Exhibit 10.8
[LOGO] GREATER DALLAS ASSOCIATION OF REALTORS(R), INC. [LOGO]
COMMERCIAL LEASE AGREEMENT
TABLE OF CONTENTS
Article Page
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1. Defined Terms............................................... 1
2. Lease and Lease Term........................................ 2
3. Rent and Security Deposit................................... 2
4. Taxes....................................................... 2
5. Insurance and Indemnity..................................... 2
6. Use of Demised Premises..................................... 3
7. Property Condition: Maintenance, Repairs and Alterations.... 4
8. Damage or Destruction....................................... 4
9. Condemnation................................................ 5
10. Assignment and Subletting................................... 5
11. Default and Remedies........................................ 5
12. Landlord's Contractual Lien................................. 6
13. Protection of Lenders....................................... 6
14. Professional Service Fees................................... 7
15. Environmental Representations and Indemnity................. 7
16. Miscellaneous............................................... 8
17. Additional Provisions....................................... 8
An Exhibit or Exhibits may be attached to this Lease which shall be made a part
of this Lease for all purposes [check all boxes which apply].
EXHIBITS TO LEASE
|X| Exhibit A Floor Plan/Site Plan
|X| Exhibit B Legal Description of Property
|X| Exhibit C Renewal Options
|_| Exhibit D Right of First Refusal for Additional Space
|X| Exhibit E Guarantee
|_| Exhibit F Expense Reimbursement
|_| Exhibit G Percentage Rental/Gross Sales Reports
|X| Exhibit H Construction of Improvements
|_| Exhibit I _____________________
ARTICLE ONE: DEFINED TERMS
As used in this Lease, the following terms set forth in this Article One
shall have the respective meanings set forth hereinbelow:
1.01. Date of Lease: June 29, 1994
1.02. Landlord: Greenview Limited Partnership
Address of Landlord: c/o Republic Management, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇. ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
1.03. Tenant: Network-1 Software & Technology, Inc.
Address of Tenant: ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ______________________
1.04. Premises:
A. Street Address (including county): ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
B. Floor or site plan: Being a floor area of approximately 7,489
square feet and being approximately IRR by IRR feet (measured
to the exterior of outside walls and to the center of the
interior walls, and being more particularly shown in outline
on the floor/site plan attached hereto as Exhibit A. (The
aforementioned street address and the floor or site plan shall
collectively be referred to herein as the "Demised Premises".)
C. Legal description: The legal description of the property on
which the floor/site plan is situated is more particularly
described in Exhibit B attached hereto (the "Property").
1.05. Lease Term: 5 years and -0- months beginning on the date set forth
in Exhibit H and ending on the 31st day of July, 1999.
1.06. Base Rent: $262,115 total Base Rent for the Lease Term payable in
monthly installments of $4,368.58 per month in advance
1.07. Security Deposit: $4,368.58
1.08. Permitted Use: [See Section 6.01] Office warehouse
1.09. Principal Broker: [If none, so state] Republic Management, Inc.
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
1.10 Cooperating Broker: [If none, so state] ▇▇▇▇▇▇ Property Advisors
Address: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.11. Professional Service Fees: [See Article 14]
A. Payments due to the Principal Broker shall be calculated and
paid in accordance with Paragraph |_| A or |_| B of Section
14.01. [Check applicable paragraph] *Based on 42 months
B. The percentage applicable for leases in Sections 14.01 and
14.02 shall be Six and one half percent (6 1/2%) and the
percentage applicable in Section 14.02 in the event of a sale
shall be n/a percent (___%).
1.12 Holdover Rent: [See Section 2.04] 125% of Base Rental per month in
advance.
1.13. Daily Late Charge: [See Section 3.03] Twenty-five ($25.00) Dollars
($25.00) per day, after the fifth of each month.
1.14. Acceptance: [See Section 16.13] The number of days for acceptance of
this offer to lease shall be 5 days.
Page 1
ARTICLE TWO: LEASE AND LEASE TERM
2.01. Lease of Demised Premises for Lease Term. Landlord leases the
Demised Premises to Tenant and Tenant leases the Demised Premises from Landlord
for the Lease Term stated in Section 1.05. As used herein, the "Commencement
Date" shall be the date specified in Section 1.05 for the beginning of the Lease
Term, unless advanced or delayed under any provision of this Lease.
2.02. Delay in Commencement. Landlord shall not be liable subject to
Exhibit H, Paragraph 5, to Tenant if Landlord does not deliver possession of the
Demised Premises to Tenant on the first date specified in Section 1.05 above.
Landlord's nondelivery of possession of the Demised Premises to Tenant on that
date shall not affect this Lease or the obligations of Tenant under this Lease.
However, the Commencement Date shall be delayed until possession of the Demised
Premises is delivered to Tenant. The Lease Term shall be extended for a period
equal to the delay in delivery of possession of the Demised Premises to Tenant,
plus the number of days necessary for the Lease Term to expire on the last day
of a month. If Tenant gives such notice, the Lease shall be canceled effective
as of the date of its execution, and no party hereto shall have any obligations,
one to the other. If Tenant does not give such notice within the time specified,
Tenant shall have no right to cancel the Lease, and the Lease Term shall
commence upon the delivery of possession of the Demised Premises to Tenant. If
delivery of possession of the Demised Premises to Tenant is delayed, Landlord
and Tenant shall upon such delivery, execute an amendment to this Lease setting
forth the Commencement Date and expiration date of the Lease Term.
2.03. Early Occupancy. If Tenant occupies the Demised Premises prior to
the Commencement date, Tenant's occupancy of the Demised Premises shall be
subject to all of the provisions of this Lease. Early occupancy of the Demised
Premises shall not advance the expiration date of the Lease Term. Unless
provided otherwise herein, Tenant shall pay Base Rent and all other charges
specified in this Lease for the period of occupancy.
2.04. Holding Over. Tenant shall vacate the Demised Premises upon the
expiration of the Lease Term or earlier termination of this Lease. Tenant shall
reimburse Landlord for and Indemnify Landlord against all damages incurred by
Landlord as a result of any delay by Tenant in vacating the Demised Premises. If
Tenant does not vacate the Demised Premises upon the expiration of the Lease
Term or earlier termination of the Lease, Tenant's occupancy of the Demised
Premises shall be a "month to month" tenancy, subject to all of the terms of
this Lease applicable to a month to month tenancy, except that the Base Rent per
month then in effect shall be the amount designated in Section 1.12.
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01. Manner of Payment. All sums payable hereunder by Tenant (the "Rent")
shall be made to the Landlord at the address designated in Section 1.02 or to
such other party or address as Landlord may designate. Any and all payments made
to a designated third party for the account of the Landlord shall be deemed made
to Landlord when received by said designated third party. All sums payable by
Tenant hereunder, whether or not expressly denominated as rent, shall constitute
rent for the purposes of Section 502(b)(6) of the Bankruptcy Code and for all
other purposes. The Base Rent is the minimum rent for the Demised Premises and
is subject to the terms and conditions contained in this Lease together with the
Exhibits attached hereto, if any.
3.02. Time of Payment. Upon execution hereof, Tenant shall pay the
installment of rent for the first month of the Lease Term. On or before the
first day of the second month of the Lease Term and of each month thereafter,
the installment of rent and other sums due hereunder shall be due and payable,
in advance, without off-set, deduction or prior demand. If the Lease Term
commences or ends on a day other than the first or last day of a calendar month,
the rent for any fractional calendar month following the Commencement Date or
preceding the end of the Lease Term shall be prorated by days.
3.03. Late Charges. Tenant's failure to pay sums due hereunder promptly
may cause Landlord to incur unanticipated costs. The exact amount of such costs
are impractical or extremely difficult to ascertain. Such costs may include, but
are not limited to processing and accounting charges and late charges which may
be imposed on Landlord by any ground lease, deed of trust or mortgage
encumbering the Demised Premises. Therefore, if any sum due hereunder is not
received within 5 days of when due, Tenant shall pay the Landlord a late charge
equal to the Daily Late Charge for each day after the due date until such
delinquent sum is received. If any check tendered in payment of any sum due from
Tenant hereunder is dishonored for any reason, Tenant shall pay a late charge
for each day after said due date until good funds are received by the Landlord.
The parties agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of such late payment or such
dishonored check.
3.04. Security Deposit. Upon execution hereof, Tenant shall deposit with
Landlord a cash Security Deposit in the sum stated in Section 1.07. Landlord may
apply all or part of the Security Deposit to any unpaid rent or other charges
due from Tenant or to cure any other defaults of Tenant. If Landlord uses any
part of the Security Deposit, Tenant shall restore the Security Deposit to its
full amount within ten (10) days after landlord's written demand. Tenant's
failure to restore the full amount of the Security Deposit within the time
specified shall be a default under this Lease. No interest shall be paid on the
Security Deposit. Landlord shall not be required to keep the Security Deposit
separate from its other accounts and no trust relationship is created with
respect to the Security Deposit. Upon any termination of this Lease not
resulting from Tenant's default, and after Tenant has vacated the Demised
Premises in the manner required by this Lease, Landlord shall refund the unused
portion of the Security Deposit to Tenant. Landlord will hold the security
deposit in accordance with applicable law.
3.05. Good Funds Payments. If, for any reason whatsoever, any two or more
payments by check from Tenant to Landlord for Rent are dishonored and returned
unpaid, thereafter, Landlord may, at Landlord's sole option, upon written notice
to Tenant, require that all future payments of Rent for the remaining term of
the Lease shall be made by cash, cashier's check, or money order and that the
delivery of Tenant's personal or corporate check will no longer constitute
payment of Rent as provided in this Lease. Any acceptance by Landlord of a
payment for Rent by Tenant's personal or corporate check thereafter shall not be
construed as a waiver of Landlord's rights to insist upon payment by good funds
as set forth in this Section 3.05.
ARTICLE FOUR: TAXES
4.01. Payment by Landlord. Landlord shall pay the real estate taxes on the
Demised Premises during the Lease Term.
4.02. Improvements by Tenant. In the event the real estate taxes levied
against the Demised Premises fir the real estate tax year in which the Lease
Term commences are increased in the current tax year or subsequent tax years as
a result of any alterations, additions or improvements made by Tenant or by
Landlord at the request of Tenant, Tenant shall pay to Landlord upon demand the
amount of such increase and continue to pay such increase during the term of
this Lease. Landlord shall use reasonable efforts to obtain from the tax
assessor or assessors a written statement of the total amount of such increase.
4.03. Joint Assessment. If the real estate taxes are assessed against the
Demised Premises jointly with other property not constituting a part of the
Demised Premises, the real estate taxes for such years shall be equal to the
amount bearing the same proportion to the aggregate assessment that the total
square feet of building area in the Demised Premises bears to the square feet of
building area included in the joint assessment.
4.04. Personal Property Taxes. Tenant shall pay all taxes assessed against
trade fixtures, furnishings, equipment, or any other personal property belonging
to Tenant. Tenant shall use reasonable efforts to have its personal property
taxed separately from the Demised Premises, but if any of Tenant's personal
property is taxed with the Demised Premises, Tenant shall pay the taxes for the
personal property within fifteen (15) days after Tenant receives a written
statement for such personal property taxes.
ARTICLE FIVE: INSURANCE AND INDEMNITY
5.01. Casualty Insurance. During the Lease Term, Landlord shall maintain
policies of insurance covering loss of or damage to the Demised Premises in such
amount or percentage of replacement value as Landlord deems reasonable in
relation to the age, location, type of construction and physical condition of
the Demised Premises and the availability of such insurance at reasonable rates.
Such policies shall provide protection against all perils included within the
classification of fire and extended coverage and any other perils which Landlord
deems necessary. Landlord may obtain insurance coverage for Tenant's fixtures,
equipment or building improvements installed by Tenant in or on the Demised
Premises. Tenant shall at Tenant's expense, maintain such primary or additional
insurance on its fixtures, equipment and building improvements as Tenant deems
necessary to protect its interest. Tenant shall not do or permit to be done
anything which invalidates any such insurance policies.
Page 2
Demised Premises, whether such damage or injury is caused by or results from:
(a) fire, steam, electricity, water, gas or rain; (b) the breakage, leakage,
obstruction or other defects or pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures or any other cause; (c) conditions arising
on or about the Demised Premises or upon other portions of any building of which
the Demised Premises is a part, or from other sources or places; or (d) any act
or omission of any other tenant of any building of which the Demised Premises is
a part. Landlord shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 6.08 shall not, however, exempt
Landlord from liability for Landlord's gross negligence or willful misconduct.
ARTICLE SEVEN: PROPERTY CONDITION, MAINTENANCE, REPAIRS AND ALTERATIONS
7.01. Property Conditions. Intentionally omitted.
7.02. Acceptance of Demised Premises. Tenant acknowledges that a full and
complete inspection of the Demised Premises and adjacent common areas has been
made and Landlord has fully and adequately disclosed the existence of any
defects which would interfere with Tenant's use of the Demised Premises for
their intended commercial purpose. Tenant specifically acknowledges that as a
result of such inspection and disclosure, Tenant has taken possession of the
Demised Premises and has made its own determination to fully accept same in its
as-is condition, subject to completion of Landlord's work described in Exhibit
H.
7.03. Obligation to Repair. Except as otherwise provided herein,
including, without limitation, the provisions of Section 17, Landlord shall be
under no obligation to perform any repair, maintenance or management service in
the Demised Premises or adjacent common areas. Tenant shall be fully
responsible, at its expense, for all repair, maintenance and management services
other than those which are expressly assumed by Landlord.
A. Landlord's Obligation to Repair.
(1) Subject to the provisions of Article Eight (Damage or
Destruction) and Article Nine (Condemnation) and except for damage
caused by any act or omission of Tenant, Landlord shall keep the
foundation, roof and the structural portions of exterior walls of
the improvements of the Demised Premises in good order, condition
and repair. Landlord shall not be obligated to maintain or repair
windows, doors, plate glass or the surfaces of walls. In addition,
Landlord shall not be obligated to make any repairs under this
Section until a reasonable time after receipt of written notice from
Tenant of the need of such repairs. If any repairs are required to
be made by Landlord, Tenant shall, at Tenant's sole cost and
expense, promptly remove Tenant's fixtures, inventory, equipment and
other property, to the extent required to enable Landlord to make
such repairs. Landlord's liability hereunder shall be limited to the
cost of such repairs or corrections. Tenant waives the benefit of
any present or future law which might give Tenant the right to
repair the Demised Premises at Landlord's expense or to terminate
the Lease because of the condition. Landlord is responsible for the
care of the landscaping & regular mowing of grass & maintenance of
the paving and parking lot.
(2) Landlord and Tenant expressly agree that all repair,
maintenance management and other services to be performed by
Landlord or Landlord's agents exclusively consist of the exercise of
professional judgment by such service providers, and Tenant
expressly waives any claims for breach of warranty arising from the
performance of such services.
B. Tenant's Obligation to Repair. Subject to the provisions of the
last sentence of Section 7.01, the preceding Section 7.03.A, Article Eight
(Damage or Destruction) and Article Nine (Condemnation), Tenant shall, at
all times, keep all other portions of the Demised Premises in good order,
condition and repair, including but not limited to repairs (including all
necessary replacements) of the windows, plate glass, doors, heating
system, air conditioning equipment, electrical and lighting system, fire
protection sprinkler system, dock levelers, interior and exterior plumbing
and the interior of the building in general. Landlord is responsible for
plumbing repairs below the slab if not caused by Tenant's actions. In
addition, Tenant shall, at Tenant's expense, repair any damage to any
portion of the Property, including the roof, foundation, or structural
portions of the exterior walls of the Demised Premises, caused by Tenant's
acts or omissions. If Tenant fails to maintain and repair the Property as
required by this Section, Landlord may, on ten (10) days' prior written
notice, enter the Demised Premises and perform such maintenance or repair
on behalf of Tenant, except that no notice shall be required in case of
emergency, and Tenant shall reimburse Landlord for all costs incurred in
performing such maintenance or repair immediately upon demand.
7.04. Alterations, Additions and Improvements. Tenant shall not create any
openings in the roof or exterior walls, or make any alterations, additions or
improvements to the Demised Premises without the prior written consent of
Landlord. Consent for nonstructural alterations, additions or improvements shall
not be unreasonably withheld by Landlord. Tenant shall have the right to erect
or install shelves, bins, machinery, air conditioning or heating equipment and
trade fixtures, provided that Tenant complies with all applicable governmental
laws, ordinances, codes, and regulations. At the expiration or termination of
this Lease, Tenant shall, subject to the restrictions of Section 7.05 below,
have the right to remove such items so installed by it, provided Tenant is not
in default at the time of such removal and provided further that Tenant shall,
at the time of removal of such items, repair in a good and workmanlike manner
any damage caused by installation or removal thereof. Tenant shall pay for all
costs incurred or arising out of alterations, additions or improvements in or to
the Demised Premises and shall not permit a mechanic's or materialman's lien to
be filed against the Demised Premises. Upon request by Landlord, Tenant shall
deliver to Landlord proof of payment reasonably satisfactory to Landlord of all
costs incurred or arising out of any such alterations, additions or
improvements.
7.05. Conditions upon Termination. Upon the termination of the Lease,
Tenant shall surrender the Demised Premises to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provisions of the Lease. Tenant
shall not be obligated to repair any damage which Landlord is required to repair
under Article Eight (Damage or Destruction). In addition, Landlord may require
Tenant to remove any alterations, additions or improvements (whether or not made
with Landlord's consent) prior to the termination of the Lease and to restore
the Demised Premises to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the termination of the Lease. In no event, however, shall Tenant remove any
of the following materials or equipment without Landlord's prior written
consent; any power wiring or power panels; lighting or lighting fixtures; wall
coverings; drapes, blinds or other window coverings; carpets or other floor
coverings; heaters, air conditioners or any other heating or air conditioning
equipment; fencing or security gates; or other similar building operating
equipment and decorations.
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01. Notice. If the building or other improvements situated on the
Demised Premises should be damaged or destroyed by fire, tornado or other
casualty, Tenant shall immediately give written notice thereof to the Landlord.
8.02. Partial Damage. If the building or other improvements situated on
the Demised Premises are damaged by fire, tornado, or other casualty but not to
such an extent that rebuilding or repairs cannot reasonably be completed within
ninety (90) days from the date Landlord receives written notification by Tenant
of the happening of the damage, this Lease shall not terminate, but Landlord
shall, at its sole cost and risk, proceed forthwith and use reasonable diligence
to rebuild or repair such building and other improvements on the Demised
Premises (other than leasehold improvements made by Tenant or any assignee,
subtenant or other occupant of the Demised Premises) to substantially the
condition in which they existed prior to such damage within said ninety (90)
days, provided, however, if the casualty occurs during the final eighteen (18)
months of the Lease Term, Landlord shall not be required to rebuild or repair
such damage unless Tenant shall exercise its renewal option (if any is contained
herein) within fifteen (15) days after the date of receipt by Landlord of the
notification of the occurrence of the damage. If Tenant does not elect to
exercise its renewal option or if there is no renewal option contained herein or
previously unexercised at such time, this Lease shall terminate at the option of
Landlord and the Rent shall be abated for the unexpired portion of this Lease,
effective from the date of actual receipt by Landlord of the written
notification of the damage. If the building and other improvements are to be
rebuilt or repaired and are untenantable in whole or in part following such
damage, the monthly installments of Rent payable hereunder during the period in
which they are untenantable shall be adjusted equitably. Landlord will give
written notice of whether Landlord intends to repair or rebuild the Premises
within forty-five (45) days.
Page 4
8.03 Substantial or Total Destruction. If the building or other
improvements situated on the Demised Premises are substantially or totally
destroyed by fire, tornado, or other casualty, or so damaged that rebuilding or
repairs cannot reasonably be completed within ninety (90) days from the date
Landlord receives written notification by Tenant of the happening of the damage,
this Lease shall terminate at the option of either Landlord or Tenant and
monthly installments of Rent shall be abated for the unexpired portion of this
Lease, effective from the date of receipt by Landlord or Tenant or such written
notification. If this Lease is not terminated, the building and the improvements
shall be rebuilt or repaired and monthly installments of Rent abated to the
extent provided under Section 8.02.
ARTICLE NINE: CONDEMNATION
If, during the term of this Lease or any extension or renewal thereof, all
or a substantial part of the Demised Premises are taken for any public or
quasi-public use under any governmental Law, ordinance or regulation or by right
or eminent domain, or are sold to the condemning authority under threat of
condemnation, this Lease shall terminate and the monthly installments of Rent
shall be abated during the unexpired portion of this Lease, effective from the
date of taking of the Demised Premises by the condemning authority. If less than
a substantial part of the Demised Premises is taken for public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or is sold to the condemning authority under threat of condemnation,
Landlord, at its option, may by written notice terminate this Lease or shall
forthwith at its sole expense restore and reconstruct the buildings and
improvements (other than leasehold improvements made by Tenant or any assignee,
subtenant or other occupant of the Demised Premises) situated on the Demised
Premises in order to make the same reasonably tenantable and suitable for the
use for which the Demised Premises is leased as defined in Section 6.01. The
monthly installments of Base Rent payable hereunder during the unexpired portion
of this Lease shall be adjusted equitably. Landlord and Tenant shall each be
entitled to receive and retain such separate award, and portions of lump sum
awards as may be allocated to their respective interests in any condemnation
proceedings. The termination of this Lease shall not affect the rights of the
respective parties to such awards.
ARTICLE TEN: ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord not to be
unreasonable withheld, assign this Lease or sublet the Demised Premises or any
portion thereof. Any assignment or subletting shall be expressly subject to all
terms and provisions of this Lease, including, the provisions of Section 6.01
pertaining to the use of the Demised Premises. In the event of any assignment or
subletting, Tenant shall remain fully liable for the full performance of all
Tenant's obligations under this Lease. Tenant shall not assign its rights
hereunder or sublet the Demised Premises without first obtaining a written
agreement from the assignee or sublessee whereby the assignee or sublessee
agrees to assume the obligations of Tenant hereunder and to be bound by the
terms of this Lease. No such assignment or subletting shall constitute a
novation. In the event of the occurrence of an event of default while the
Demised Premises is assigned or sublet, Landlord, in addition to any other
remedies provided herein or by law, may at Landlords option, collect directly
from such assignee or subtenant all rents becoming due under such assignment or
subletting and apply such rent against any sums due to Landlord hereunder. No
direct collection by Landlord from any such assignee or subtenant shall release
Tenant from the performance of its obligations hereunder.
ARTICLE ELEVEN: DEFAULT AND REMEDIES
11.01. Default. Each of the following events shall be an event of default
under this Lease:
A. Failure of Tenant to pay any installment of the Rent or other sum
payable to Landlord hereunder on the date that same is due and such
failure shall continue for a period of ten (10) days;
B. Failure of Tenant to comply with any term, condition or covenant
of this Lease, other than the payment of Base Rent or other sum of money,
and such failure shall not be cured within thirty (30) days after written
notice thereof to Tenant;
C. Tenant or any guarantor of Tenant's obligations hereunder shall
generally fail to pay its debts as they become due or shall admit in
writing its inability so pay its debts, or shall make a general assignment
for the benefit of creditors;
D. Tenant or any guarantor of Tenant's obligations hereunder shall
commence any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it or
its debts under any law relating to bankruptcy, insolvency, reorganization
or relief of debtors, or seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial
part of its property;
E. Any case, proceeding or other action against Tenant or any
guarantor of Tenant's obligations hereunder shall be commenced seeking to
have an order for relief entered against it as debtor, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property, and Tenant (i) fails to obtain a
dismissal of such case, proceeding, or other action within ninety (90)
days of its commencement; or (ii) converts the case from one chapter of
the Federal Bankruptcy Code to another chapter; or (iii) is the subject of
an order of relief which is not fully stayed within thirty (30) business
days after the entry thereof; and
F. Abandonment by Tenant of substantial portion of the Demised
Premises or cessation of the use of the Demised Premises for the purpose
leased, or any other legal purpose.
11.02. Remedies. Upon the occurrence of any of the events of default
listed in Section 11.01, Landlord shall have the option to pursue any one or
more of the following remedies without any prior notice or demand whatsoever:
A. Terminate this Lease, in which event Tenant shall immediately
surrender the Demised Premises to Landlord. If Tenant fails to so
surrender the Demised Premises, Landlord may, without prejudice to any
other remedy which it may have for possession of the Demised Premises or
arrearages in Rent, enter upon and take possession of the Demised Premises
and expel or remove Tenant and any other person who may be occupying the
Demised Premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim for damages therefor. Tenant shall pay
to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability to relet
the Demised Premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the Demised Premises, by force
if necessary, without terminating this Lease and without being liable for
prosecution or for any claim for damages therefor, and expel or remove
Tenant and any other person who may be occupying the Demised Premises or
any part thereof. Landlord may relet the Demised Premises and receive the
rent therefor. Tenant agrees to pay to Landlord monthly or on demand from
time to time any deficiency that may arise by reason of any such
reletting. In determining the amount of such deficiency, the professional
service fees, reasonable attorneys' fees, remodeling expenses and other
costs of reletting shall be subtracted from the amount of rent received
under such reletting.
C. Enter upon the Demised Premises, by force if necessary, without
terminating this Lease and without being liable for prosecution or for any
claim for damages therefor, and do whatever Tenant is obligated to do
under the terms of this Lease. Tenant agrees to pay Landlord on demand for
expenses which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease, together with interest thereon at
the rate of twelve percent (l2%) per annum from the date expended until
paid. Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by negligence of Landlord or otherwise.
D. In addition to the foregoing remedies, Landlord shall have the
right to change or modify the locks on the Demised Premises in the event
Tenant fails to pay the monthly installment of Rent when due & such
failure continues for 15 days. Landlord shall not be obligated to provide
another key to Tenant or allow Tenant to regain entry to the Demises
Premises unless and until Tenant pays Landlord all Rent which is
delinquent. Tenant agrees that Landlord shall not be liable for any
damages resulting to the Tenant from the lockout. At such time that
Landlord changes or modified the lock, Landlord shall post a "Notice of
Change of Locks" on the front of the Demised Premises. Such Notice shall
state the following:
(1) That Tenant's monthly installment of Rent is delinquent,
and therefore, under authority of Section 11.02D of Tenant's Lease,
the Landlord has exercised its contractual right to change or modify
Tenant's door lock;
(2) That the Notice has been posted on the Tenant's front door
by a representative of Landlord and that Tenant should make
arrangements to pay the delinquent installment of Rent when Tenant
picks up the key; and
Page 5
(3) That the failure of the Tenant to comply with the
provisions of the Lease and the Notice and/or tampering with or
changing the door lock(s) by Tenant may subject the Tenant to legal
liability.
E. No re-entry or taking possession of the Demised Premises by
Landlord shall be construed as an election to terminate this Lease, unless
a written notice of such intention is given to Tenant. Notwithstanding any
such reletting or re-entry or taking possession, Landlord may, at any time
thereafter, elect to terminate this Lease for a previous default. Pursuit
of any of the foregoing remedies shall not preclude pursuit of any of the
other remedies provided by law, nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any monthly installment of
Rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants
herein contained. Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not, be deemed or
construed to constitute a waiver of any other violation or default. The
loss or damage that Landlord may suffer by reason of termination of this
Lease or the deficiency from any reletting as provided for above shall
include the expense of repossession and any repairs or remodeling
undertaken by Landlord following possession. Should Landlord terminate
this Lease at any time for any default, in addition to any other remedy
Landlord may have, Landlord may recover from Tenant all damages Landlord
may incur by reason of such default, including the cost of recovering the
Demised Premises and the cost of the rental then remaining unpaid.
11.03. Notice of Default. Tenant shall give written notice of any failure
by Landlord to perform any of its obligations under this Lease to Landlord and
to any ground lessor, mortgagee or beneficiary under any deed of trust
encumbering the Demised Premises whose name and address have been furnished to
Tenant in writing. Landlord shall not be in default under this Lease unless
Landlord (or such ground lessor, mortgagee or beneficiary) fails to cure such
nonperformance within thirty (30) days after receipt of Tenant's notice.
However, if such nonperformance reasonably requires more than thirty (30) days
to cure, Landlord shall not be in default if such cure is commenced within such
30-day period and thereafter diligently pursued to completion.
11.04. Limitation of Landlord's Liability. As used in this Lease, the term
"Landlord" means only the current owner or owners of the fee title to the
Demised Premises or the leasehold estate under a ground lease of the Demised
Premises at the time in question. Each Landlord is obligated to perform the
obligations of Landlord under this Lease only during the time such Landlord owns
such interest or title. Any Landlord who transfers its title or interest is
relieved of all liability with respect to the obligations of Landlord under this
Lease accruing on or after the date of transfer. However, each Landlord shall
deliver to its transferee the Security Deposit held by Landlord if such Security
Deposit has not then been applied under the terms of 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 project and the Property
ARTICLE TWELVE: LANDLORD'S CONTRACTUAL LIEN
ARTICLE THIRTEEN: PROTECTION OF LENDERS
13.01. Subordination. Landlord shall have the right to subordinate this
Lease to any future ground Lease, deed of trust or mortgage encumbering the
Demised Premises, and advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever made
or recorded. Landlord's right to obtain such a future subordination is subject
to Landlord's providing Tenant with a written Subordination, Nondisturbance and
Attornment Agreement from any such ground lessor, beneficiary or mortgagee
wherein Tenant's right to peaceable possession of the Demised Premises during
the Lease Term shall not be disturbed if Tenant pays the Rent and performs all
of Tenant's obligations under this Lease and is not otherwise in default. If any
ground lessor, beneficiary, or mortgagee elects to have this Lease superior to
the lien of its ground lease, deed of trust or mortgage and gives written notice
thereof to Tenant, this Lease shall be deemed superior to such ground lease,
deed of trust or mortgage whether this Lease is dated prior or subsequent so the
date of said ground lease, deed of trust or mortgage or the date of recording
thereof. Tenant's rights under this Lease, unless specifically modified at the
time this Lease is executed, are subordinated to any existing ground lease, deed
of trust or mortgage encumbering the Demised Premises.
13.02. Attornment. If Landlord's interest in the Demised Premises is
transferred voluntarily or involuntarily to any ground lessor, beneficiary under
a deed of trust, mortgagee or purchaser at a foreclosure sale, Tenant shall
attorn to the transferee of or successor to Landlord's interest in the Demised
Premises and recognize such transferee or successor as Landlord under this
Lease. Tenant waives the protection of any statute or rule of law which gives or
purports to give Tenant any right to terminate this Lease or surrender
possession of the Demised Premises upon the transfer of Landlord's interest.
13.03. Signing of Documents. Tenant shall sign and deliver any instruments
or documents necessary or appropriate to evidence any such attornment or
subordination or agreement to do so. If Tenant fails to do so within thirty (30)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
13.04. Estoppel Certificate.
A. Upon Landlords written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying; (i) that none of
the terms or provisions of this Lease have been changed (or if they have
been changed, stating how they have been changed); (ii) that this Lease
has not been canceled or terminated; (iii) the last date of payment of the
Base Rent and other charges and the time period covered by such payment;
and (iv) that Landlord is not in default under this Lease (or, if Landlord
is claimed to be in default, stating why). Tenant shall deliver such
statement to Landlord within ten (10) days after Landlord's request. Any
such statement by Tenant may be furnished by Landlord to any prospective
purchaser or lender of the Demised Premises. Such purchaser or lender may
rely conclusively upon such statement as true and correct.
B. If Tenant does not deliver such statement to Landlord within such
10-day period, Landlord, and any prospective purchaser or lender, may
conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been canceled or
terminated except as otherwise represented by Landlord; (iii) that not
more than one monthly installment of Base Rent or other charges have been
paid in advance; and (iv) that Landlord is not in default under the Lease.
In such event, Tenant shall be estopped from denying the truth of such
facts.
Page 6
ARTICLE FOURTEEN: PROFESSIONAL SERVICE FEES
14.01. Amount and Manner of Payment of Service Fees. Fees due to the
Principal Broker shall be calculated and paid in accordance with Article 1.11 as
follows:
A. Landlord agrees to pay to the Principal Broker a fee for
negotiating this Lease equal to the percentage stated in Section 1.11B of
each monthly Rent payment at the time such payment is due.
B. Landlord agrees so pay to the Principal Broker a fee for
negotiating this Lease equal to the percentage stated in Section 1.11B of
the total Rent to become due to Landlord during the term of this Lease.
Said fees shall be payable to the Principal Broker on the date of the
execution of this Lease.
14.02. Intentionally omitted.
14.03. Intentionally omitted.
14.04. Intentionally omitted.
14.05. Intentionally omitted.
14.06. Intentionally omitted.
14.07. Intentionally omitted.
ARTICLE FIFTEEN: ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
15.01. Tenant's Compliance with Environmental Laws. Tenant, at Tenant's
expense, shall comply with all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state, county and municipal authorities
pertaining to Tenant's use of the Property and with the recorded covenants,
conditions and restrictions, regardless of when they become effective,
including, without limitation, all applicable federal, state and local laws,
regulations or ordinances pertaining to air and water quality, Hazardous
Material (as defined hereinafter), waste disposal, air emissions and other
environmental matters, all zoning and other land use matters, and with any
direction of any public officer or officers, pursuant to law, which shall impose
any duty upon Landlord or Tenant with respect to the use or occupation of the
Property.
15.02. Tenant's Indemnification. Tenant shall not cause or permit any
hazardous material to be brought upon, kept or used in or about the Property by
Tenant, its agents, employees, contractors or invitees without the prior written
consent of Landlord. If Tenant breaches the obligations stated in the preceding
Section or sentence, or if the presence of Hazardous Material on the Property
caused or permitted by Tenant results in contamination of the Property or any
other property, or if contamination of the Property or any other property by
Hazardous Material otherwise occurs for which Tenant is legally liable to
Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and
hold Landlord harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses (including, without limitation, diminution
in value of the Property, damages for the loss or restriction on use of rentable
or unusable space or of any amenity or appurtenance of the Property, damages
arising from any adverse impact on marketing of building space or land area, and
sums paid in settlement of claims, attorneys fees, consultant fees and expert
fees) which arise during or after the Lease Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial work, removal or restoration work required
by any federal, state or local government agency or political subdivision
because of Hazardous Material present in the soil or ground water on or under
the Property. Without limiting the foregoing, if the presence of any Hazardous
Material on the Property or any other property caused or permitted by Tenant
results in any contamination of the Property, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Property to the
condition existing prior to the introduction of any such Hazardous Material to
the Property, provided that Landlord's approval of such actions shall first be
obtained. The foregoing indemnity shall survive the expiration or earlier
termination of this Lease.
15.03. Intentionally omitted.
15.04. Intentionally omitted.
Page 7
indemnification provided by this Article 15.04 shall specifically cover costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial work, removal or restoration work required by any federal,
state or local governmental agency or political subdivision because of the
presence or suspected presence of Hazardous Material in the soil or groundwater
on or under the Property, unless the Hazardous Material is released by Tenant or
is present solely as a result of the negligence or willful conduct of Tenant,
its officers, employees, or agents.
15.05. Definitions. For purposes of this Article 15, the term "Hazardous
Material" shall mean any pollutant, toxic substance, hazardous waste, hazardous
material, hazardous substance, or oil as defined in or pursuant to the Resource
Conservation and Recovery Act, as amended, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, the Federal Clean Water
Act, as amended, or any other federal, state or local environmental law,
regulation, ordinance, rule, or bylaw, whether existing as of the date hereof,
previously enforced or subsequently enacted.
15.06. Survival. The indemnities contained in this Article 15 shall
survive the expiration or earlier termination of this Lease.
15.07. Intentionally omitted.
ARTICLE SIXTEEN: MISCELLANEOUS
16.01. Forces Majeure. In the event performance by Landlord of any term,
condition or covenant in this Lease is delayed or prevented by any Act of God,
strike, lockout, shortage of material or labor, restriction by any governmental
authority, civil riot, flood, or any other cause not within the control of
Landlord, the period for performance of such term, condition or covenant shall
be extended for a period equal to the period Landlord is so delayed or hindered.
16.02. Interpretation. The captions of the Articles or Sections of this
Lease are to assist the parties in reading this Lease and are not a part of the
terms or provisions of this Lease. Whenever required by the context of this
Lease, the singular shall include the plural and the plural shall include the
singular. For convenience, each party hereto is referred to in the neuter
gender, but the masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenants agents, employees, contractors,
invitees, successors or others using the Demised Premises with Tenant's
expressed or implied permission.
16.03. Waivers. All waivers must be in writing and signed by the waiving
party. Landlords failure to enforce any provisions of this Lease or its
acceptance of late installments of Rent shall not be a waiver and shall not
estop Landlord from enforcing that provision or any other provision of this
Lease in the future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may, with or
without notice to Tenant, negotiate, cash, or endorse such check without being
bound to the conditions of such statement.
16.04. Severability. A determination by a court of competent jurisdiction
that any provision of this Lease or any part thereof is invalid or unenforceable
shall not cancel or invalidate the remainder of such provision or this Lease,
which shall remain in full force and effect.
16.05. Joins and Several Liability. All parties signing this Lease as
Tenant shall be jointly and severally liable for all obligations of Tenant.
16.06. Incorporation of Prior Agreements; Modifications. This Lease is the
only agreement between the parties pertaining to the lease of the Demised
Premises and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
16.07. Notices. All notices required or permitted under this Lease shall
be in writing and shall be personally delivered or shall be deemed to be
delivered, whether actually received or not, when deposited in the United States
mail, postage pre-paid, registered or certified mail, return receipt requested,
addressed as stated herein. Notices to Tenant shall be delivered to the address
specified in Section 1.03 above, except that, upon Tenant's taking possession of
the Demised Premises, the Demised Premises shall be Tenant's address for notice
purposes. Notices to any ether party hereto shall be delivered to the address
specified in Article One as the address for such party. Any party hereto may
change its notice address upon written notice to the other parties.
16.08. Attorneys' Fees. If on account of any breach or default by any
party hereto in its obligations to any other party hereto (including but not
limited to the Principal Broker), it shall become necessary for the
nondefaulting party to employ an attorney to enforce or defend any of its rights
or remedies hereunder, the defaulting party agrees to pay the nondefaulting
party its reasonable attorneys' fees, whether or not suit is instituted in
connection therewith.
16.09. Venue. All obligations hereunder, including but not limited to the
payment of fees so the Principal Broker, shall be performable and payable in the
county in which the Property is located.
16.10. Governing Law. The laws of the State of Texas shall govern this
Lease.
16.11. Survival. All obligations of any party hereto not fulfilled at the
expiration or the earlier termination of this Lease shall survive such
expiration or earlier termination as continuing obligations of such party.
16.12. Binding Effect. This Lease shall inure to the benefit of and be
binding upon each of the parties hereto and their respective heirs,
representatives, successors and assigns; provided, however, Landlord shall have
no obligation to Tenants successors or assigns unless the rights or interests of
such successors or assigns are acquired in accordance with the terms of this
Lease.
16.13. Execution as Offer. The execution of this Lease by the first party
to do so constitutes an offer to lease the Demised Premises. Unless within the
number of days stated in Section 1.14 above after the date of its execution by
the first party to do so, this Lease is signed by the other party and a fully
executed copy is delivered to the first party, such offer shall be automatically
withdrawn and terminated.
Page 8
ARTICLE SEVENTEEN: ADDITIONAL PROVISIONS
Additional provisions may be set forth in the blank space below, and/or an
Exhibit or Exhibits may be attached hereto which shall be made a part of this
Lease for all purposes.
17.1 Landlord agrees to warrant the major components of HVAC units for a period
of one (1) year. Tenant must show Landlord evidence of a regular HVAC
maintenance program.
17.2 Tenant shall have a cancellation option after three years of the lease, if
a six month rent penalty is paid and a six month notice is given to
Landlord. After four (4) years, a three month rent penalty, with a six (6)
month notice.
EFFECTIVE as of the date stated in Section 1.01 above.
BROKERS: REPUBLIC MANAGEMENT, INC.
/s/ Republic Management
---------------------------------------------
Principal Broker, Member of the
Greater Dallas Association of REALTORS', Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name:
---------------------------------------
Address:
------------------------------------
---------------------------------------------
---------------------------------------------
Telephone: ----------------------------------
License No.: --------------------------------
▇▇▇▇▇▇ Property Advisors
---------------------------------------------
Cooperating Broker
By:
------------------------------------------
Name:
---------------------------------------
Address:
------------------------------------
---------------------------------------------
---------------------------------------------
Telephone: ----------------------------------
License No.: --------------------------------
LANDLORD: GREENVIEW LIMITED PARTNERSHIP
/s/ Devcor Equities INC. G.P.
---------------------------------------------
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Exec-Vice President
--------------------------------------
Date of Execution by Landlord: July 14, 1994
--------------
TENANT:
Network-1 Software & Technology, Inc.
---------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Title: President
--------------------------------------
Date of Execution by Tenant:
----------------
********************************************************************************
[For voluntary use only by members of the
Greater Dallas Association of REALTORS', Inc.]
o / o Greenview
Grand Prairie, Texas
Exhibit "A"
[Floor plan graphic omitted]
Exhibit "B"
Greenview Tech
▇▇▇ ▇, ▇▇▇ ▇
▇▇▇▇ ▇▇▇▇, #▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ 75050
Tarrant County
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT C
RENEWAL OPTIONS
PROPERTY ADDRESS OR DESCRIPTION: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATE OF LEASE 6/29/94
1. Option(s) to Extend Term
Landlord hereby grants to Tenant One options(s) [the "Options(s)"] to
extend the Lease Terms for additional term(s) of 5 years, each [the
"Extension(s)"], on the same terms, conditions and covenants set forth in the
Lease Agreement, except as provided below. Each Option, shall be exercised only
by written notice delivered to the Landlord at least One Hundred Eighty Days
(180) days before the expiration of the Lease Term or the preceding Extension of
the Lease Term. If Tenant fails to deliver Landlord written notice of the
exercise of an Option within the prescribed time period, such Option and any
succeeding Options shall lapse, and there will be no further right to extend the
Lease Term, Each Option shall be exercisable by Tenant on the express condition
that at the time of the exercise, and at all times prior to the commencement of
such Extension(s), Tenant shall not be in default under any of the provisions of
this Lease. The foregoing Option(s) are personal to Tenant and may not be
exercised by any assignee or subtenant.
2. Calculation of Rent
The Base Rent during the Extension(s) shall be determined by one of the
following methods: [INDICATED BY CHECKING The APPROPRIATE BOX UPON THE EXECUTION
OF THE LEASE AGREEMENT]
|_| (a) Consumer Price Index Adjustment
|X| (b) Fair Rental Value Adjustment
|_| (c) Fixed Rental Adjustment
A. Consumer Price Index Adjustment
The monthly rent during the particular Extension shall be determined by
multiplying the monthly installment of Base Rent during the Lease Term by a
fraction determined as follows:
(1) The numerator shall be the latest Index.
(2) The denominator shill be the initial Index.
If such computation would reduce the rent for the particular Extension,
it shall be disregarded, and the rent during the immediately preceding period
shall apply instead.
The Index, as defined herein, shall mean the Consumer Price Index for
Urban Consumers (all items), Dallas/Fort Worth, Texas, area (1984 = 100)
published by the United States Department of Labor, Bureau of Labor Statistics.
The initial Index shall mean the Index published for the nearest calendar
month preceding the commencement date of the Lease Term. The latest Index shall
mean the Index published for the nearest calendar month preceding the first day
of the Extension.
If a base year other than 1984 is adopted, the Index shall be converted in
accordance with the appropriate conversion factor. If the Index is discontinued
or revised, such other Index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would have been
obtained it if had not been discontinued or revised.
B. Fair Rental Value Adjustment
The Base Rent shall be increased on the first day of the particular
Extension to the "Fair Rental Value" of the Demised Premises, determined in the
following manner:
(1) If the Landlord and Tenant have not been able to agree on the
Fair Rental Value Adjustment prior to the date the option is required to
be exercised, the rent for the Extension shall be determined as follows:
Within fifteen (15) days following the exercise of the option, Landlord
and Tenant shall endeavor in good faith to agree upon a single appraiser.
If Landlord and Tenant are unable to agree upon a single appraiser within
said fifteen (15) day period, each shall then, by written notice to the
other, given within ten (10) days after said fifteen(15) day period,
appoint one appraiser. Within ten (10) days after the two appraisers are
appointed, they shall appoint a third appraiser. If either Landlord or
Tenant fails to appoint its appraiser within the prescribed time period
the single appraiser appointed shall determine the Fair Rental Value of
the Demised Premises. Each party shall bear the cost of the appraiser
appointed by it and the parties shall share equally the cost of the third
appraiser.
(2) The "Fair Rental Value" of the Demised Premises shall mean the
price that a ready and willing tenant would pay as of the commencement of
the Extension as monthly rent to a ready and willing landlord of demised
premises comparable to the Demised Premises if such property were exposed
for lease on the open market for a reasonable period of time and taking
into account all of the purposes for which such property may be used and
not just the use proposed to be made of the Demised Premises by Tenant.
The Fair Rental Value of the Demised Premises shall be the average of the
two of the three appraisals which are closest in amount, and the third
appraisal shall be disregarded. In no event shall the rent be reduced by
reason of such computation. If the Fair Rental Value is not determined
prior to the commencement of the Extension, then Tenant shall continue to
pay to Landlord the rent applicable to the Demised Premises immediately
prior to such Extension until the Fair Rental Value is determined, and
when it is determined, Tenant shall pay to Landlord within ten (10) days
after receipt of such notice the difference between the rent actually paid
by Tenant to Landlord and the new rent determined hereunder. Tenant will
give written approval of Fair Rental Value within fifteen (15) days of
their notice of its determination, no notice of approval will allow tenant
not to extend the lease.
C. Fixed Adjustments
The Base Rent shall be increased to the following amounts on the following
dates:
Date Amount
------------------------------------ ---------------------------------
------------------------------------ ---------------------------------
------------------------------------ ---------------------------------
------------------------------------ ---------------------------------
------------------------------------ ---------------------------------
INITIALS: LANDLORD: JPD INITIALS: TENANT: RR
----------- ----
----------- ----
GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT E
GUARANTEE
PROPERTY ADDRESS OR DESCRIPTION: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATE OF LEASE: 6/29/94
1. In order to induce Greenview Limited Partnership ("Landlord") to
execute the Lease to which this Guarantee is attached (the "Lease") with
Network-1 Software & Technology, Inc ("Tenant") for the Demised Premises in ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ of Texas, the undersigned (whether one or
more than one) has guaranteed and by this instrument does hereby guarantee the
full payment and performance of all liabilities, obligations, and duties
(including, but not limited to, payment of Rent) imposed upon Tenant under the
terms of the Lease, as if the undersigned has executed the Lease as Tenant
thereunder.
2. The undersigned hereby waives notice of acceptance of this guarantee
and all other notices in connection herewith or in connection with the
liabilities, obligations, and duties guaranteed hereby, including notices of
default by Tenant under the Lease, and waives diligence, presentment, and suit
on the part of Landlord in the enforcement of any liability, obligation, or duty
guaranteed hereby.
3. The undersigned further agrees that Landlord shall not be first
required to enforce against Tenant or any other person any liability,
obligation, or duty guaranteed hereby before seeking enforcement thereof against
the undersigned. Suit may be brought and maintained against the undersigned by
Landlord to enforce any liability, obligation, or duly guaranteed hereby without
joinder of Tenant or any other person. The liability of the undersigned shall
not be affected by any indulgence, compromise, settlement, or variation of terms
which may be extended to Tenant by Landlord or agreed upon by Landlord and
Tenant, and shall not be impaired, modified, changed, released, or limited in
any manner whatsoever by any impairment, modification, change, release, or
limitation of the liability of Tenant or its estate in bankruptcy, or of any
remedy for the enforcement thereof, resulting from the operation of any present
or future provision of the United States Bankruptcy Code, or any similar law or
statute of the United States or any state thereof. Landlord and Tenant, without
notice to or consent by the undersigned, may at any time or times enter into
such extensions, amendments, assignments, subleases, or other covenants
respecting the Lease as they may deem appropriate; and the undersigned shall not
be released thereby, but shall continue to be fully liable for the payment and
performance of all liabilities, obligations and duties of Tenant under the Lease
as so extended, amended, assigned or otherwise, modified.
4. It is understood that other agreements similar to this guarantee may,
at Landlord's sole option and discretion, be executed by other persons with
respect to the Lease. This guarantee shall be cumulative of any such agreements
and the liabilities and obligations of the undersigned hereunder shall in no
event be affected or diminished by reason of such other agreements. Moreover, in
the event Landlord obtains another signature of more than one guarantor on this
page or by obtaining additional guarantee agreements, or both, the undersigned
agrees that Landlord, in Landlord's sole discretion, may (i) bring suit against
all guarantors of the Lease, jointly and severally, or against any one or more
of them: (ii) compound or settle with any one or more of the guarantors for such
consideration as Landlord may deem proper; and (iii) release one or more of the
guarantors from liability. The undersigned further agrees that no such action
shall impair the rights of Landlord to enforce the Lease against any remaining
guarantor or guarantors, including the undersigned.
5. If the party executing this guarantee is a corporation, then the
undersigned officer personally represents and warrants that the Board of
Directors of such corporation, in a duly held meeting, has determined that this
guarantee may reasonably be expected to benefit the corporation.
6. The undersigned agrees that if Landlord shall employ an attorney to
present, enforce, or defend any of Landlord's rights or remedies hereunder, the
undersigned shall pay the reasonable attorney's fees incurred by Landlord in
such connection.
7. This agreement shall be binding upon the undersigned and the
successors, heirs, executors, and administrators of the undersigned, and shall
inure to the benefit of Landlord and Landlord's heirs, executors,
administrators, successors and assigns.
8. See Below
EXECUTED this ______ day of __________________________________ 19__, to be
effective the same day as the effective day of the Lease.
GUARANTOR(S)
WITNESS or ATTEST Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
(printed or typed)
------------------------------------- By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature of Witness ------------------------------------
(Signature)
Printed Name of Witness:
------------- Title: Executive V.P
Address of Witness: ---------------------------------
------------------ Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
------------------------------------- -------------------------------
------------------------------------- ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------
(If the Signatory is signing as officer
of a corporate Guarantor, specify the
title of the Signatory in such
corporation.)
8. Notwithstanding anything herein to the contrary, the maximum
liability of Guarantor hereunder shall not exceed the following
amount: Year 1 - $15,000.00, Year 2 -- $10,000.00, Year 3 --
$5,000,000. This guarantee shall terminate on August 1, 1997.
INITIALS: LANDLORD: JPD INITIALS: TENANT:
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT E
GUARANTEE
PROPERTY ADDRESS OR DESCRIPTION: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATE OF LEASE: 6/29/94
1. In order to induce Greenview Limited Partnership ("Landlord") to
execute the Lease to which this Guarantee is attached (the "Lease") with
Network-1 Software & Technology, Inc ("Tenant") for the Demised Premises in ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ of Texas, the undersigned (whether one or
more than one) has guaranteed and by this instrument does hereby guarantee the
full payment and performance of all liabilities, obligations, and duties
(including, but not limited to, payment of Rent) imposed upon Tenant under the
terms of the Lease, as if the undersigned has executed the Lease as Tenant
thereunder.
2. The undersigned hereby waives notice of acceptance of this guarantee
and all other notices in connection herewith or in connection with the
liabilities, obligations, and duties guaranteed hereby, including notices of
default by Tenant under the Lease, and waives diligence, presentment, and suit
on the part of Landlord in the enforcement of any liability, obligation, or duty
guaranteed hereby.
3. The undersigned further agrees that Landlord shall not be first
required to enforce against Tenant or any other person any liability,
obligation, or duty guaranteed hereby before seeking enforcement thereof against
the undersigned. Suit may be brought and maintained against the undersigned by
Landlord to enforce any liability, obligation, or duly guaranteed hereby without
joinder of Tenant or any other person. The liability of the undersigned shall
not be affected by any indulgence, compromise, settlement, or variation of terms
which may be extended to Tenant by Landlord or agreed upon by Landlord and
Tenant, and shall not be impaired, modified, changed, released, or limited in
any manner whatsoever by any impairment, modification, change, release, or
limitation of the liability of Tenant or its estate in bankruptcy, or of any
remedy for the enforcement thereof, resulting from the operation of any present
or future provision of the United States Bankruptcy Code, or any similar law or
statute of the United States or any state thereof. Landlord and Tenant, without
notice to or consent by the undersigned, may at any time or times enter into
such extensions, amendments, assignments, subleases, or other covenants
respecting the Lease as they may deem appropriate; and the undersigned shall not
be released thereby, but shall continue to be fully liable for the payment and
performance of all liabilities, obligations and duties of Tenant under the Lease
as so extended, amended, assigned or otherwise, modified.
4. It is understood that other agreements similar to this guarantee may,
at Landlord's sole option and discretion, be executed by other persons with
respect to the Lease. This guarantee shall be cumulative of any such agreements
and the liabilities and obligations of the undersigned hereunder shall in no
event be affected or diminished by reason of such other agreements. Moreover, in
the event Landlord obtains another signature of more than one guarantor on this
page or by obtaining additional guarantee agreements, or both, the undersigned
agrees that Landlord, in Landlord's sole discretion, may (i) bring suit against
all guarantors of the Lease, jointly and severally, or against any one or more
of them: (ii) compound or settle with any one or more of the guarantors for such
consideration as Landlord may deem proper; and (iii) release one or more of the
guarantors from liability. The undersigned further agrees that no such action
shall impair the rights of Landlord to enforce the Lease against any remaining
guarantor or guarantors, including the undersigned.
5. If the party executing this guarantee is a corporation, then the
undersigned officer personally represents and warrants that the Board of
Directors of such corporation, in a duly held meeting, has determined that this
guarantee may reasonably be expected to benefit the corporation.
6. The undersigned agrees that if Landlord shall employ an attorney to
present, enforce, or defend any of Landlord's rights or remedies hereunder, the
undersigned shall pay the reasonable attorney's fees incurred by Landlord in
such connection.
7. This agreement shall be binding upon the undersigned and the
successors, heirs, executors, and administrators of the undersigned, and shall
inure to the benefit of Landlord and Landlord's heirs, executors,
administrators, successors and assigns.
8. See Below
EXECUTED this ______ day of __________________________________ 19__, to be
effective the same day as the effective day of the Lease.
GUARANTOR(S)
WITNESS or ATTEST Name: ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
(printed or typed)
------------------------------------- By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Signature of Witness ------------------------------------
(Signature)
Printed Name of Witness:
------------- Title: President
Address of Witness: ---------------------------------
------------------ Address: 33-20 28th St.
------------------------------------- -------------------------------
------------------------------------- ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------
(if the Signatory signing as officer of
a corporate Guarantor, specify the title
of the Signatory in such corporation.)
8. Notwithstanding anything herein to the contrary, the maximum
liability of Guarantor hereunder shall not exceed the following
amount: Year 1 - $15,000.00, Year 2 -- $10,000.00, Year 3 --
$5,00o,00~ This guarantee shall terminate on August 1, 1997,
INITIALS: LANDLORD: JPD INITIALS: TENANT: RR
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GREATER DALLAS ASSOCIATION OF REALTORS(R), INC.
EXHIBIT H.
CONSTRUCTION OF IMPROVEMENTS
PROPERTY ADDRESS OR DESCRIPTION: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATE OF LEASE: 6/29/94
1. Construction of Improvements:
A. Landlord agrees to construct (or complete) a building and other
improvements upon the Demised Premises in accordance with Paragraph 6
being prepared forthwith by Landlord and delivered to Tenant. Upon
approval by Tenant, two or more sets or said Plans and Specifications
shall be signed by both parties, with one signed set retained by Tenant.
Changes to said Paragraph 6 thereafter shall be made only by written
addenda signed by both parties.
2. Completion Date:
A. It is estimated by Landlord that the building and other
Improvements shall be completed by July 30, 1994.
B. Landlord shill notify Tenant in writing when construction has
been completed. Tenant shall thereupon inspect the building and other
improvements, and if same have in fact been completed in accordance with
the Plans and Specifications, the Lease Term shall begin upon the date of
completion with Base Rent due and payable as provided in Article Three of
the Lease.
C. If the building and other improvements have not in fact been
completed in accordance with the Paragraph 6, written notification of the
items deemed incomplete shall be given by Tenant to Landlord immediately
following inspection. Landlord shall forthwith proceed to finish the
incomplete items, and the lease term shall begin upon the date that such
items are in fact complete.
D. Completion, as used herein, shall mean substantial completion.
Substantial completion shall mean at such time as the Landlord completes
the requirements that allow Tenant to obtain a Certificate of Occupancy
issued by the local municipal authorities whose jurisdiction includes the
Demised Premises, and is the stage when the construction is sufficiently
complete in accordance with the Plans and Specifications that the Tenant
can occupy or utilize the Demised Premises for its intended use, except
for minor "punch list" items remaining to be completed.
3. Letter of Acceptance: Tenant agrees to execute and deliver to Landlord,
with a copy to the Principal Broker, a Letter of Acceptance, addressed to
Landlord and signed by Tenant (or its authorized representative) acknowledging
that construction has been completed in accordance with the Paragraph 6
and acknowledging the Commencement Date of the Lease Term.
4. Taking of Possession: The taking of possession of the Demised Premises
along with the letter in Paragraph 3 by Tenant shall be deemed conclusively to
be acknowledgement by Tenant that construction has been completed in accordance
with Paragraph 6 (except for latent defects) and that the Lease Term has begun
as of the later of August 1, 1994 or Landlord's completion of items in Paragraph
6.
5. Failure to Complete: In the event that the building and other
improvements have not been completed in accordance with the Plans and
Specifications by August 15, 1994, or by such date as extended by application of
Section 16.01, Tenant shall have the right and option to terminate this Lease by
giving written notice of Tenant's intention to terminate as of a certain date
not less than fifteen (15) days prior to said certain date. If the building and
other improvements have not been completed by said certain date, the lease
shall, at the option of Tenant, terminate with no further liability of one party
to the other, and Tenant's payments shall be promptly returned.
6. Landlord agrees at his sole cost and expense to perform the following
work by August 15th:
A.) Construct 130 linear feet of vinyl sheetrock wall, with [ILLEGIBLE]
walls up to the deck
B.) Install new glass front door, same as existing
C.) Divide electrical service and HVAC units; i.e. install separate
meters or sub-meters for electrical & gas.
D.) Construct a handicap restroom next to existing
E.) Items A & D above to be substantially similar to that currently
on Premises.
INITIALS: LANDLORD: JPD INITIALS: TENANT: RR
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