Common use of Delay in Delivery of Possession Clause in Contracts

Delay in Delivery of Possession. (A) If Landlord has not satisfied the Delivery of Possession requirements by the Anticipated Delivery Date, Landlord shall notify Tenant in writing periodically (and otherwise promptly upon Tenant's request) of the status of Delivery of Possession requirements and the date by which Landlord anticipates in good faith that it will satisfy the Delivery of Possession requirements, until the Delivery of Possession requirements have been satisfied. (B) If Delivery of Possession does not occur on or before the Anticipated Delivery Date, other than due to a Tenant Delay, then in addition to all other rights and remedies that Tenant may have against Landlord (but without duplication in recovering the amounts due Tenant), Landlord shall pay to Tenant an amount equal to Nine Hundred Seventy-One and 98/100 Dollars ($971.98) for each day of delay (the "Late Delivery Fee"). Tenant shall receive the Late Delivery Fee for each day of delay from the Anticipated Delivery Date until delivery of the Premises is made to Tenant consistent with the terms of this Lease, including substantial completion of Landlord's Work, and all other Delivery of Possession requirements are satisfied. If Landlord fails to pay any portion of the Late Delivery Fee within ten (10) days after demand therefor, then in addition to all other rights and remedies that Tenant may have against Landlord, Tenant shall be entitled to deduct the unpaid and overdue portion of the Late Delivery Fee from Rent otherwise becoming due hereunder, together with interest on the unpaid balance thereof at the Default Rate from the date originally due. "Tenant Delay" means an act or omission of Tenant in violation of this Lease which causes Landlord to fail to timely complete Landlord's Work. The parties agree that Tenant's actual damages as a result of Landlord's late delivery would be extremely difficult or impracticable to determine, and acknowledge that the Late Delivery Fee has been agreed upon, after negotiation, as the parties' best and reasonable estimate of Tenant's damages.

Delay in Delivery of Possession. (A) If for any reason Landlord has cannot satisfied deliver possession of the Delivery of Possession requirements by Premises to Tenant on or before the Anticipated Delivery Scheduled Commencement Date, Landlord shall notify not be subject to any liability therefor, and such failure shall not affect the validity of this Lease or the obligations of Tenant hereunder, but, in writing periodically (and otherwise promptly upon such case, Tenant shall not be obligated to pay Base Monthly Rent or Tenant's request) ’s Share of Direct Expenses until the Commencement Date has occurred; provided, however, if Landlord cannot deliver possession of the status of Delivery of Possession requirements and the date by which Landlord anticipates in good faith that it will satisfy the Delivery of Possession requirements, until the Delivery of Possession requirements have been satisfied. (B) If Delivery of Possession does not occur Premises to Tenant on or before the Anticipated Delivery date (“Outside Commencement Date”) that is one hundred eighty (180) days following the Scheduled Commencement Date, other than due to a Tenant Delay, then in addition to all other rights and remedies that Tenant may have against Landlord (but without duplication in recovering the amounts due Tenant), Landlord shall pay to Tenant an amount equal to Nine Hundred Seventy-One and 98/100 Dollars ($971.98) for each day of delay (the "Late Delivery Fee"). Tenant shall receive have the Late Delivery Fee for each day of delay from right, as its sole and exclusive remedy, to terminate this Lease by providing Landlord with written notice thereof within five (5) days following the Anticipated Delivery Outside Commencement Date until delivery (provided, however, in the event that Landlord’s failure to deliver possession of the Premises is made to Tenant consistent on or before the Outside Commencement Date is attributable, in whole or in part, to any action or inaction by Tenant or Tenant’s Agents (including, without limitation, any Tenant Delay described in the Work Letter attached hereto as Exhibit C ) or by reason of any causes beyond the reasonable control of Landlord (“Force Majeure Delay”), the Outside Commencement Date shall be extended for the period of delay attributable to the action or inaction by Tenant or Tenant’s Agents in question and/or the Force Majeure Delay in question, as applicable). In the event Tenant provides Landlord with the terms written notice of termination within such five (5) day period, this Lease shall terminate upon such notice and Landlord shall promptly return to Tenant any deposits made by Tenant to Landlord under this Lease, including substantial completion of Landlord's Work, and all other Delivery of Possession requirements are satisfied. If Landlord In the event Tenant fails to pay any portion provide Landlord with written notice of the Late Delivery Fee termination within ten such five (105) days after demand thereforday period, then in addition to all other rights and remedies that Tenant may have against Landlord, Tenant shall be entitled to deduct the unpaid and overdue portion of the Late Delivery Fee from Rent otherwise becoming due hereunder, together with interest on the unpaid balance thereof at the Default Rate from the date originally due. "Tenant Delay" means an act or omission of Tenant in violation of this Lease which causes Landlord shall continue in full force and effect. In addition, if Tenant is delayed from receiving applicable governmental approvals of permits for the improvements to fail be constructed by Tenant pursuant to timely complete Landlord's Work. The parties agree that Tenant's actual damages the Work Letter as a result of Landlord's late any so-called “shelter in place”, “stay at home”, “lockdown” or other similar order instituted by the municipal, county, state or federal government (and “Order”), the Commencement Date shall be delayed on a day for day basis, not to exceed thirty (30) days, for each day that the Order is in effect from and after the full execution and delivery would be extremely difficult or impracticable of this Lease. Tenant acknowledges that no Order is in effect as of the date of this Lease. If it is determined during the first (1st) twelve (12) months after the date of delivery to determineTenant pursuant to Section 2.5 that the roof of the Premises of HVAC system serving the Premises are not in good working condition as of the date of delivery to Tenant, and acknowledge that the Late lack of compliance with the Delivery Fee has been agreed uponCondition is not due to Tenant’s particular use of, after negotiationor activities or work in or to the Premises, then Landlord shall, as Tenant’s sole remedy, remedy the parties' best and defects and/or correct the non-compliance at no cost or charge to Tenant within a commercially reasonable estimate time following Landlord’s receipt of Tenant's damageswritten notice from Tenant which sets forth in particular detail, on a line by line basis, the items of non-compliance, which notice shall be delivered to Landlord by no later than twelve (12) months after the date of delivery to Tenant pursuant to Section 2.5, with time being of the essence for such notice.

Delay in Delivery of Possession. (A) If Landlord has not satisfied the Delivery of Possession requirements by the Anticipated Delivery Date, Landlord shall notify Tenant in writing periodically (and otherwise promptly upon Tenant's request) landlord is unable to deliver possession of the status of Delivery of Possession requirements and the date by which Landlord anticipates in good faith that it will satisfy the Delivery of Possession requirements, until the Delivery of Possession requirements have been satisfied. (B) If Delivery of Possession does not occur on or before the Anticipated Delivery Date, other than due to a Tenant Delay, then in addition to all other rights and remedies that Tenant may have against Landlord (but without duplication in recovering the amounts due Tenant), Landlord shall pay to Tenant an amount equal to Nine Hundred Seventy-One and 98/100 Dollars ($971.98) for each day of delay (the "Late Delivery Fee"). Tenant shall receive the Late Delivery Fee for each day of delay from the Anticipated Delivery Date until delivery of the Premises is made to Tenant consistent with the terms of this Lease, including substantial completion of Landlord's Work, and all other Delivery of Possession requirements are satisfied. If Landlord fails to pay any portion of the Late Delivery Fee within ten (10) days after demand therefor, then in addition to all other rights and remedies that Tenant may have against Landlord, Tenant shall be entitled to deduct the unpaid and overdue portion of the Late Delivery Fee from Rent otherwise becoming due hereunder, together with interest on the unpaid balance thereof at the Default Rate from the date originally due. "Tenant Delay" means an act or omission of Tenant in violation of this Lease which causes Landlord to fail to timely complete Landlord's Work. The parties agree that Tenant's actual damages premises as a result of Landlordcauses beyond landlord's late delivery would reasonable control, landlord shall not be extremely difficult or impracticable liable for any damage caused for failing to determinedeliver possession, and acknowledge this lease shall not be void or voidable. Tenant shall not be liable for rent until landlord delivers possession of the premises to tenant. Notwithstanding the above, the lease shall be voidable by either party in the event that construction on the Late Delivery Fee has new building does not begin or ground broken within 9 weeks of the execution of this lease and option agreement. Section Three Leasing and Payment of Rental Landlord leases to tenant and tenant rents from landlord the premises for the term and for the rent as defined in Section One. Tenant agrees to pay to landlord each installment of rental as provided above. The rent shall be paid by tenant to landlord without deduction or offset, delivered to the building office or to such other person or at such other place as landlord may from time to time designate in writing. No security or guaranty which may now or subsequently be furnished landlord for performance by tenant of the covenants or conditions of this lease shall in any way be a bar or defense to any action in unlawful detainer, or for the recovery of the premises, or to any action which landlord may at any time commence for a breach of any of the covenants or conditions of this lease. SECTION FOUR Lessee's Option To Purchase Demised Premise Lessor grants to lessee an option to buy the leased premises after the first two years of the lease have been agreed uponcompleted. After this two year period, after negotiationthe lessee may elect to purchase the leased premises at a price of to be determined as follows: The purchase price shall be based on the average of two appraisals; one appraisal to be provided by an appraiser selected by the landlord, as and one appraiser selected by the tenant. If the average of the two appraisal is unacceptable to either party or one appraisal deviates more than ten percent (10%) from the lower appraisal, then the parties shall mutually select a third appraiser who shall prepare an appraisal that shall be binding upon the parties' best . All appraiser shall be licensed in the State of Georgia and shall be qualified experts in Commercial Real Estate Valuation. The option shall be excised in writing, mailed by certified mail to the landlord. Closing on the property shall be set within 90 days of the exercise of the receipt of the option notice to the landlord. The option shall remain in effect throughout a valid lease period. At closing, the purchase price shall be payable in cash. Said option is conditional upon the tenant's full performance the lease. During the term of this lease, the landlord may not transfer or sell the leased premisses without the written permission of the Lessee. Notwithstanding the above, should the lessee breach the lease in any manner or fashion, this option shall cease by operation of law and agreement of the parties and the landlord may sell or transfer the leased premises without the approval of the lessee; however, all other convents, conditions, and provisions of the lease shall remain in effect. Notwithstanding the above option, the option shall not operate to prevent the landlord from borrowing against the leased premises or executing any Deed of Trust, mortgage, or Deed to Secure Debt. Lessee acknowledges that Lessee's interests as lessee or under any option agreement is subordinate to the interests of any current or future lending or financial institution who has a security interest in the leased premises. NOTWITHSTANDING THE ABOVE, THE LANDLORD MAY TRANSFER THE PROPERTY TO ANY STATE, LOCAL OR FEDERAL GOVERNMENT, AUTHORITY OR SUBDIVISION THEREOF, FOR THE PURPOSE OF DEVELOPING AN INDUSTRIAL PARK. In the event of the exercise of this option, lessor agrees to convey the property to lessee by warranty deed free and clear of all encumbrances except the taxes and assessments which under this lease are to be paid by lessee. Prior to consummation of the option and during the term of the lease, lessee may not place deeds to secure debt or deeds of trust on the property. In the event and on the lessee's exercise of the option to purchase the premises in the manner provided, a contract for the sale and purchase of the property exists, and the relationship of lessor and lessee is automatically terminated, and the lessee shall be in possession of the premises as a vendee under an executory contract. Whenever lessee shall desire to exercise this option, it shall give lessor written notice. Lessor will within reasonable estimate time after receipt of Tenantsuch notice deliver, or cause to be delivered, to lessee a preliminary title report by private attorney or title company licensed in Georgia. Defects in title, if any, shown by such report shall be remedied by lessor within thirty days of notice to Landlord of such defects and Landlord shall deliver to lessee at the time of closing an owner's damagespolicy of title insurance issued by the company in the amount of the purchase price subject only to encumbrance, exceptions, and reservations mentioned in this lease. OPTION TO RENEW FOR ADDITIONAL ONE YEAR PERIOD ---------------------------------------------- Notwithstanding any provision to the contrary, the Lessee shall have the option to renew the lease for an additional term of 12 months or one year during an rental period commencing at the expiration of the initial lease term. All of the terms and conditions of the lease shall apply during the renewal terms. This option shall be excised by written notice given to the Landlord not less than thirty (30) days prior to the expiration of the initial lease term. If notice is not given in the manner provided herein within the time specified, this option shall expire.

Delay in Delivery of Possession. (A) If Landlord has not satisfied the Delivery 4.01 Attached hereto as Exhibit "D" is a schedule of Possession requirements by the Anticipated Delivery Date, Landlord shall notify Tenant in writing periodically (and otherwise promptly upon Tenant's request) construction of the status of Delivery of Possession requirements and Leased Premises, including the date dates by which Tenant must make certain decisions regarding the Leased Premises (hereinafter referred to as the "Construction Schedule"). Landlord anticipates in and Tenant shall use their diligent good faith efforts to ensure construction of the Leased Premises remains on schedule in accordance with the Construction Schedule, provided, however, that it will satisfy in no event shall the Delivery failure of Possession requirements, until the Delivery of Possession requirements have been satisfied. (B) If Delivery of Possession does not Landlord to cause Substantial Completion to occur on or before the Anticipated Delivery scheduled completion date, constitute a default by Landlord under this Lease. In the event of any delay in Substantial Completion of the Leased Premises caused by Tenant Delays (hereafter defined), the Commencement Date (for purposes of Tenant's obligation to commence the payment of rent and for purposes of fixing the lease term) shall be the date on which Substantial Completion would have occurred but for such delay. 4.02 Landlord acknowledges and agrees that it is of critical importance to Tenant that Landlord (i) shall have completed all aspects of the Base Building Improvements and Tenant Improvements as necessary to enable Tenant to begin its Tenant fixturing by June 26, 1998 (the "Tenant Fixturing Date"), other than and (ii) shall have achieved Substantial Completion, as herein defined, by July 17, 1998 (the "Target Substantial Completion Date"). Accordingly, Landlord agrees that Landlord shall be liable to Tenant for any and all damages suffered by Tenant as a result of Landlord's failure to meet such construction deadlines, except to the extent such failure is due to a Tenant DelayDelays or Excusable Delays. Notwithstanding the foregoing damages, then in the event the completion of the required work by Landlord is so delayed for thirty (30) days or less following said Tenant Fixturing Date or Target Substantial Completion Date (whichever is applicable), said damages shall be limited to one-half (1/2) of the total holdover rent paid by Tenant to Tenant's current landlord (estimated at $62,500.00), and in the event completion of the required work is so delayed for more than thirty (30) days following said Tenant Fixturing Date or Target Substantial Completion Date (whichever is applicable), said damages shall be limited to an additional One Hundred Fifty Thousand Dollars ($150,000.00). Furthermore, in addition to all other rights and remedies that Tenant may have against Landlord (but without duplication in recovering the amounts due Tenant), Landlord shall pay to Tenant an amount equal to Nine Hundred Seventy-One and 98/100 Dollars ($971.98) for each day of delay (the "Late Delivery Fee"). Tenant shall receive the Late Delivery Fee for each day of delay from the Anticipated Delivery Date until delivery of the Premises is made to Tenant consistent with the terms of this Lease, including substantial completion of Landlord's Work, and all other Delivery of Possession requirements are satisfied. If Landlord fails to pay any portion of the Late Delivery Fee within ten (10) days after demand therefor, then in addition to all other rights and remedies that Tenant may have against Landlordliability for such damage amounts, Tenant shall be entitled to deduct a credit against future rent equal to the unpaid number of days by which the work necessary to achieve Substantial Completion remains incomplete following the Target Substantial Completion Date for any reason other than Tenant Delays or Excusable Delays. 4.03 In the event the Substantial Completion has not occurred by November 14, 1998, as such date has been extended for Excusable Delays and overdue portion of Tenant Delays, or, in the Late Delivery Fee from Rent otherwise becoming due hereunderevent Substantial Completion has not occurred by March 14, together with interest on 1999, as such date has been extended for only Tenant Delays, then, in either said event, Tenant shall have the unpaid balance thereof at the Default Rate from the date originally due. "Tenant Delay" means an act or omission of Tenant in violation of right to terminate this Lease which causes by giving Landlord five (5) days written notice, whereupon neither party shall have further liability to fail to timely complete Landlord's Work. The parties agree that Tenant's actual damages the other hereunder except as a result of Landlord's late delivery would be extremely difficult or impracticable to determine, and acknowledge that the Late Delivery Fee has been agreed upon, after negotiation, as the parties' best and reasonable estimate of Tenant's damagesprovided for in Section 4.02 above.