making any such
alterations.
(c) Title to Alterations. All alterations, physical additions,
modifications or improvements in or to the Premises (including fixtures) shall,
when made, become the property of Landlord and shall be surrendered to Landlord
upon termination or expiration of this Lease or termination of Tenant's right to
occupy the Premises, whether by lapse of time or otherwise, without any payment,
reimbursement or compensation therefor; provided, however, that Tenant shall
retain title to and shall remove from the Premises movable equipment, removable
alterations, or furniture owned by Tenant and Tenant shall repair any damage
caused thereby and Tenant shall return the Premises to their preexisting
condition, normal wear and tear and casualty excepted. Notwithstanding any of
the foregoing to the contrary, Landlord may require, at the time Landlord grants
its consent to Tenant to make certain alterations, additions or improvements,
Tenant to remove all alterations, additions or improvements to the Premises
which have been placed therein or thereon by Tenant during the Term, including,
without limitation, any cabling or other computer, satellite or
telecommunications equipment or hardware, whether or not such alterations,
additions, or improvements are located in the Premises upon the expiration or
earlier termination of this Lease or the termination of Tenant's right to
possession of the Premises and restore the same to Building standard condition,
reasonable wear and tear excepted. The rights conferred to Landlord under this
Section 6.1 (c) shall be in addition to (and not in conflict with) any other
rights conferred on Landlord by this Lease, in equity or at law.
(d) Personal Property Taxes; Sales, Use and Excise Taxes. Tenant shall be
responsible for and shall pay ad valorem taxes and other taxes, assessments or
charges levied upon or applicable to Tenant's personal property and all license
fees and other fees or charges imposed on the business conducted by Tenant on
the Premises before such taxes, assessments, charges or fees become delinquent.
Tenant shall also pay to Landlord with all Rent due and owing under this Lease
an amount equal to any sales, rental, excise and use taxes levied, but excludes
any income, estate or franchise taxes, imposed or assessed by the State or any
political subdivision thereof or other taxing authority upon any amounts
classified as rent.
Section 5.2 Repairs by Landlord. All repairs, alterations or additions
that affect the Premises' structural components shall be made by Landlord or its
contractors only at Landlord's cost. Landlord's only obligation under this
provision shall be to keep in good repair the structure and roof of the
Building. Landlord shall not be required to make any improvements to or repairs
of any kind or character to the mechanical, electrical, plumbing or other
systems or to the leasehold improvements located in or serving the Premises
during the Term and all such repairs or improvements shall be made by Tenant
solely at Tenant's cost and expense.
Section 5.3 Repairs by Tenant. Subject to Section 5.2 of this Lease,
Tenant shall be responsible, at its own cost and expense, for all repair or
replacement of the mechanical, electrical, plumbing, and other Building systems
as well as the floor coverings within the Premises and any damage to the
leasehold improvements in the
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Premises, together with any other damage to the Premises or any part thereof.
Tenant is also obligated to perform, at Tenant's own cost and expense and risk,
all other maintenance and repairs necessary or appropriate to cause the Premises
to be maintained in good condition and suitable for Tenant's intended commercial
purpose.
Section 5.4 Liens. Tenant shall keep the Premises and the Building free
from any liens, (including but not limited to liens filed against the Premises
by any governmental agency, authority or organization) arising out of any work
performed, materials ordered or obligations incurred by or on behalf of Tenant,
and Tenant hereby agrees to indemnify and hold Landlord, its agents, employees,
independent contractors, officers, directors, partners, and shareholders
harmless from any liability, cost or expense for such liens. Tenant shall cause
any such lien imposed to be released of record by payment or posting of the
proper bond within thirty (30) days after the earlier of Tenant's notice of the
existence of the lien or written request by Landlord. Tenant shall give Landlord
written notice of Tenant's intention to perform work on the Premises which might
result in any claim of lien, at least ten (10) days prior to the commencement of
such work to enable Landlord to post and record a notice of nonresponsibility or
other required notice before commencement of any such work. If Tenant fails to
remove any lien within the prescribed thirty (30) day period, then Landlord may
do so at Tenant's expense and Tenant's reimbursement to Landlord for such
amount, including reasonable attorneys' fees and costs, shall be deemed
Additional Rent. Tenant shall have no power to do any act or make any contract
which may create or be the foundation for any lien, mortgage or other
encumbrance upon the reversion or other estate of Landlord, or of any interest
of Landlord in the Premises.
Section 5.5 Indemnification. Tenant shall defend, indemnify and hold
harmless Landlord, its agents, employees, officers, directors, partners and
shareholders ("Landlord's Related Parties") from and against any and all
liabilities, judgments, demands, causes of action, claims, losses, damages,
costs and expenses, including reasonable attorneys' fees and costs, arising out
of the use, occupancy, conduct, operation, or management of the Premises by, or
the willful misconduct or negligence of, Tenant, its officers, contractors,
licensees, agents, servants, employees, guests, invitees, or visitors in or
about the Building or Premises or arising from any breach or default under this
Lease by Tenant, or arising from any accident, injury, or damage, howsoever and
by whomsoever caused, to any person or property, occurring in or about the
Building or Premises. This indemnification shall survive termination or
expiration of this Lease. This provision shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the negligence or willful misconduct of Landlord, or its
officers, contractors, licensees, agents, employees, or invitees.
Landlord shall defend, indemnify and hold harmless Tenant, its
agents, employees, officers, directors, partners and shareholders ("Tenant's
Related Parties") from and against any and all liabilities, judgments, demands,
causes of action, claims, losses, damages, costs and expenses, including
reasonable attorneys' fees and costs, arising out of the use or operation of the
Building or the Land by, or the willful misconduct or negligence of, Landlord,
its officers, contractors, licensees, agents, servants, employees, guests,
invitees, or visitors in or about the Building or the Land or arising from any
breach or default under this Lease by Landlord. This indemnification shall
survive termination or expiration of this Lease. This provision shall not be
construed to make Landlord responsible for loss, damage, liability or expense
resulting from injuries to third parties caused by the negligence or willful
misconduct of Tenant, or its officers, contractors, licensees, agents,
employees, customers or invitees.
ARTICLE VI
Section 6.1 Condemnation.
(a) Total Taking. In the event of a taking or damage related to the
exercise of the power of eminent domain, by any agency, authority, public
utility, person, corporation or entity empowered to condemn property (including
without limitation a voluntary conveyance by Landlord in lieu of such taking or
condemnation) (individually, a "Taking") of (i) the entire Premises, (ii) 25% or
more of the Premises as to prevent or substantially impair its use by Tenant
during the Term of this Lease or (iii) portions of the Building required for
reasonable access to, or reasonable use of, the Premises (individually, a "Total
Taking"), the rights of Tenant under this Lease and the leasehold estate of
Tenant in and to the Premises shall cease and terminate as of the date upon
which title to the property taken passes to and vests in the condemnor or the
effective date of any order for possession if issued prior to the date title
vests in the condemnor ("Date of Taking").
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(b) Partial Taking. In the event of a Taking of less than 25% of the
Premises which does not constitute a Total Taking during the Term of this Lease
(individually, a "Partial Taking"), the rights of Tenant under this Lease and
the leasehold estate of Tenant in and to the portion of the property taken shall
cease and terminate as of the Date of Taking, and an adjustment to the Rent
shall be equitably made based upon the reduced area of the Premises. In such
event, Landlord shall restore the Premises with the condemnation proceeds it
receives from the condemning authority but Landlord will not be required to
spend in excess of such proceeds. During the period of restoration. Rent shall
xxxxx to the extent Tenant is unable to use the Premises for the operation of
its business.
(c) Rent Adjustment. If this Lease is terminated pursuant to this Section
6.1, Landlord shall refund to Tenant any prepaid unaccrued Rent and any other
sums due and owing to Tenant (less any sums then due and owing Landlord by
Tenant), and Tenant shall pay to Landlord any remaining sums due and owing
Landlord under this Lease, each prorated as of the Date of Taking where
applicable.
(d) Repair. If this Lease is not terminated as provided for in this
Section 6.1, then Landlord at its expense shall promptly repair and restore the
Building and/or the Premises to approximately the same condition that existed at
the time Tenant entered into possession of the Premises, wear and tear excepted
(and Landlord shall have no obligation to repair or restore Tenant's
improvements to the Premises or Tenant's Property), except for the part taken,
so as to render the Building as complete an architectural unit as practical, but
only to the extent of the condemnation award received by Landlord for the
damage.
(e) Awards and Damages. Landlord reserves all rights to damages and awards
paid because of any Partial or Total Taking of the Premises. Tenant assigns to
Landlord any right Tenant may have to the damages or award. Further, Tenant
shall not make claims against Landlord or the condemning authority for damages.
Notwithstanding, Tenant may claim and recover from the condemning authority a
separate award for Tenant's moving expenses, business dislocation damages,
Tenant's Property and any other award that would not reduce the award payable to
Landlord.
Section 6.2 Force Majeure. Neither Landlord nor Tenant shall be required
to perform any term, provision, agreement, condition or covenant in this Lease
(other than the obligations of Tenant to pay Rent as provided herein) so long as
such performance is delayed or prevented by "Force Majeure", which shall mean
acts of God, strikes, injunctions, lockouts, material or labor restrictions by
any governmental authority, civil riots, floods, fire, theft, public enemy,
insurrection, war, court order, requisition or order of governmental body or
authority, and any other cause not reasonably within the control of Landlord or
Tenant and which by the exercise of due diligence Landlord or Tenant is unable,
wholly or in part, to prevent or overcome. Neither Landlord nor any mortgagee
shall be liable or responsible to Tenant for any loss or damage to any property
or person occasioned by any Force Majeure, or for any damage or inconvenience
which may arise through repair or alteration of any part of the Premises as a
result of any Force Majeure.
Section 6.3 Fire or Other Casualty. (a) Damage. If any portion of the
Premises shall be destroyed or damaged by fire or any other casualty, Tenant
shall immediately give notice thereof to Landlord. If any portion of the
Premises shall be destroyed or damaged by fire or any other casualty then, (i)
if the fire or other casualty is not a Major Casualty (as defined below),
Landlord shall restore and repair the portion of the Premises damaged and, if
the Premises are rendered untenantable in whole or in part by reason of such
casualty as determined by Landlord, Tenant shall be entitled to an equitable
abatement of the Rent hereunder until such time as the damaged portion of the
Premises (exclusive of any of Tenant's Property or Tenant's improvements) are
repaired or restored by Landlord to the extent required hereby, or (ii) if
twenty-five percent (25%) or more of the Building is destroyed or damaged by
fire or any other casualty (a "Major Casualty"), then Landlord may terminate
this Lease whereupon all Rent accrued up to the time of such termination and any
other sums due and owing shall be paid by Tenant to Landlord (less any sums then
due and owing Tenant by Landlord) and any remaining sums due and owing by
Landlord to Tenant shall be paid to Tenant. In no event shall Landlord have any
obligation to repair or restore any such destruction or damage, except as
provided herein.
(b) Repair. Landlord shall give Tenant written notice of its decisions,
estimates or elections under this Section 6.3 within sixty (60) days after any
such damage or destruction. If Landlord elects or is obligated to repair or
restore any portion of the Premises, Landlord shall notify Tenant of the
estimated time that repairs and/or restoration of the Premises and Building are
to take and in the event that such repairs and/or restoration are anticipated to
take
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more than two hundred forty (240) days after the date of the casualty, then
Tenant may terminate this Lease within fifteen (15) days after such notice by
Landlord to Tenant. If Landlord has elected or is obligated to repair and
restore the Premises and Tenant does not elect to terminate this Lease as
provided above, this Lease shall continue in full force and effect, and the
repairs will be made within a reasonable time thereafter (not to exceed two
hundred forty (240) days), subject to the provisions of Section 6.2 of this
Lease. Should the repairs not be completed within that period, then Tenant shall
have the option of terminating this Lease by written letter of termination. If
this Lease is terminated as herein permitted, Landlord shall refund to Tenant
any prepaid Rent (unaccrued as of the date of damage or destruction) and any
other sums due and owing by Landlord to Tenant (less any sums then due and owing
Landlord by Tenant) and any remaining sums due and owing by Tenant to Landlord
shall be paid to Landlord. If Landlord has elected or is obligated to repair and
reconstruct the Premises to the extent stated above, the Term will be extended
for a time equal to the period from the occurrence of such damage to the
completion of such repair and reconstruction. If Landlord elects or is obligated
to rebuild the Premises, Landlord shall only be obligated to restore or rebuild
the Premises to approximately the same condition as existed at the time Tenant
entered into possession of the Premises, wear and tear excepted and not be
required to rebuild, repair or replace any part of Tenant's Property or Tenant's
leasehold improvements. Notwithstanding anything contained in this Lease to the
contrary, if Landlord shall elect or is obligated to repair and restore the
Premises pursuant to this Section 6.3, in no event shall Landlord be required to
expend under this Article VI any amount in excess of the proceeds actually
received from the insurance carried by Landlord pursuant to Section 6.4(a) of
this Lease. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or destruction or the disregard of the repair thereof except to the extent
caused by Landlord's negligence or misconduct.
Section 6.4 Insurance.
(a) Landlord shall maintain, or cause to be maintained, standard fire and
extended coverage insurance on the Building for the full replacement cost
thereof. The insurance required to be obtained by Landlord may be obtained by
Landlord through blanket or master policies insuring other entities or
properties owned or controlled by Landlord. All insurance obtained by Landlord
shall be obtained at competitive rates for office buildings comparable to the
Building in the Carrollton, Georgia market with deductibles in such amounts as
are customary for insurance policies covering office buildings comparable to the
Building in the Carrollton, Georgia market.
(b) Tenant shall, at its sole cost and expense, procure and maintain
during the Term of this Lease commercial general liability insurance (including
personal injury liability, premises/operation, property damage, independent
contractors and broad form contractual coverage in support of the
indemnifications of Landlord by Tenant under this Lease) in amounts of not less
than a combined single limit of $1,000,000; property insurance with respect to
Tenant's Property, and all leasehold improvements, alterations and additions
made by Tenant, to be written on an "all risk" basis for full replacement cost;
and comprehensive catastrophe liability insurance; all maintained with companies
and on forms reasonably approved by Landlord and in such amounts as are required
herein and endorsed to include Landlord as an additional insured, with respect
to liability only with the premiums fully paid on or before the due dates. The
insurer must be licensed to do business in the state of Georgia. In the event
that Tenant fails to take out or maintain any policy required by this Section
6.4 to be maintained by Tenant, such failure shall be a defense to any claim
asserted by Tenant against Landlord by reason of any loss sustained by Tenant
that would have been covered by such policy, notwithstanding that such loss may
have been proximately caused solely or partially by the negligence or willful
misconduct of Landlord or any of Landlord's Related Parties. If Tenant does not
procure insurance as required, Landlord may, after 5 days notice and cure, upon
advance written notice to Tenant, cause this insurance to be issued and Tenant
shall pay to Landlord the premium for such insurance within ten (10) days of
Landlord's demand, plus interest at the past due rate provided for in Section
3.1(c) of this Lease until repaid by Tenant. The liability policy of insurance
required to be maintained by Tenant shall specifically make reference to the
indemnifications by Tenant in favor of Landlord under this Lease and shall
provide that Landlord shall be given at least thirty (30) days' prior written
notice of any cancellation or nonrenewal of any such policy. A certificate
evidencing each such policy shall be deposited with Landlord by Tenant on or
before the Commencement Date, and a replacement certificate evidencing each
subsequent policy shall be deposited with Landlord at least thirty (30) days
prior to the expiration of the preceding such policy. All insurance policies
obtained by Tenant shall be written as primary policies (primary over any
insurance carried by Landlord), not contributing with and not in excess of
coverage which Landlord may carry, if any.
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Section 6.5 Waiver of Subrogation Rights. Each party hereto waives all
rights of recovery, claims, actions or causes of actions arising in any manner
in its (the "Injured Party's") favor and against the other party for loss or
damage to the Injured Party's property located within or constituting a part or
all of the Premises, to the extent the loss or damage: (a) is covered by the
Injured Party's insurance; or (b) would have been covered by the insurance the
Injured Party is required to carry under this Lease, whichever is greater,
regardless of the cause or origin, including the sole, contributory, partial,
joint, comparative or concurrent negligence of the other party. This waiver also
applies to each party's directors, officers, employees, shareholders, partners,
representatives and agents. All insurance carried by either Landlord or Tenant
covering the losses and damages described in this Section 6.5 shall provide for
such waiver of rights of subrogation by the Injured Party's insurance carrier to
the maximum extent that the same is permitted under the laws and regulations
governing the writing of insurance within the state in which the Building is
located. Both parties hereto are obligated to obtain such a waiver and provide
evidence to the other party of such waiver. The waiver set forth in this Section
6.5 shall be in addition to, and not in substitution for, any other waivers,
indemnities or exclusions of liability set forth in this Lease.
ARTICLE VII
Section 7.1 Default by Tenant. The occurrence of any one or more of the
following events beyond the notice periods set forth in Section 7.2 shall
constitute a default by Tenant under this Lease:
(a) Tenant shall fail to pay to Landlord any Rent or any other
monetary charge due from Tenant hereunder as and when due and payable;
(b) Tenant breaches or fails to comply with any term, provisions,
conditions or covenant of this Lease, other than as described in Section 7.1(a),
or with any of the Building rules and regulations now or hereafter established
to govern the operation of the Premises;
(c) A Transfer (hereinafter defined) shall occur, without the prior
written approval of Landlord;
(d) The interest of Tenant under this Lease shall be levied on under
execution or other legal process;
(e) Any petition in bankruptcy or other insolvency proceedings shall be
filed by or against Tenant, or any petition shall be filed or other action taken
to declare Tenant a bankrupt or to delay, reduce or modify Tenant's debts or
obligations or to reorganize or modify Tenant's capital structure or
indebtedness or to appoint a trustee, receiver or liquidator of Tenant or of any
property of Tenant, or any proceeding or other action shall be commenced or
taken by any governmental authority for the dissolution or liquidation of Tenant
and, within sixty (60) days hereafter, Tenant fails to secure a discharge
thereof;
(f) Tenant shall become insolvent, or Tenant shall make an assignment for
the benefit of creditors, or Tenant shall make a transfer in fraud of creditors,
or a receiver or trustee shall be appointed for Tenant or any of its properties;
(g) Tenant shall abandon or vacate (for a period in excess of 180 days)
the Premises or any substantial portion thereof or fails to operate its business
in the Premises for any reason other than destruction or condemnation of the
Premises; or
(h) Tenant shall do or permit to be done anything which creates a lien
upon the Premises and fails to remove the lien in accordance with Section 5.4
herein.
Section 7.2 Landlord's Remedies. Upon occurrence of any default by Tenant
under this Lease and (i) if the event of default described in Section 7.1(a) is
not cured within ten (10) days after written notice from Landlord of such
default; or (ii) the event described in Section 7.1 (c) is not cured within
fifteen (15) days after written notice from Landlord of such default, or (iii)
the events described in Sections 7.1(b), (d), (f) and (g) are not cured within
thirty (30) days after written notice from Landlord of such default unless such
default cannot be cured within 30 days but Tenant diligently prosecutes such
cure to completion (there being no notice and cure period for events of defaults
described in Sections 7.1 (e) and (h) except as otherwise set forth herein), the
Landlord shall have the option
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to do and perform any one or more of the following in addition to, and not in
limitation of, any other remedy or right permitted it by law or in equity or by
this Lease:
(a) Continue this Lease in full force and effect, and this Lease shall
continue in full force and effect as long as Landlord does not terminate this
Lease, and Landlord shall have the right to collect Rent, Additional Rent and
other charges when due.
(b) Terminate this Lease, and Landlord may forthwith repossess the
Premises and be entitled to recover as damages a sum of money equal to the total
of (i) the cost of recovering the Premises, (ii) the cost of removing and
storing Tenant's or any other occupant's property, (iii) the unpaid Rent and any
other sums accrued hereunder at the date of termination, (iv) a sum equal to the
amount, if any, by which the present value of the total Rent and other benefits
which would have accrued to Landlord under this Lease for the remainder of the
Term, if the terms of this Lease had been fully complied with by Tenant,
discounted at the prime rate of interest as then quoted by the Wall Street
Journal plus two percent (2%) exceeds the total fair market value of the
Premises for the balance of the Term (it being the agreement of the parties
hereto that Landlord shall receive the benefit of its bargain), (v) the cost of
reletting the Premises including, without limitation, the cost of restoring the
Premises to the condition necessary to rent the Premises at the prevailing
market rental rate, normal wear and tear excepted, (vi) any increase in
insurance premiums caused by the vacancy of the Premises, (vii) the amount of
any unamortized improvements to the Premises paid for by Landlord, (viii) the
amount of any unamortized brokerage commission or other costs paid by Landlord
in connection with the leasing of the Premises and (ix) any other sum of money
or damages owed by Tenant to Landlord. In the event Landlord shall elect to
terminate this Lease, Landlord shall at once have all the rights of reentry upon
the Premises, without becoming liable for damages, or guilty of trespass.
(c) Terminate Tenant's right of occupancy of the Premises and reenter and
repossess the Premises by entry, forcible entry or detainer suit or otherwise,
without demand or notice of any kind to Tenant and without terminating this
Lease, without acceptance of surrender of possession of the Premises, and
without becoming liable for damages or guilty of trespass, in which event
Landlord may, but shall be under no obligation to, relet the Premises or any
part thereof for the account of Tenant for a period equal to or lesser or
greater than the remainder of the Term of the Lease on whatever terms and
conditions Landlord, at Landlord's sole discretion, deems advisable. Tenant
shall be liable for and shall pay to Landlord all Rent payable by Tenant under
this Lease (plus interest at the past due rate provided in Section 3.1 (c) of
this Lease if in arrears) plus an amount equal to (i) the cost of recovering
possession of the Premises, (ii) the cost of removing and storing any of
Tenant's or any other occupant's property left on the Premises after reentry,
(iii) the cost of decorations, repairs, changes, alterations and additions to
the Premises, (iv) the cost of any attempted reletting or reletting and the
collection of the rent accruing from such reletting, (v) the cost of any
brokerage fees or commissions payable by Landlord in connection with any
reletting or attempted reletting, (vi) any other costs incurred by Landlord in
connection with any such reletting or attempted reletting, (vii) the cost of any
increase in insurance premiums caused by the termination of possession of the
Premises, (viii) the cost of any increase in insurance premiums caused by the
termination of possession of the Premises, (ix) the amount of any unamortized
improvements to the Premises paid for by Landlord, (x) the amount of any
unamortized brokerage commissions or other costs paid by Landlord in connection
with the leasing of the Premises and (xi) any other sum of money or damages owed
by Tenant to Landlord at law, in equity or hereunder, all reduced by any sums
received by Landlord through any reletting of the Premises; provided, however,
that in no event shall Tenant be entitled to any excess of any sums obtained by
reletting over and above Rent provided in this Lease to be paid by Tenant to
Landlord. For the purpose of such reletting Landlord is authorized to decorate
or to make any repairs, changes, alterations or additions in or to the Premises
that may be necessary. Landlord may file suit to recover any sums falling due
under the terms of this Section 7.2(c) from time to time, and no delivery to or
recovery by Landlord of any portion due Landlord hereunder shall be any defense
in any action to recover any amount not theretofore reduced to judgment in favor
of Landlord. No reletting shall be construed as an election on the part of
Landlord to terminate this Lease unless a written notice of such intention is
given to Tenant by Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous default and/or exercise its rights under Section 7.3(b) of
this Lease.
(d) Enter upon the Premises and do whatever Tenant is obligated to do
under the terms on this Lease; and Tenant agrees to reimburse Landlord on demand
for any expenses which Landlord may incur in effecting compliance with Tenant's
obligations under this Lease plus interest at the past due rate provided in this
Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action except
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for Landlord's negligence and willful misconduct. No action taken by Landlord
under this Section 8.2(d) shall relieve Tenant from any of its obligations under
this Lease or from any consequences or liabilities arising from the failure to
perform such obligations.
(e) Exercise any and all other remedies available to Landlord in this
Lease, at law or in equity.
Section 7.3 Waiver of Duty to Relet or Mitigate. Notwithstanding anything
contained herein to the contrary, to the full extent permitted under applicable
law, Tenant and Landlord agree that Landlord shall have no duty to relet the
Premises or otherwise mitigate damages under this Lease and Tenant hereby
releases Landlord from any and all duty to relet the Premises or otherwise
mitigate damages. Tenant agrees that Landlord shall not be liable, nor shall
Tenant's obligations hereunder be diminished, because of Landlord's failure to
relet the Premises or collect rent due with respect to such reletting.
Furthermore, Tenant hereby waives any and all rights to plead such failure of
Landlord to mitigate damages as an affirmative defense in any proceeding based
on any Default by Tenant under this Lease. In the event, and only in the event,
that (despite such waiver and contrary to the intent of the parties hereunder)
applicable law requires Landlord to attempt to mitigate damages, Landlord and
Tenant agree that any such duty to mitigate shall be satisfied and Landlord
shall be deemed to have used objectively reasonable efforts to fill the Premises
by doing the following: (a) posting a "For Lease" sign on the Premises; (b)
advising Landlord's leasing agent of the availability of the Premises; and (c)
advising at least one outside commercial brokerage entity of the availability of
the Premises; provided, however, that Landlord shall not be obligated to relet
the Premises before leasing any other property under the ownership or control of
Landlord. If Landlord receives any payments from the reletting of the Premises
and is required to mitigate damages (despite the intent of the parties
hereunder), any such payment shall first be applied to any costs or expenses
incurred by Landlord as a result of Tenant's Default under this Lease.
Section 7.4 Waiver of Certain Rights. Tenant hereby expressly waives any
and all rights Tenant may have under applicable state law to its right of
redemption. Tenant hereby waives any and all liens (whether statutory,
contractual or constitutional) it may have or acquire as a result of a breach by
Landlord under this Lease. Tenant also waives and releases any offset rights it
may have against Landlord, including without limitation the rights conferred
upon applicable state law, except for rights otherwise expressly set forth
herein.
Section 7.5 Non-Waiver. Failure on the part of Landlord to complain of any
action or nonaction on the part of Tenant, no matter how long the same may
continue, shall not be deemed to be a waiver by Landlord of any of its rights
under this Lease. Further, it is covenanted and agreed that no waiver at any
time of any of the provisions hereof by Landlord shall be construed as a waiver
of any of the other provisions hereof and that a waiver at any time of any of
the provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or approval by Landlord to or of any action
by Tenant requiring Landlord's consent or approval shall not be deemed to waive
or render unnecessary Landlord's consent or approval to or of any subsequent
similar act by Tenant. Payment by Tenant to Landlord of any amount due hereunder
shall not be a waiver of any Landlord's default which may exist at the time of
such payment, or a waiver of Tenant's right to contest the amount of such
payment.
Section 7.6 Holding Over. In the event Tenant remains in possession of the
Premises after the expiration or termination of this Lease without the execution
of a new lease, then Tenant, at Landlord's option, shall be deemed to be
occupying the Premises as a tenant at will at a base rental equal to one hundred
fifty percent (150%) of the then applicable Base Rent, and shall otherwise
remain subject to all the conditions, provisions and obligations of this Lease
insofar as the same are applicable to a tenancy at will, including without
limitation the payment of all other Rent; provided, however, nothing contained
herein shall require Landlord to give Tenant more than thirty (30) days prior
written consent to terminate Tenant's tenancy-at-will. No holding over by Tenant
after the expiration or termination of this Lease shall be construed to extend
or renew the Term or in any other manner be construed as permission by Landlord
to hold over. Tenant shall indemnify Landlord (y) against all claims for damages
by any other tenant to whom Landlord may have leased all or any part of the
Premises effective upon the termination or expiration of this Lease, and (z) for
all other reasonable losses, costs and expenses, including reasonable attorneys'
fees, incurred by reason of such holding over. Notwithstanding the foregoing.
Tenant shall not be deemed to be in holdover if Landlord and Tenant are in good
faith negotiations of a renewal of the Lease and an amendment to the Lease
evidencing such renewal is executed within 30 days after expiration of the Term.
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Section 7.7 Abandonment of Personal Property. Any personal property left
on or about the Premises at the expiration or termination of this Lease, the
termination of Tenant's right to occupy the Premises or the abandonment,
desertion or vacating of the Premises by Tenant, shall be deemed abandoned by
Tenant and may, at the option of Landlord, be immediately removed from the
Premises or such other space by Landlord and stored by Landlord at the full
risk, cost and expense of Tenant. Landlord shall in no event be responsible for
the value, preservation or safekeeping thereof. In the event Tenant does not
reclaim any such personal property and pay all costs for any storage and moving
thereof within thirty (30) days after the expiration or termination of this
Lease, the termination of Tenant's right to occupy the Premises or the
abandonment, desertion or vacating of the Premises by Tenant, Landlord may
dispose of such personal property in any way that it deems proper. If Landlord
shall sell any such personal property, it shall be entitled to retain from the
proceeds the amount of any Rent or other expenses due Landlord, together with
the cost of storage and moving and the expense of the sale. Notwithstanding
anything contained herein to the contrary, in addition to the rights provided
herein with respect to any such property, Landlord shall have the option of
exercising any of its other rights or remedies provided in the Lease or
exercising any rights or remedies available to Landlord at law or in equity.
ARTICLE VIII
Section 8.1 Transfers. Tenant shall not, by operation of law or otherwise,
(a) assign, transfer, mortgage, pledge, hypothecate or otherwise encumber this
Lease, the Premises or any part of or interest in this Lease Or the Premises,
(b) grant any concession or license within the Premises, (c) sublet all or any
part of the Premises or any right or privilege appurtenant to the Premises, or
(d) permit any other party to occupy or use all or any part of the Premises
(collectively, a "Transfer"), without the prior written consent of Landlord
which shall not be unreasonably withheld, conditioned or delayed. This
prohibition against a Transfer includes, without limitation, (i) any subletting
or assignment which, except as provided below, would otherwise occur by
operation of law, merger, consolidation, reorganization, transfer or other
change of Tenant's corporate or proprietary structure; (ii) an assignment or
subletting to or by a receiver or trustee in any Federal or State bankruptcy,
insolvency, or other proceedings; or (iii) the sale, assignment or transfer of
all or substantially all of the assets of Tenant, with or without specific
assignment of Lease. Any attempted Transfer by Tenant in violation of the terms
and covenants of this Article VIII shall be void and shall constitute a default
by Tenant under this Lease. Notwithstanding the foregoing, Tenant may assign
this Lease or sublet the Premises without Landlord's consent (a) to any
corporation or other entity that controls, is controlled by or is under common
control with Tenant; (b) to any corporation or other entity resulting from a
merger, acquisition, consolidation or reorganization of or with Tenant; (c) in
connection with the sale of all or substantially all of the assets of Tenant, so
long as Tenant provides evidence to Landlord in writing that such assignment or
sublease complies with the criteria set forth in (a), (b) or (c) above, and
provided such assignee, subtenant or successor-in-interest expressly assumes
Tenants' obligations and liabilities hereunder as of the date of such
assignment. No such assignment, sublease or transfer, however, shall release
Tenant from any covenant, liability or obligation under this Lease.
Section 8.2 Assignment by Landlord. Landlord shall have the right at any
time to sell, transfer or assign, in whole or in part, by operation of law or
otherwise, its rights, benefits, privileges, duties, obligations or interests in
this Lease or in the Premises, the Building, the Land and all other property
referred to herein, without the prior consent of Tenant, and such sale, transfer
or assignment shall be binding on Tenant. After such sale, transfer or
assignment, Tenant shall attorn to such purchaser, transferee or assignee, and
Landlord shall be released from all liability and obligations under this Lease
accruing after the effective date of such sale, transfer or assignment to the
extent assumed by grantee.
Section 8.3 Right of First Refusal to Purchase the Premises or Building.
In the event Landlord receives a bona fide offer from a third party who desires
to purchase the Premises or the Building, Landlord shall give notice thereof to
Tenant which notice shall contain the terms under which Landlord is willing to
sell the Premises or Building, as applicable. Within ten (10) business days of
such notice, time being of the essence, Tenant shall give Landlord notice that
it either does or does not wish to purchase the Premises or Building, as
applicable, on the terms and conditions contained in Landlord's notice. In the
event Tenant's notice provides that it does not wish to purchase the Building or
Premises, as applicable, or if Tenant fails to give Landlord notice of its
desires respecting same within the foregoing required ten (10) business day
period, then Landlord shall be entitled to proceed to market and/or sell the
Building or Premises, as applicable, to a third party free and clear of Tenant's
right of first offer and refusal and such right shall be deemed terminated in
all respects.
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In the event Tenant gives Landlord a notice as required in the preceding
paragraph that it wishes to purchase the Building or Premises, as applicable, on
the terms and conditions contained in Landlord's notice to it, then Landlord and
Tenant shall have thirty (30) days from the date of the notice within which to
execute a purchase agreement on the terms and conditions contained in Landlord's
notice. In the event Landlord and Tenant fail to sign such agreement using good
faith efforts within said thirty (30) day period, time being of the essence,
then Landlord shall be entitled to proceed to market and/or sell the Building or
Premises, as applicable, to a third party free and clear of such right and such
right shall be deemed terminated in all respects.
Section 8.4 Limitation of Landlord's Liability. Any provisions of this
Lease to the contrary notwithstanding, Tenant hereby agrees that no personal,
partnership or corporate liability of any kind or character (including, without
limitation, the payment of any judgment) whatsoever now attaches or at any time
hereafter under any condition shall attach to Landlord or any of Landlord's
Related Parties or any mortgagee for payment of any amounts payable under this
Lease or for the performance of any obligation under this Lease. The exclusive
remedies of Tenant for the failure of Landlord to perform any of its obligations
under this Lease shall be to proceed against the interest of Landlord in and to
the Premises. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in interest or any
suit or action in connection with enforcement or collection of amounts which may
become owing or payable under or on account of insurance maintained by Landlord.
In no event shall Landlord be liable to Tenant, or any interest of Landlord in
the Premises be subject to execution by Tenant, for any indirect, special,
consequential or punitive damages.
ARTICLE IX
Section 9.1 Subordination. This Lease shall be subject and subordinated at
all times to (a) all ground or underlying leases now existing or which may
hereinafter be executed affecting the Premises or the Land, and (b) the lien or
liens of all mortgages and deeds of trust in any amount or amounts whatsoever
now or hereafter placed on the Premises or the Land or Landlord's interest or
estate therein or on or against such ground or underlying leases and to all
renewals, modifications, consolidations, replacements and extensions thereof and
to each advance made or hereafter to be made thereunder. Tenant shall execute
and deliver upon demand any reasonable instruments, releases or other documents
requested by any lessor or mortgagee for the purpose of subjecting and
subordinating this Lease to such ground leases, mortgages or deeds of trust.
Tenant shall attorn to any party succeeding to Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power
of sale, termination of lease or otherwise, only upon such party's request and
at such party's sole discretion but not otherwise. Notwithstanding such
attornment, Tenant agrees that any such successor in interest shall not be (a)
liable for any act or omission of, or subject to any rights of setoff, claims or
defenses otherwise assertable by Tenant against, any prior owner of the Premises
or the Land (including without limitation, Landlord), (b) bound by any rents
paid more than one (1) month in advance to any prior owner, and (c) if such
successor is a mortgagee or a ground lessor whose address has been previously
given to Tenant, bound by any modification, amendment, extension or cancellation
of the Lease not consented to in writing by such mortgagee or ground lessor.
Tenant shall execute all such agreements confirming such attornment as such
party may reasonably request. Tenant shall not seek to enforce any remedy it may
have for any default on the part of Landlord without first giving written notice
by certified mail, return receipt requested, specifying the default in
reasonable detail, to any mortgagee or lessor under a lien instrument or lease
covering the Premises whose address has been given to Tenant, and affording such
mortgagee or lessor a reasonable opportunity to perform Landlord's obligations
hereunder. Notwithstanding the generality of the foregoing, any mortgagee or
ground lessor may at any time subordinate any such deeds of trust, mortgages,
other security instruments or ground leases to this Lease on such terms and
conditions as such mortgagee or ground lessor may deem appropriate.
Notwithstanding the foregoing, Tenant's obligation to subordinate this Lease to
any future mortgage or ground lease shall be expressly conditioned upon Tenant
receiving a nondisturbance agreement which shall provide that the holder of such
mortgage or such ground lessor shall not disturb this Lease or Tenant's rights
hereunder so long as Tenant is not in default hereunder past any applicable
notice and cure period. Landlord represents to Tenant that as of the date of
this Lease, there is no existing mortgage or debt encumbering the Land or
Building nor is the Land subject to a ground lease.
Section 9.2 Estoppel Certificate or Three-Party Agreement. Each party (the
"Requested Party") agrees within ten (10) business days following request by the
other (the "Requesting Party") (a) to execute, acknowledge and deliver to the
Requesting Party and any other persons specified by the Requesting Party, a
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certificate or three-party agreement among Landlord, Tenant and/or any third
party dealing with the Requesting Party, certifying (i) that this Lease is
unmodified and in full force and effect, or, if modified, stating the nature of
such modification (ii) the date to which the Rent and other charges are paid in
advance, if any, (iii) that there are not, to the Requested Party's knowledge,
any uncured defaults on the part of the Requesting Party hereunder, or so
specifying such defaults, if any, as are claimed and/or (iv) any other matters
as such third party may reasonably require in connection with the business
dealings of the Requesting Party and/or such third party and (b) if the
Requesting Party is Landlord, to deliver to Landlord the most current annual
report of Tenant.
Section 9.3 Notices. Any notice, request, approval, consent or other
communication required or contemplated by this Lease must be in writing, unless
otherwise in this Lease expressly provided, and may be given or be served by
depositing the same in the United States Postal Service, postpaid and certified
and addressed to the party to be notified, with return receipt requested, or by
delivering the same in person to such party (or, in case of a corporate party,
to an officer of such party), or express overnight mail service, when
appropriate, addressed to the party to be notified. Notice deposited in the mail
in the manner hereinabove described shall be effective upon either (i) the
actual receipt or refusal of receipt by such party at such address, or (ii) a
failure of delivery due to such receiving party not being open during normal
business hours, or closing, moving, or relocating its business and failing to
provide the other party with a change of address. Notice given in any other
manner shall be effective only if and when delivered to the party to be notified
or at such party's address for purposes of notice as set forth herein. For
purposes of notice the address of the Landlord shall, until changed as herein
provided, be c/o Xxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx
00000 and the address of the Tenant shall, until changed as herein provided, be
000 0xx Xxxxxx, Xxx Xxxx, XX 00000. The parties hereto shall have the right from
time to time to change their respective addresses by giving at least fifteen
(15) days' written notice to the other party in the manner set forth in this
Section 9.3.
ARTICLE X
Section 10.1 Rights and Remedies Cumulative. The rights and remedies of
Landlord under this Lease shall be nonexclusive and each right or remedy shall
be in addition to and cumulative of all other rights and remedies available to
Landlord under this Lease or at law or in equity. Pursuit of any right or remedy
shall not preclude pursuit of any other rights or remedies provided in this
Lease or at law or in equity, nor shall pursuit of any right or remedy
constitute a forfeiture or waiver of any Rent due to Landlord or of any damages
accruing to Landlord by reason of the violation of any of the terms of this
Lease.
Section 10.2 Legal Interpretation. This Lease and the rights and
obligations of the parties hereto shall be interpreted, construed and enforced
in accordance with the laws of the State of Georgia and the United States. The
determination that one or more provisions of this Lease is invalid, void,
illegal or unenforceable shall not affect or invalidate any other provision of
this Lease, and this Lease shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Lease, and, so far as
is reasonable and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative. All obligations of either party
hereunder not fully performed as of the expiration or termination of the Term of
this Lease shall survive the expiration or termination of the Term of this Lease
and shall be fully enforceable in accordance with those provisions pertaining
thereto. Article and section titles and captions appearing in this Lease are for
convenient reference only and shall not be used to interpret or limit the
meaning of any provision of this Lease. No custom or practice which may evolve
between the parties in the administration of the terms of this Lease shall waive
or diminish the right of Landlord to insist upon the performance by Tenant in
strict accordance with the terms of this Lease. This Lease is for the sole
benefit of Landlord and Tenant, and, without the express written consent
thereto, no third party shall be deemed a third party beneficiary hereof. Tenant
and Landlord agree that this Lease supersedes and cancels any and all previous
statements, negotiations, arrangements, brochures, agreements and
understandings, if any, between Landlord and Tenant with respect to the subject
matter of this Lease or the Premises and that this Lease, including written
extrinsic documents referred to herein, is the entire agreement of the parties,
and that there are no representations, understandings, stipulations, agreements,
warranties or promises (express or implied, oral or written) between Landlord
and Tenant with respect to the subject matter of this Lease or the Premises. It
is likewise agreed that this Lease may not be altered, amended, changed or
extended except by an instrument in writing signed by both Landlord and Tenant.
The terms and provisions of this Lease shall not be construed against or in
favor of a party hereto merely because such party is the "Landlord" or the
"Tenant" hereunder or because such party or its
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counsel is the draftsman of this Lease. All references to days in this Lease and
any Exhibits or Addendums hereto mean calendar days, not working or business
days, unless otherwise stated.
Section 10.3 No Brokers. Landlord and Tenant warrant and represent to the
other that it has not dealt with any real estate broker and/or salesman in
connection with the negotiation or execution of this Lease and no such broker or
salesman has been involved in connection with this Lease, and each party agrees
to defend, indemnify and hold harmless the other party from and against any and
all costs, expenses, attorneys' fees or liability for any compensation,
commission and charges claimed by any real estate broker and/or salesman due to
acts of such party or such party's representatives.
Section 10.4 Consents by Landlord. Except as otherwise provided herein, in
all circumstances under this Lease where the prior consent or permission of
Landlord is required before Tenant is authorized to take any particular type of
action, such consent must be in writing and the matter of whether to grant such
consent or permission shall be within the sole and exclusive judgment and
discretion of Landlord, and it shall not constitute any nature of breach by
Landlord under this Lease or any defense to the performance of any covenant,
duty or obligation of Tenant under this Lease that Landlord delayed or withheld
the granting of such consent or permission, whether or not the delay or
withholding of such consent or permission was prudent or reasonable or based on
good cause.
Section 10.5 Joint and Several Liability. If there is a guarantor of
Tenant's obligations hereunder, then the obligations hereunder imposed upon
Tenant shall be the joint and several obligations of Tenant and such guarantor,
and Landlord need not first proceed against Tenant before proceeding against
such guarantor nor shall any such guarantor be released from its guaranty for
any reason whatsoever.
Section 10.6 Independent Covenants. The obligation of Tenant to pay Rent
and other monetary obligations provided to be paid by Tenant under this Lease
and the obligation of Tenant to perform Tenant's other covenants and duties
under this Lease constitute independent, unconditional obligations of Tenant to
be performed at all times provided for under this Lease, save and except only
when an abatement thereof or reduction therein is expressly provided for in this
Lease and not otherwise, and Tenant acknowledges and agrees that in no event
shall such obligations, covenants and duties of Tenant under this Lease be
dependent upon the condition of the Premises, or the performance by Landlord of
its obligations hereunder.
Section 10.7 Tenant's Interest in Premises. This lease agreement shall not
convey any leasehold estate from Landlord to Tenant. Landlord and Tenant hereby
agree that this lease creates only the interest of a usufruct in Tenant which
may not be levied upon or assigned without Landlord's permission.
Section 10.8 Recording. Neither Landlord nor Tenant shall record this
Lease, but a short-form memorandum hereof may be recorded at the request of
Landlord at Landlord's expense.
Section 10.9 Disclaimer; Waiver of Jury, Trial. LANDLORD AND TENANT
EXPRESSLY ACKNOWLEDGE AND AGREE, AS A MATERIAL PART OF THE CONSIDERATION FOR
LANDLORD'S ENTERING INTO THIS LEASE WITH TENANT, THAT, EXCEPT AS OTHERWISE SET
FORTH IN THIS LEASE, LANDLORD HAS MADE NO WARRANTIES TO TENANT AS TO THE USE OR
CONDITION OF THE PREMISES, EITHER EXPRESS OR IMPLIED, AND LANDLORD AND TENANT
EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR
TENANT'S INTENDED COMMERCIAL PURPOSE OR ANY OTHER WARRANTY (EXPRESS OR IMPLIED)
INTENDED COMMERCIAL PURPOSE OR ANY OTHER WARRANTY (EXPRESS OR IMPLIED) REGARDING
THE PREMISES. EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD AND TENANT
EXPRESSLY AGREE THAT THERE ARE NO, AND SHALL NOT BE ANY, IMPLIED WARRANTIES OF
MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER
KIND ARISING OUT OF THIS LEASE, ALL SUCH OTHER EXPRESS OR IMPLIED WARRANTIES IN
CONNECTION HEREWITH BEING EXPRESSLY DISCLAIMED AND WAIVED.
LANDLORD AND TENANT WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY TENANT AND TENANT
ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING ON XXXXXX XX
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XXXXXXXX XXX MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY
JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES
THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN
THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL. TENANT FURTHER ACKNOWLEDGES THAT IT HAS READ
AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION AND AS
EVIDENCE OF SAME HAS EXECUTED THIS LEASE.
Section 10.10 Time Is of the Essence. Time is of the essence of this
Lease. Unless specifically provided otherwise, all references to terms of days
or months shall be construed as references to calendar days or calendar months,
respectively.
Section 10.11 Counterparts. This Lease may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as
of the day and year first above written.
LANDLORD: TENANT:
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IDC REALTY LLC, INTERNET COMMERCE CORPORATION,
a Georgia limited liability company a Delaware corporation
By: /s/: Xxxxxx X. Xxxxxx By: /s/: Xxxxxxx Xxxxxx
------------------------------ --------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Manager Title:
-------------------------
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EXHIBIT A
DRAWING OF THE LAND AND IMPROVEMENTS
