EXHIBIT 10.1
INDUSTRIAL
LEASE AGREEMENT
THIS INDUSTRIAL LEASE AGREEMENT (this "Lease") is executed as of this 26 day of
November, 2002, by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership ("Landlord"), and INTELLIGENT SYSTEMS CORPORATION, a Georgia
corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Leased Premises:
(1) The portion of that certain building (the "Building") located
at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, within Gwinnett Park
(the "Park"), as shown on Exhibit A attached hereto and made a part
hereof ("Premises A");
(2) The portion of that certain building (the "Building") located
at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000, within the Park, as
shown on Exhibit A attached hereto and made a part hereof ("Premises
B"; Premises A and Premises B being referred to hereinafter,
collectively, as the "Leased Premises");
B. Rentable Area:
(1) Premises A: approximately 61,000 rentable square feet;
(2) Premises B: approximately 76,100 rentable square feet;
Landlord shall use commercially reasonable standards, consistently
applied, in determining the Rentable Area and the rentable area of the
Building. Landlord's determination of Rentable Area shall conclusively
be deemed correct for all purposes hereunder.
C. Tenant's Proportionate Share:
(1) Premises A: 100%;
(2) Premises B: 0%;
D. Minimum Annual Rent for Premises A:
Year l $203,000.00
Year 2 $101,500.00
E. Monthly Rental Installments:
Months 1-12 $16,916.67 per month
Months 13-18 $16,916.67 per month
F. Base Year 2003;
G. Lease Term: One (1) year and six (6) months;
H. Commencement Date: December 1, 2002;
I. Security Deposit: None;
J. Guarantor(s): None;
K. Broker(s): None;
L. Permitted Use: Incubator for start-up companies, and office and
administrative uses reasonably ancillary thereto;
M. Address for notices:
Landlord: Duke Realty Limited Partnership
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Legal Department - Atlanta Market
Tenant: Intelligent Systems Corporation
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Address for rental and other payments:
Duke Realty Limited Partnership
00 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Exhibits attached hereto:
Exhibit A: Site Plan of Leased Premises
Exhibit B: Reserved
Exhibit C: Letter of Understanding
Exhibit D: Special Stipulations
Exhibit E: Form of Income Rent Statement
SECTION 1.02. Leased Premises. Landlord hereby leases to Tenant and
Tenant leases from Landlord, under the terms and conditions herein, the Leased
Premises.
ARTICLE 2 - TERM AND POSSESSION
SECTION 2.01. Term. The term of this Lease ("Lease Term") shall be for
the period of time as set forth in Section 1.01(G) hereof, and shall commence on
the Commencement Date set forth in Section 1.01(H) hereof,
Section 2.02. Construction of Tenant Improvements.
(a) Tenant has personally inspected the Leased Premises and
accepts the same "AS IS" without representation or warranty by Landlord of any
kind.
(b) Promptly following the Commencement Date, Tenant shall execute
Landlord's Letter of Understanding in substantially the form attached hereto as
Exhibit C and made a part hereof, acknowledging, among other things, that
Tenant has accepted the Leased Premises. If Tenant takes possession of and
occupies the Leased Premises, Tenant shall be deemed to have accepted the
Leased Premises and that the condition of the Leased Premises and the Building
was at the time satisfactory and in conformity with the provisions of this
Lease in all respects.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair,
reasonable wear and tear excepted. Tenant shall also remove its personal
property and trade fixtures, and any of Tenant's alterations designated by
Landlord, promptly repair any damage caused by such removal, and restore the
Leased Premises to the condition existing prior to the installation of such
items as of the Commencement Date. If Tenant fails to do so, Landlord may
restore the Leased Premises to such condition at Tenant's expense, Landlord may
cause all of said property to be removed at Tenant's expense, and Tenant hereby
agrees to pay all the costs and expenses thereby reasonably incurred. All
Tenant property which is not removed within ten (10) days following Landlord's
written demand therefor shall be conclusively deemed to have been abandoned by
Tenant, and Landlord shall be entitled to dispose of such property at Tenant's
cost without thereby incurring any liability to Tenant. The provisions of this
section shall survive the expiration or other termination of this Lease.
Section 2.04. Holding Over If. Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant
shall be a tenant at sufferance at Two Hundred Percent (200%) of the Minimum
Annual Rent and Annual Rental Adjustment for the Leased Premises in effect upon
the date of such expiration or earlier termination, and otherwise upon the
terms, covenants
-2-
and conditions herein specified, so far as applicable. Acceptance by Landlord of
rent after such expiration or earlier termination shall not result in a renewal
of this Lease, nor shall such acceptance create a month to month tenancy. This
Section 2.04 shall in no way constitute a consent by Landlord to any holding
over by Tenant upon the expiration or earlier termination of this Lease, nor
limit Landlord's remedies in such event.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum
Annual Rent in the Monthly Rental Installments, in advance, without demand and
without abatement, deduction or offset, beginning on the Commencement Date and
on or before the first day of each and every calendar month thereafter during
the Lease Term. The Monthly Rental Installments for partial calendar months
shall be prorated.
Section 3.02. Income Rent.
(a) In addition to the Base Rent specified in Section 3.01 above,
and as part of the total rent to be paid by Tenant to Landlord, Tenant covenants
and agrees to pay to Landlord, as "Income Rent" for each calendar month during
the Lease Term, a sum equal to Tenant's Net Income (as hereinafter defined)
during such calendar month. Said Income Rent shall be payable by Tenant without
notice or demand from Landlord, at the same place and in the same manner as Base
Rent hereunder, within fifteen (15) days of the end of each calendar month. Each
payment shall be accompanied by a complete statement in form similar to the
statement attached hereto as Exhibit E and made a part hereof, signed by an
authorized representative of Tenant showing the amount of Net Income for such
immediately preceding month.
(b) The term "Net Income" as used in this Lease is hereby defined
to mean the remainder of (i) moneys or other things of value received by Tenant
at, in, on or from sublessees of Premises B in connection with charging for the
lease of industrial/office space to start-up companies and related support
services ("Gross Income"); less (ii) the sum of (A) all moneys or other things
of value received by Tenant from its operations at, in, on or from sublessee of
Premises B which are note expressly excluded from Gross Income by the other
provisions of this definition, including but not limited to charges for
installing and providing to sublessee optional telephone and network services,
furniture & workstations, per copy fees and shipping costs, and (B) Tenant's
actual and reasonable out of pocket expenses incurred in connection with
providing industrial/office space to startup companies and related support
services, including Tenant's management fee.
(c) Tenant agrees to maintain accounting controls and books of
account, in form adequate for auditing purposes in accordance with generally
accepted accounting principles to assure the proper recording of all Net
Income. Landlord shall have the right, at any time within twelve (12) months
after receipt of Tenant's monthly statement of Net Income, to audit all of the
books of account, documents, records, returns, papers, original sales records
(including, without limitation, invoices, bank statements and deposit slips,
computer records and such other sales records, if any, which would normally be
examined by an independent accountant pursuant to generally accepted auditing
standards in performing an audit of the Tenant's Net Income) and files of the
Tenant relating to Net Income for any calendar month(s), and the Tenant, at the
request of Landlord, shall make all such matters available for such examination
at the Building. If Landlord shall have such an audit made for any calendar
month(s) and the Net Income shown by Tenant's statement for such calendar
months(s) shall be found to be understated by more than five percent (5%), then
Tenant shall pay to Landlord the cost of such audit, not to exceed $2,500.00. In
any event, Tenant shall pay promptly to Landlord any deficiency in income rent,
plus interest at the rate of twelve percent (12%) from the date such payment
should have been made to the date of payment. Such examination and audit may be
made by any accountant designated in writing by Landlord from time to time.
Section 3.03. Additional Rent.
(a) Any amount required to be paid by Tenant hereunder (in
addition to Minimum Annual Rent and Income Rent) and any charges or expenses
incurred by Landlord on behalf of Tenant under the terms of this Lease shall be
considered "Additional Rent" payable in the same manner and upon the same terms
and conditions as the Minimum Annual Rent reserved hereunder except as set forth
herein to the contrary. Any failure on the part of Tenant to pay such Additional
Rent when and as the same shall become due shall entitle Landlord to the
remedies available to it for non-payment of Minimum Annual Rent.
-3-
(b) In addition to the Minimum Annual Rent and Income Rent, Tenant
shall pay to Landlord for each calendar year during the Lease Term, as
Additional Rent, Tenant's Proportionate Share of all costs and expenses incurred
by Landlord during the Lease Term for Operating Expenses (as hereinafter
defined) for the Building and the common areas associated therewith.
(c) In addition to the Minimum Annual Rent, Income Rent and
Tenant's Proportionate Share of Operating Expenses, Tenant shall pay to Landlord
for each calendar year during the Lease Term, as Additional Rent Tenant's
Proportionate Share of any increase in insurance premiums and deductibles
(payable by Landlord) over the base amount paid in the Base Year.
(d) For purposes of this Lease, "Operating Expenses" shall mean
all of Landlord's expenses for operation, repair, replacement and maintenance to
keep the Building and the common areas associated therewith in good order,
condition and repair (including all additional direct costs and expenses of
operation and maintenance of the Building which Landlord reasonably determines
it would have paid or incurred during such year if the Building had been fully
occupied), including, but not limited to, utilities; insurance deductibles;
stormwater discharge fees; license, permit, inspection and other fees; fees and
assessments imposed by any covenants or owners' association; security services;
and maintenance, repair and replacement parking areas (including snow removal),
exterior lighting, landscaped areas, walkways, curbs, and drainage strips.
Tenant shall not be responsible for the cost of any Operating Expenses that are
capital in nature.
(e) For purposes of this Lease, "Real Estate Taxes" shall include
any form of real estate tax or assessment or service payments in lieu thereof,
and any license fee, commercial rental tax, improvement bond or other similar
charge or tax (other than inheritance, personal income or estate taxes) imposed
upon the Building or the common areas associated therewith (or against
Landlord's business of leasing the Building) by any authority having the power
to so charge or tax, together with costs and expenses of contesting the validity
or amount of Real Estate Taxes which at Landlord's option may be calculated as
if such contesting work had been performed on a contingent fee basis (whether
charged by Landlord's counsel or representative; provided, however, that said
fees are reasonably comparable to the fees charged for similar services by
others not affiliated with Landlord, but in no event shall fees exceed
thirty-three percent (33%) of the good faith estimated tax savings).
Additionally, Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all personal property
of Tenant contained in the Leased Premises.
Section 3.04. Payment of Additional Rent. Landlord shall estimate the
total amount of Additional Rent to be paid by Tenant during each calendar year
of the Lease Term, pro-rated for any partial years. Commencing on the
Commencement Date, Tenant shall pay to Landlord each month, at the same time the
Monthly Rental Installments are due, an amount equal to one-twelfth (1/12th) of
the estimated Additional Rent for such year. Within a reasonable time after the
end of each calendar year, Landlord shall submit to Tenant a statement of the
actual amount of such Additional Rent and within thirty (30) days after receipt
of such statement, Tenant shall pay any deficiency between the actual amount
owed and the estimates paid during such calendar year. In the event of
overpayment, Landlord shall credit the amount of such overpayment toward the
next installments of Minimum Annual Rent.
Section 3.05. Late Charges. Tenant acknowledges that Landlord shall
incur certain additional unanticipated administrative and legal costs and
expenses if Tenant fails to pay timely any payment required hereunder.
Therefore, in addition to the other remedies available to Landlord hereunder, if
any payment required to be paid by Tenant to Landlord hereunder is not paid (a)
within ten (10) days following written notice from Landlord on the first
occasion in any twelve (12) month period, or (b) as and when due on any
subsequent occasion in any twelve (12) month period, Tenant shall pay an
administrative fee equal to five percent (5%) of such past due amount.
ARTICLE 4 - SECURITY DEPOSIT
INTENTIONALLY OMITTED
ARTICLE 5-USE
SECTION 5.91 . Use of Premises. The Leased Premises are to be used by
Tenant solely for the Permitted Use and for no other purposes without the prior
written consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use. Tenant shall (i) use
and maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including
without limitation those
-4-
which shall impose upon Landlord or Tenant any duty with respect to or triggered
by a change in the use or occupation of, or any improvement or alteration to,
the Leased Premises, (iii) comply with any protective covenants applicable to
the Park which are in effect and as may hereafter be adopted and promulgated and
(iv) comply with and obey all reasonable directions of the Landlord, including
any rules and regulations that may be adopted by Landlord from time to time.
Tenant shall not do or permit anything to be done in or about the Leased
Premises or common areas which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or injure or annoy them.
Landlord shall not be responsible to Tenant for the nonperformance by any other
tenant or occupant of the Building of its lease or of any rules and regulations.
Tenant shall not use the Leased Premises, or allow the Leased Premises to be
used, for any purpose or in any manner which would invalidate any policy of
insurance now or hereafter carried on the Building or increase the rate of
premiums payable on any such insurance policy unless Tenant reimburses Landlord
as Additional Rent for any increase in premiums charged. On or before the
Commencement Date, Tenant shall take possession of, and, thereafter,
continuously occupy the Leased Premises during the Lease Term, and operate
thereon the normal business operations of Tenant.
Section 5.03. Landlord's Rights Regarding Use. In addition to the
rights specified elsewhere in this Lease, Landlord shall have the following
rights regarding the use of the Leased Premises or the common areas, each of
which may be exercised without notice or liability to Tenant, (a) Landlord may
install such signs, advertisements, notices or tenant identification information
as it shall deem necessary or proper; (b) Landlord shall have the right at any
time to control, change or otherwise alter the common areas as it shall deem
necessary or proper; and (c) Landlord or Landlord's agent shall be permitted to
inspect or examine the Leased Premises at any reasonable time upon reasonable
notice (except in an emergency when no notice shall be required), and Landlord
shall have the right to make any repairs to the Leased Premises which are
necessary for its preservation; provided, however, that any repairs made by
Landlord shall be at Tenant's expense, except as provided in Section 7.02
hereof. Landlord shall incur no liability to Tenant for such entry, nor shall
such entry constitute an eviction of Tenant or a termination of this Lease, or
entitle Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Section 6.01. Premises A Utilities and Services. Tenant shall obtain in
its own name and pay directly to the appropriate supplier the cost of all
utilities and services serving the Premises A. However, if any services or
utilities are jointly metered with other property, Landlord shall make a
reasonable determination of Tenant's proportionate share of the cost of such
utilities and services (at rates that would have been payable if such utilities
and services had been directly billed by the utilities or services providers)
and Tenant shall pay such share to Landlord within fifteen (15) days after
receipt of Landlord's written statement. Landlord shall not be liable in damages
or otherwise for any failure or interruption of any utility or other Building
service and no such failure or interruption shall entitle Tenant to terminate
this Lease or withhold sums due hereunder. In the event of utility
"deregulation", Landlord shall choose the service provider.
Section 6.02. Premises B Utilities and Services. Provided Tenant is not
in default, landlord shall furnish to Tenant, except as noted below, the
following utilities and other building services to the extent reasonably
necessary for Tenant's comfortable use and occupancy of Premises B for the
Permitted Use or as may be required by law or directed by governmental
authority:
(a) Heating, ventilation and air-conditioning ("HVAC");
(b) Electrical current for lighting and office equipment usage not
to exceed four (4) xxxxx per square foot;
(c) Water in the Common Areas for lavatory and drinking purposes;
(d) Repair and maintenance to the extent expressly the obligation
of Landlord under this Lease.
Charges for utilities and services provided by Landlord, if any, shall not
exceed the charges that would have been payable if such utilities and services
had been directly billed by the utilities or service providers to Tenant.
Section 6.03. Additional Services. If Tenant requests utilities or
building services in addition to those identified above or any of the above
utilities or building services in frequency, scope, quality or quantity
substantially greater than those which Landlord determines are normally required
by other tenants in the Building for tile Permitted Use, then Landlord shall use
reasonable efforts to attempt to
-5-
furnish Tenant with such additional utilities or building services. In the event
Landlord is able to and does furnish such additional utilities or building
services, the costs thereof shall be borne by, Tenant, who shall reimburse
Landlord monthly for the same as Additional Rent at the same time Monthly Rental
Installments and other Additional Rent is due.
Section 6.04. Interruption of Services. Tenant understands,
acknowledges and agrees that any one or more of the utilities or other Building
services identified in Sections 6.02, 6.03 or otherwise hereunder may be
interrupted by reason of accident, emergency or other causes beyond Landlord's
control, or may be discontinued or diminished temporarily by landlord or other
persons until certain repairs, alterations or improvements can be made. Landlord
shall not be liable in damages or otherwise for any failure or interruption of
any utility service and no such failure or interruption shall entitle Tenant to
terminate this Lease or withhold sums due hereunder.
ARTICLE 7 - MAINTENANCE AND REPAIRS
Section 7.01 . Repair and Maintenance of Building. Subject to Section
7.02 and except for any repairs made necessary by the negligence, misuse, or
default of Tenant, its employees, agents, customers and invitees, Landlord shall
make all necessary repairs to the roofs, exterior walls, exterior doors,
windows, corridors and other Common Areas, and Landlord shall keep the Building
in a safe, clean and neat condition and use reasonable efforts to keep all
equipment used in common with other tenants in good condition and repair.
Section 7.02. Repair and Maintenance of Leased Premises. Tenant shall
keep and maintain, in good order, condition and repair, and replace as
necessary, Premises A. Except for ordinary wear and tear and damage which Tenant
is not obligated to repair as provided elsewhere in this Lease (including but
not limited to maintenance and repairs to HVAC systems in the Leased Premises
which are Landlord's responsibility under Special Stipulation 2 attached as
Exhibit D to the Lease), the cost of all repairs and maintenance to Premises A
shall be borne by Tenant, who shall be separately billed and shall reimburse
Landlord for the same as Additional Rent, or as a part of Operating Expenses. In
the event Tenant fails to maintain Premises A as required herein or fails to
commence repairs (requested by landlord in writing) within thirty (30) days
after such request, or fails diligently to proceed thereafter to complete such
repairs, Landlord shall have the right in order to preserve Premises A or
portion thereof, and/or the appearance thereof, to make such repairs or have a
contractor make such repairs and charge Tenant for the cost thereof as
additional rent, together with interest at the rate of twelve percent (12%) per
annum from the date of making such payments. Tenant's obligation to repair and
maintain Premises B is limited to routine repairs and maintenance performed by
its staff, which expressly excludes any infrastructure or capital items.
Section 7.03. Alterations. Tenant shall not permit alterations in or to
the Leased Premises unless and until the plans and the contractor have been
approved by Landlord in writing. As a condition of Landlord's approval, Landlord
may require Tenant to remove the alterations and restore the Leased Premises
upon termination of this Lease; otherwise, all such alterations shall at
Landlord's option become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. Tenant shall ensure that all alterations shall
be made in accordance with all applicable laws, regulations and building codes,
in a good and workmanlike manner and of quality equal to or better than the
original construction of the Building, and that its contractors comply with the
terms and conditions of Landlord's Building Contractor Guidelines (which
Landlord agrees to furnish to Tenant upon request). Upon completion of the work,
Tenant shall provide lien waivers from the subcontractors or a final affidavit
of lien waiver from the general contractor, and such lien waiver shall be in a
form acceptable to Landlord. No person shall be entitled to any lien derived
through or under Tenant for any labor or material furnished to the Leased
Premises, and nothing in this Lease shall be construed to constitute a consent
by Landlord to the creation of any lien. If any lien is filed against the Leased
Premises for work claimed to have been done for or material claimed to have been
furnished to Tenant, Tenant shall cause such lien to be discharged of record
within thirty (30) days after filing. Tenant shall indemnify Landlord from all
costs, losses, expenses and attorneys' fees in connection with any construction
or alteration and any related lien.
ARTICLE 8 - INSURANCE
Section 8.01. Landlord's Insurance. During the Lease Term, Landlord
shall maintain all risk coverage insurance on the Building (excluding all trade
fixtures and property required to be insured by Tenant under this Lease).
Section 8.02. Tenant's Insurance. During the Lease Term, Tenant shall
maintain the following types of insurance, in the amounts specified and in the
form hereinafter provided for:
-6-
(a) Liability insurance in the Commercial General Liability form
(including Broad Form Property Damage and Contractual Liabilities or reasonable
equivalent thereto) covering the Leased Premises and Tenant's use thereof
against claims for bodily injury or death, property damage and product liability
occurring upon, in or about the Leased Premises, such insurance to be written on
an occurrence basis (not a claims made basis), to be in combined single limits
amounts not less than $1,000,000 and to have general aggregate limits of not
less than $3,000,000 for each policy year.
(b) All Risk Coverage Vandalism and Malicious Mischief, and
Sprinkler Leakage insurance, if applicable, for the full cost of replacement of
Tenant's trade fixtures, merchandise and personal property.
(c) Worker's Compensation: minimum statutory amount.
(d) Business interruption insurance.
All policies of insurance provided for in this Section 8.02 (i) shall be issued
in form reasonably acceptable to Landlord, (ii) shall name Landlord, Landlord's
managing agent, any mortgagee and any other party reasonably designated by
Landlord as additional insureds, and (iii) shall provide that they may not be
materially changed or canceled on less than thirty (30) days' prior written
notice to Landlord. Tenant shall furnish Landlord With Certificates of Insurance
evidencing all required coverages on or before the Commencement Date, and
thereafter within thirty (30) days prior to the expiration of each such policy.
If Tenant fails to carry such insurance, Landlord may obtain such insurance and
Tenant shall promptly reimburse Landlord therefor.
Section 8.03. Waiver of Subrogation. Landlord and Tenant hereby waive
any rights each may have against the other on account of any loss or damage
occasioned to Landlord or Tenant, as the case may be, or their respective
property, the Leased Premises, its contents, or other portions of the Building
arising from any risk which is insured against under any all risk coverage
insurance carried (or required to be carried) by either Landlord or Tenant. All
insurance policies maintained by Landlord or Tenant as provided in this Lease
shall contain an agreement by the insurer waiving the insurer's right of
subrogation against the other party to this Lease.
Section 8.04. Tenant's Responsibility. All of Tenant's trade fixtures,
merchandise and personal property in the Leased Premises shall be and remain at
Tenant's sole risk. Landlord shall not be liable to Tenant or to any other
person, and Tenant hereby releases Landlord from (i) any and all liability for
theft thereof or any damage thereto occasioned by any act of God or by any acts,
omissions or negligence of any persons, and (ii) any and all liability for any
injury to the person or property of Tenant or other persons in or about the
Leased Premises, the Building or the common areas associated therewith, except
to the extent caused by the negligence or willful misconduct of Landlord.
Notwithstanding the foregoing, nothing contained in this Section 8.04 shall
override (or be deemed to override) the waivers contained in Section 8.03 above.
This provision shall survive the expiration or earlier termination of this
Lease.
Section 8.05. Tenant's Indemnity Tenant shall indemnify, defend and
hold harmless Landlord, its agents, employees and contractors from and against
any and all claims, demands, penalties, costs, liabilities, losses and expenses
(including reasonable attorneys' fees actually incurred) to the extent arising
from or based upon any alleged act, omission or negligence of Tenant or Tenant's
agents, employees contractors or invitees or otherwise arising in connection
with the Leased Premises or Tenant's use of the common areas associated
therewith, except to the extent caused by the negligence or willful misconduct
of Landlord. Notwithstanding the foregoing, nothing contained in this Section
8.05 shall override (or be deemed to override) the waivers contained in Section
8.03 above. This provision shall survive the expiration or earlier termination
of this Lease.
ARTICLE 9 - CASUALTY
In the event of total or partial destruction of the Building or the
Leased Premises by fire or other casualty, Landlord agrees to promptly restore
and repair the Leased Premises; provided, however, Landlord's obligation
hereunder shall be limited to the reconstruction of such of the tenant finish
improvements as were originally required to be made by Landlord, if any. Rent
shall proportionately xxxxx during the time that the Leased Premises or part
thereof are unusable because of any such damage. Notwithstanding the foregoing,
if the Leased Premises are (i) so destroyed that they cannot be repaired or
rebuilt within one hundred eighty (180) days from the casualty date; or (ii)
destroyed by a casualty which is not covered by the insurance required hereunder
or, if covered, such insurance proceeds are not released by any mortgagee
entitled thereto or are insufficient to rebuild the Building and the Leased
Premises; then, in case of a clause (i) casualty, either Landlord or Tenant may,
or, in the case of a clause
-7-
(ii) casualty, then Landlord may, upon thirty (30) days' written notice to the
other party, terminate this Lease with respect to matters thereafter accruing.
Tenant waives any right under applicable laws inconsistent with the terms of
this paragraph and in the event of a destruction agrees to accept any offer by
Landlord to provide Tenant with comparable space within the project in which the
Leased Premises are located on the same terms as this Lease. Notwithstanding the
provisions of this paragraph, if any such damage or destruction occurs within
the final two (2) years of the term hereof, then Landlord, in its sole
discretion, may, without regard to the aforesaid one hundred eighty (180) day
period, terminate this Lease by written notice to Tenant.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or common areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date that actual possession
thereof is so taken. If all or any pad of the Leased Premises shall be acquired
by the exercise of eminent domain so that the Leased Premises shall become
impractical for Tenant to use for the Permitted Use, Tenant may terminate this
Lease as of the date that actual possession thereof is so taken by giving
written notice to Landlord. All damages awarded shall belong to Landlord;
provided, however, that Tenant may claim dislocation damages if such amount is
not subtracted from Landlord's award.
ARTICLE 11- ASSIGNMENT AND SUBLEASE
Section 11.01. Assignment and Sublease. Tenant shall not assign this
Lease in whole or in part or sublet the entire Leased Premises without
Landlord's prior written consent, which consent shall not be unreasonably
withheld, delayed or denied. Subject to Section 11.02 below, any change in
control of Tenant resulting from a merger, consolidation, stock transfer or
asset sale shall be considered an assignment or transfer that requires
Landlord's prior written consent. In the event of any permitted assignment or
subletting, Tenant shall remain primarily liable hereunder, and any extension,
expansion, rights of first offer, rights of first refusal or other options
granted to Tenant under this Lease shall be rendered void and of no further
force or effect. The acceptance of rent from any other person shall not be
deemed to be a waiver of any of the provisions of this Lease or to be a consent
to the assignment of this Lease or the subletting of the Leased Premises. Any
assignment or sublease consented to by Landlord shall not relieve Tenant (or its
assignee) from obtaining Landlord's consent to any subsequent assignment or
sublease. By way of example and not limitation, Landlord shall be deemed to have
reasonably withheld consent to a proposed assignment or sublease if in
Landlord's opinion (i) the Leased Premises are or may be in any way adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; (iii) the financial worth of the proposed assignee or subtenant is
insufficient to meet the obligations hereunder, (iv) the prospective assignee or
subtenant is a current tenant at the Park or is a bona-fide third-party
prospective tenant, or (v) the proposed rent is to be less than the then current
rent for similar premises in the Building. If Landlord refuses to give its
consent to any proposed assignment or subletting, Landlord may, at its option,
within thirty (30) days after receiving a request to consent, terminate this
Lease by giving Tenant thirty (30) days prior written notice of such
termination, whereupon each party shall be released from all further obligations
and liability hereunder, except those which expressly survive the termination of
this Lease. In the event that Tenant assigns or sublets the Leased Premises or
any part thereof, and at any time receives rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to Landlord,
Tenant shall pay to Landlord, as Additional Rent, 75% of such excess rent and/or
other consideration. Tenant agrees to pay Landlord $500.00 upon demand by
Landlord to reimburse Landlord for reasonable accounting and attorneys' fees
incurred in conjunction with the processing and documentation of any requested
assignment, subletting or any other hypothecation of this Lease or Tenant's
interest in and to the Leased Premises.
Section 11.02. Permitted Transfer. Notwithstanding anything to the
contrary contained in Section 11.01 above, Tenant shall have the right, without
Landlord's consent, but upon ten (10) days prior notice to Landlord, to sublet
part of the Leased Premises to incubator and start-up companies. Landlord
acknowledges that Tenant currently subleases space to the following entities:
Resultant Systems 450 sq. ft.
Chemfree Corp. 1,500 sq. ft.
Corecard Software 5,875 sq. ft.
Corexpand 1,770 sq. ft.
Engineered Multimedia 800 sq. ft.
Archerpoint 750 sq. ft.
Iota solutions 275 sq. ft.
Xxxxxx Associates 1,550 sq. ft.
-8-
M/R Systems, Inc. 5,920 sq. ft.
Xxxxxxx Associates 275 sq. ft.
Trueshopping 1,160 sq. ft.
ARTICLE 12 - TRANSFERS BY LANDLORD
This Lease and all rights of Tenant hereunder are and shall be subject
and subordinate to the lien and security title of any Mortgage (as hereinafter
defined) presently existing or hereafter encumbering the Building. For purposes
of this Lease, "Mortgage" shall mean any or all mortgages, deeds to secure debt,
deeds of trust or other instruments in the nature thereof, and any amendments,
modifications, extensions or renewals thereof. Within ten (10) days following
receipt of a written request from Landlord, Tenant shall execute and deliver to
Landlord (a) any and all instruments reasonably requested by Landlord to confirm
the subordination of this Lease (notwithstanding the fact that such
subordination shall be self-operative), and (b) an estoppel certificate in such
form as Landlord may reasonably request certifying (i) that this Lease is in
full force and effect and unmodified or stating the nature of any modification,
(ii) the date to which rent has been paid, (iii) that there are not, to Tenant's
knowledge, any uncured defaults or specifying such defaults if any are claimed,
and (iv) any other matters or state of facts reasonably required respecting the
Lease, it being intended that any such statement delivered pursuant hereto may
be relied upon by Landlord and by any purchaser or mortgagee of the Building. No
owner of the Leased Premises, whether or not named herein, shall have liability
hereunder after it ceases to hold title to the Leased Premises.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be
a "Default":
(a) Tenant fails to pay any Monthly Rental Installment or
Additional Rent within ten (10) days after the same is due.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of fifteen (15)
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than fifteen days are reasonably required
to cure, then such default shall be deemed to have been cured if Tenant
commences such performance within said fifteen-day period and thereafter
diligently completes the required action within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased
Premises in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased
Premises or Tenant's interest in this Lease are attached or levied under
execution (and Tenant does not discharge the same within sixty (60) days
thereafter); a petition in bankruptcy, insolvency or for reorganization or
arrangement is filed by or against Tenant (and Tenant fails to secure a stay or
discharge thereof within sixty (60) days thereafter); Tenant is insolvent and
unable to pay its debts as they become due; Tenant makes a general assignment
for the benefit of creditors; Tenant takes the benefit of any insolvency action
or law; the appointment of a receiver or trustee in bankruptcy for Tenant or its
assets if such receivership has not been vacated or set aside within thirty (30)
days thereafter; or dissolution or other termination of Tenant's corporate
charter if Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Terminate this Lease by giving Tenant notice of termination,
in which event this Lease shall expire and terminate on the date specified in
such notice of termination and all rights of Tenant under this Lease and in and
to the Leased Premises shall terminate. Tenant shall remain liable for all
obligations under this Lease arising up to the date of such termination, and
Tenant shall surrender the Leased Premises to Landlord on the date specified in
such notice. Furthermore, Tenant shall be liable to Landlord for the unamortized
balance of any Tenant improvement allowance and brokerage fees paid in
connection with the Lease.
(b) Without terminating this Lease, and with or without notice to
Tenant, re-enter the Leased Premises and cure any default of Tenant, and Tenant
shall reimburse Landlord as Additional Rent for any costs and expenses which
Landlord thereby incurs; and Landlord shall not be liable to Tenant for any loss
or damage which Tenant may sustain by reason of Landlord's action.
-9-
(c) Terminate this Lease as provided in subparagraph (a) above and
recover from Tenant all damages Landlord may incur by reason of Tenant's
default, including, without limitation, an amount which, at the date of such
termination is equal to the sum of the following: (i) the value of the excess,
if any, discounted at the prime rate of interest (as reported in the Wall Street
Journal of (A) the Minimum Annual Rent, Income Rent, Additional Rent and all
other sums that would have been payable hereunder by Tenant for the period for
the remainder of the Lease Term had this Lease not been terminated (said period
being referred to herein as the "Remaining Term"), Less (B) the aggregate
reasonable rental value of the Leased Premises for the Remaining Term, as
determined by a real estate broker licensed in the State of Georgia who has at
least ten (10) years of experience; (ii) the costs of recovering possession of
the Leased Premises and all other expenses incurred by Landlord due to Tenant's
Default, including, without limitation, reasonable attorney's fees and the cost
to prepare the Leased Premises for re-letting (all costs and expenses set forth
in this clause (ii) being referred to herein, collectively, as the "Default
Damages"); and (iii) the unpaid Minimum Annual Rent, Income Rent and Additional
Rent that accrued prior to the date of termination, plus any interest and late
fees due hereunder and any other sums of money and damages owing on the date of
termination by Tenant to Landlord under this Lease or in connection with the
Leased Premises (all amounts set forth in this clause (iii) being referred to
herein, collectively, as the "Prior Obligations"). The amount as calculated
above shall be deemed immediately due and payable. Landlord and Tenant
acknowledge and agree that the payment of the amount set forth in clause (i)
above shall not be deemed a penalty, but shall merely constitute payment of
liquidated damages, it being understood that actual damages to Landlord are
extremely difficult, if not impossible, to ascertain. Tenant expressly
acknowledges and agrees that the liabilities and remedies specified in this
subparagraph (c) shall survive the termination of this Lease.
(d) Without terminating this Lease, declare immediately due and
payable the sum of the following: (i) the present value (discounted at the prime
rate of interest, as reported in the Wall Street Journal) of all Minimum Annual
Rent for Premises A, Income Rent and Additional Rent due and coming due under
this lease for the entire Remaining Term (as if by the terms of this Lease they
were payable in advanced, (ii) all Default Damages, and (iii) all Prior
Obligations, whereupon Tenant shall be obligated to pay the same to Landlord;
provided, however, that such payment shall not be deemed a penalty or liquidated
damages, but shall merely constitute payment in advance of all Minimum Annual
Rent for Premises A, Income Rent and Additional Rent payable hereunder
throughout the Remaining Term, and provided further, however, that upon Landlord
receiving such payment, Tenant shall be entitled to receive from Landlord all
rents received by Landlord from other assignees, tenant and subtenants on
account of said Leased Premises during the Remaining Term (but only to the
extent that the monies to which Tenant shall so become entitled do not exceed
the entire amount actually paid by Tenant to Landlord pursuant to this
subparagraph (d)), less all Default Damages of Landlord incurred but not yet
reimbursed by Tenant.
(e) Without terminating this Lease, terminate Tenant's right to
possession of the leased Premises as of the date of Tenant's Default, and
thereafter (i) neither Tenant nor any person claiming under or through Tenant
shall be entitled to possession of the Leased Premises, and Tenant shall
immediately surrender the Leased Premises to Landlord; and (ii) Landlord may
re-enter the Leased Premises and dispossess Tenant and any other occupants of
the Leased Premises by any lawful means and may remove their effects, without
prejudice to any other remedy which Landlord may have. Thereafter, Landlord may,
but shall not be obligated to, re-let all or any part of the Leased Premises as
the agent of Tenant for a term different from that which would otherwise have
constituted the balance of the Lease Term and for rent and on terms and
conditions different from those contained herein, whereupon Tenant shall be
obligated to pay to Landlord as liquidated damages the difference between the
rent provided for herein and that provided for in any lease covering a
subsequent re-letting of the Leased Premises, for the Remaining Term, together
with all Default Damages. Neither the filing of a dispossessory proceeding nor
an eviction of personalty in the Leased Premises shall be deemed to terminate
the Lease.
(f) Allow the Leased Premises to remain unoccupied and collect
rent from Tenant as it comes due.
(g) Xxx for injunctive relief or to recover damages for any loss
resulting from the Default.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall
be in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to
-10-
complete the same. Upon the occurrence of any such default, Tenant may xxx for
injunctive relief or to recover damages for any loss directly resulting from the
breach, but Tenant shall not be entitled to terminate this Lease or withhold,
offset or xxxxx any sums due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall
fail to perform any term, condition, covenant or obligation required to be
performed by it under this Lease and if Tenant shall, as a consequence thereof,
recover a money judgment against Landlord, Tenant agrees that it shall look
solely to Landlord's right, title and interest in and to the Building for the
collection of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay
in exercising any of its rights or remedies or other provisions of this Lease
shall constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If a Default shall occur, Tenant shall
pay to Landlord, on demand, all expenses incurred by Landlord as a result
thereof, including reasonable attorneys' fees, court costs and expenses actually
incurred; provided, however, that Landlord and Tenant shall each reimburse the
other for the reasonable and actual attorneys' fees incurred by such other party
in connection with any litigation initiated by Landlord or Tenant, as the case
may be, pursuant to this Lease which results in a final, unappealable judgment
as to the merits in the other party's favor.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
INTENTIONALLY OMITTED
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
Section 15.01. Definitions.
(a) "Environmental Laws" - All present or future federal, state
and municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances;" "hazardous materials," "toxic
substances," "solid waste" or "infectious waste" under Environmental Laws and
petroleum products.
Section 15.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to the use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant.
Section 15.03. Restrictions on Tenant. Tenant shall operate its
business and maintain the Leased Premises in compliance with all Environmental
Laws. Tenant shall not cause or permit the use, generation, release,
manufacture, refining, production, processing, storage or disposal of any
Hazardous Substances on, under or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substances,
except as necessary and appropriate for its Permitted Use in which case the use,
storage or disposal of such Hazardous Substances shall be performed in
compliance with the Environmental Laws and the highest standards prevailing in
the industry.
Section 15.04. Notices, Affidavits, Etc. Tenant shall immediately
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of the Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises and
shall immediately deliver to Landlord any notice received by Tenant relating to
(i) and (ii) above from any source. Tenant shall
-11-
execute affidavits, representations and the like within five (5) days of
Landlord's request therefor concerning Tenant's best knowledge and belief
regarding the presence of any Hazardous Substances on, under or about the Leased
Premises.
Section 15.05. Landlord's Rights. Landlord and its agents shall have
the right, but not the duty, upon advance notice (except in the case of
emergency when no notice shall be required) to inspect the Leased Premises and
conduct tests thereon to determine whether or the extent to which there has been
a violation of Environmental Laws by Tenant or whether there are Hazardous
Substances on, under or about the Leased Premises. In exercising its rights
herein, Landlord shall use reasonable efforts to minimize interference with
Tenant's business but such entry shall not constitute an eviction of Tenant, in
whole or in part, and Landlord shall not be liable for any interference, loss,
or damage to Tenant's property or business caused thereby.
Section 15.06. Tenant's Indemnification. Tenant shall indemnify
Landlord and Landlord's managing agent from any and all claims, losses,
liabilities, costs, expenses and damages, including attorneys' fees, costs of
testing and remediation costs, incurred by Landlord in connection with any
breach by Tenant of its obligations under this Article 15. The covenants and
obligations under this Article 15 shall survive the expiration or earlier
termination of this Lease.
Section 15.07. Landlord's Representation. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or generated
at, in, on, under or in connection with the Leased Premises prior to the
Commencement Date of this Lease except to the extent Tenant exacerbates the
same.
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure
to the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in
accordance with the laws of the State where the Building is located.
Section 16.03. Guaranty. Intentionally Omitted.
Section 16.04. Force Majeure. Landlord and Tenant (except with respect
to the payment of any monetary obligation) shall be excused for the period of
any delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
Section 16.05. Examination of Lease. The submission of this Lease by
Landlord to Tenant for examination or consideration does not constitute an offer
by Landlord to lease the Leased Premises and this Lease shall become effective,
if at all, only upon the execution and delivery thereof by Landlord and Tenant.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Leased Premises on the terms contained herein. The offer by Tenant
will be irrevocable until 6:00 p.m. Eastern time for fifteen (15) days after the
date of execution of this Lease.
Section 16.06. Indemnification for Leasing Commissions. Tenant warrants
and represents to Landlord that no party is entitled, as a result of the actions
of Tenant, to a commission or other fee resulting from the execution of this
Lease. Landlord warrants and represents to Tenant that no party is entitled, as
a result of the actions of Landlord, to a commission or other fee resulting from
the execution of this Lease. Landlord and Tenant agree to indemnify and hold
each other harmless from any loss, cost, damage or expense (including reasonable
attorneys' fees) incurred by the nonindemnifying party as a result of the
untruth or incorrectness of the foregoing warranty and representation, or
failure to comply with the provisions of this subparagraph. Landlord's employees
or its affiliates are representing Landlord and are not representing Tenant. The
parties acknowledge that certain officers, directors, shareholders, or partners
of Landlord or its general partner(s), are licensed real estate brokers and/or
salesmen under the laws of the State of Georgia. Tenant consents to such parties
acting in such dual capacities.
Section 16.07. Notices. Any notice required or permitted to be given
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to the party who is to receive such notice at the address
specified in Article 1. If delivered in person, notice shall be deemed given as
of the delivery date. If sent by overnight courier, notice shall be deemed given
as of the first business day after sending. If mailed,
-12-
the notice shall be deemed to have been given on the date which is three
business days after mailing. Either party may change its address by giving
written notice thereof to the other party.
Section 16.08. Partial Invalidity; Complete Agreement. If any provision
of this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 16.09. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent financial statements (certified and audited if the Minimum Annual
Rent hereunder exceeds $100,000) prepared as of the end of Tenant's fiscal year.
Such financial statements shall be signed by Tenant (or an officer of Tenant, if
applicable) who shall attest to the truth and accuracy of the information set
forth in such statements. All financial statements provided by Tenant to
Landlord hereunder shall be prepared in conformity with generally accepted
accounting principles, consistently applied.
Section 16.10. Signage. Landlord shall have the right to approve the
placing of signs and the size and quality of the same. Tenant shall place no
exterior signs on the Leased Premises without the prior written consent of
Landlord. Any signs not in conformity with the Lease may be immediately removed
by Landlord.
Section 16.11. Consent. Where the consent of a party is required,
such consent will not be unreasonably withheld.
Section 16.12. Parking. Tenant shall be entitled to park in the
Building's parking area. Tenant acknowledges and agrees, however, that Landlord
shall have no obligation to police or monitor the subject designated Tenant
parking area. Tenant agrees not to overburden the parking facilities and agrees
to cooperate with Landlord and other tenants in the use of parking facilities.
Landlord reserves the right in its absolute discretion to determine whether
parking facilities are becoming crowded and, in such event, to allocate parking
spaces among Tenant and other tenants. There will be no assigned parking unless
Landlord, in its sole discretion, may deem advisable. No vehicle may be repaired
or serviced in the parking area and any vehicle deemed abandoned by Landlord
will be towed from the project and all costs therein shall be borne by the
Tenant. All driveways, ingress and egress, and all parking spaces are for the
joint use of all tenants. There shall be no parking permitted on any of the
streets or roadways located within the Park.
Section 16.13. Time. Time is of the essence of each term and provision
of this Lease.
Section 16.14. Representations and Warranties. Tenant hereby
represents and warrants that (i) Tenant is duly organized, validly existing and
in good standing (if applicable) in accordance with the laws of the state under
which it was organized; (ii) Tenant is authorized to do business in the State
where the Building is located; and (iii) the individual(s) executing and
delivering this Lease on behalf of Tenant has been properly authorized to do so,
and such execution and delivery shall bind Tenant to its terms.
Section 16.15. Usufruct. Tenant's interest in the Leased Premises is a
usufruct, not subject to levy and sale, and not assignable by Tenant except as
expressly set forth herein.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of:
DUKE REALTY LIMITED PARTNERSHIP, an
/s/ Xxxx Xxxx Indiana limited partnership
--------------------------------------
Unofficial Witness By: Duke Realty Corporation,
its General Partner
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Notary Public By: /s/ W. Xxxxx Xxxxxxxxx
Notary Public Gwinnett County, Georgia ---------------------------------
My Commission Expires August 12, 2005 Name: W. Xxxxx Xxxxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
Atlanta Office Group
------------------------------
Signed, sealed and delivered TENANT:
as to Tenant, in the
presence of: INTELLIGENT SYSTEMS CORPORATION, a
Georgia corporation
/s/ Xxxxxxxxx Xxxxxx By: /s/ J. Xxxxxx Xxxxxxx
--------------------------------------- ---------------------------------
Unofficial Witness Name: J. Xxxxxx Xxxxxxx
-------------------------------
Title: President & CEO
/s/ Xxxxxxx X. Cap ------------------------------
---------------------------------------
Notary Public Attest: /s/ Xxxxxx Xxxxxx
XXXXXXX X XXX -----------------------------
Notary Public, Xxxx County, Georgia Name: Xxxxxx Xxxxxx
My Commission Expires March 15, 2005 -------------------------------
Title: VP & CFO
------------------------------
-14-
[GRAPH]
EXHIBIT "A" XXXXXXXXXXX ROAD EXHIBIT "A"
EXHIBIT B
RESERVED
B-1
EXHIBIT C
LETTER OF UNDERSTANDING
Duke Realty Limited Partnership, an Indiana limited partnership
Attention: [Property Manager]
[Address]
[City, State Zip]
RE: Lease between DUKE REALTY LIMITED PARTNERSHIP, AN INDIANA LIMITED
PARTNERSHIP ("Landlord"), and _______________________ ("Tenant") for the
Leased Premises located at _______________________________________ (the
"Leased Premises"), dated _____________________ (the "Lease").
Dear ______________________:
The undersigned, on behalf of the Tenant, certifies to the Landlord as
follows:
1. The Commencement Date under the Lease is ____________________.
2. The rent commencement date is ________________________.
3. The expiration date of the Lease is _______________________.
4. The Lease (including amendments or guaranty, if any) is the
entire agreement between Landlord and Tenant as to the leasing
of the Leased Premises and is in full force and effect.
5. Tenant has accepted the Leased Premises as of the Commencement
Date.
6. To the best of the undersigned's knowledge, there are no
uncured events of default by either Tenant or Landlord under
the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of
Understanding to be executed this ___ day of ______________, 2002.
____________________________________
By__________________________________
Printed Name:_______________________
Title:______________________________
C-1
EXHIBIT D
SPECIAL STIPULATIONS
The Special Stipulations set forth herein are hereby incorporated into the body
of the lease to which these Special Stipulations are attached (the "Lease"), and
to the extent of any conflict between these Special Stipulations and the Lease,
these Special Stipulations shall govern and control.
1. Tenant Improvements Allowance. Tenant shall have the right,
upon written notice to Landlord, to be exercised (if at all) on or before May
31, 2004, to deduct Thirty Thousand and No/100 Dollars ($30,000.00) from the
Income Rent in order to construct and install various leasehold improvements
within the Leased Premises subject to Section 7.03 of the Lease. If Tenant fails
to exercise such right as aforesaid, Tenant shall be deemed to have waived its
rights pursuant to this paragraph (a).
2. HVAC. Notwithstanding anything to the contrary in the Lease,
Landlord shall, at its sole cost and expense, maintain, repair and replace the
heating, ventilation and air-conditioning system (the "HVAC") serving the Leased
Premises during the Lease Term; provided, however, that Tenant shall be solely
responsible for damages or defects caused by Tenant or any agents, contractors,
employees or invitees of Tenant, or improper operation.
D-1
EXHIBIT E
FORM OF INCOME RENT STATEMENT
Sublesses: Office Space: Industrial Space: Gross Income: Expenses: Net Income:
---------- ------------- ----------------- ------------- --------- -----------
Total:
E-1
