EXHIBIT 10.1
M.D. PROPERTIES
Business Property
Lease
THIS LEASE is
entered into this 7th day of
January, 2004 , between
M.D. Properties, L.L.C. , Landlord, and
Gabriel Technologies, LLC,
Tenant.
PREMISES
1.
Landlord leases to Tenant at
4538 South 140th Street, 68137, Omaha, Douglas
County. Nebraska. (the “Premises”), containing
approximately 10,356 square feet of’ area as
shown on Exhibit “A”, on the following terms and
condition.
TERM
2.
This lease shall be for a term of
62 months , beginning on the
first day of February, 2004
and the work as hereinafter defined have been
completed to Tenant’s reasonable satisfaction by January 31,
2004, subject to Landlord’s completion of punch list items
described in Exhibit “C”, and ending on the
28th day of
February, 2009 , unless terminated earlier as
provided in this Lease.
If for any
reason the Premises are delivered to Tenant on
any date before or after the term
commencement date, rental for the period between the date of
possession and the term commencement date shall be adjusted on a
pro rata basis. Such earlier or later taking of possession shall
not change the termination date of this Lease. This Lease shall not
be void or voidable in the event of a late delivery by Landlord,
nor shall Landlord be liable to Tenant for any resulting loss or
damage.
USE OF
PREMISES
3.
The Premises are leased to Tenant,
and are to be used by Tenant, for the purpose of office,
service and warehouse incidental to Tenant’s business which
is the selling, fulfilling and keying of specia1ized locking
systems and for no other purpose. Tenant
agrees to use the Premises in such a manner
as to not interfere with the rights of other tenants in the Real
Estate, to comply with all applicable governmental laws,
ordinances, and regulations in connection with its use of the
Premises, to keep the Premises in a clean and sanitary condition,
and to use all reasonable precaution to prevent waste, damage, or
injury to the Premises.
RENT
4.(a)
Base Rent.
The total Base Rent under this
Lease is Two Hundred Sixty Nine
Thousand, Two Hundred Fifty Six and
00/100 Dollars ($269,256.00) . Tenant
agrees to pay rent to Landlord at 10612 Bondesson Circle,
Omaha, NE 68122 , or at any other place Landlord may
designate in writing, in lawful money of the United States, in
monthly installments in advance, on the first (lay of each month,
in the following chart, which includes additional rental
costs:
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$ 25,000.00
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62
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8.00%
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($493.61)
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5-year
term
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Square
footage
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10,356
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(Estimates)
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Total
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# Mo.
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Base PSF
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TI Amount PSF
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CAM PSF
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Total Rent PSF
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Monthly
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Base Rent Only
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2/1/04 thru
3/31/04
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2
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$
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-
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$
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0.57
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$
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1.25
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$
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1.62
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$
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1,572.36
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$
-
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4/1/04 thru
3/31/06
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24
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$
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5.00
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$
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0.57
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$
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1.25
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$
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6.82
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$
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5,887.36
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$
103,560.00
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4/1/06 thru
3/31/08
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24
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$
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5.25
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$
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0.57
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$
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1.25
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$
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7.07
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$
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6,103.11
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$
108,738.00
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4/1/08 thru
3/31/09
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12
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$
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5.50
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$
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0.57
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$
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1.25
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$
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7.32
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$
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6,318.86
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$
56,958.00
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Totals
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62
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$
269,256.00
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(b)
Operating
Expenses . In
addition to the Base Rent, Tenant shall pay a pro rata share of
operating expenses of the real estate of which the Premises are
part, parking areas, and grounds (“Real Estate”).
“Operating expenses” shall mean all costs of’
maintaining and operating the Real Estate, including but not
limited to all taxes and special assessments levied upon the Real
Estate, fixtures, and personal property used by Landlord at. the
Real Estate, all insurance costs, all costs of labor, material and
supplies for maintenance, repair, replacement, and operation of the
Real Estate, including but not limited to line painting, lighting,
snow removal, landscaping, cleaning, depreciation of machinery and
equipment used in such maintenance, repair
and replacement, and management costs, including building
superintendents. Operating Expenses shall not: include property
additions and capital improvements to the real estate, alterations
made for specific tenants, depreciation of the Real Estate, debt:
service on long-term debt: or income taxes paid by
Landlord.
“Tenant’s pro rata share”
shall mean the percentage (determined by dividing the square feet
of the Premises as shown in Paragraph 1, by the square feet of
building area of the Real Estate, as defined by the American
National Standard published by Building Owners and Managers
Associations which at the date hereof is agreed to be 29,708 square
feet.
Tenant’s
pro rata share of the Operating Expenses shall be determined on an
annual basis for each calendar year ending on December 31 and shall
be pro rated for the number of months Tenant occupied the Premises
if Tenant did not occupy the Premises the full year. Tenant shall
pay $1,078.75 Dollars per month, including
February and March, 2004, during the period
of waived base rental, on the first of each month in
advance with rent for Tenant’s estimated pro
rata share of the Operating Expenses,
Landlord may change this amount at any time upon written notice to
Tenant. At the end of each year, an analysis of the total
year’s Operating Expenses shall be presented to Tenant and
Tenant shall pay the amount, if any, by which the Tenant’s
pro rata share of the Operating Expenses for the year exceeded the
amount of the Operating Expenses paid by Tenant. Tenant shall pay
any such excess charge to the Landlord within thirty (30) days
after receiving the statement. In the event this Lease terminates
at any time other than the last day of the year the excess
Operating Expenses shall be determined as of the date of
termination. Upon termination of this Lease, any overpayment of
Operating Expenses by Tenant shall be applied to the amounts due
Landlord from Tenant under this Lease and any remaining overpayment
shall be refunded to Tenant. Tenant may have the right, to audit
expenses.
(c)
Payment
of Rent.
Tenant agrees to pay the Base Rent as and when due, together with
Tenant’s share of the Operating Expenses and all other’
amounts required to be paid by Tenant under this Lease. In the
event of nonpayment of any amounts due under this Lease, whether or
not designated as rent, Landlord shall have all the rights and
remedies provided in this Lease or by law for failure to pay
rent.
(d)
Late Charge
.
If the Tenant fails to pay the Base
Rent together with the Tenant’s share of the Operating
Expenses and all other amounts required to be paid by Tenant under
this Lease, on or before the third day after such payments are due,
Tenant agrees to pay Landlord a late charge of 5% of the
base rental amount for each month the payment: is
late.
(e)
Security
Deposit . As partial
consideration for the execution of the Lease, the Tenant has
delivered to Landlord the sum of $4,315.00 as a
Security Deposit. The Security Deposit will be returned to Tenant
at the expiration of this Lease if Tenant has fully complied with
all covenants and conditions of this
Lease.
SERVICES
5.
Tenant shall pay when due, all
water, gas, electricity, sewer use fees, incurred at or chargeable
to the Premises.
ASSIGNMENT
OR
SUBLEASE
6.
Tenant shall not assign this Lease
or sublet the whole or any part of the Premises, transfer this
Lease by operation of law or otherwise, or permit any other person
except agents and employees of Tenant to occupy the Premises, or
any part thereof without the prior written consent of Landlord.
Landlord may consider the following in determining whether to
withhold consent: (a) financial responsibility of the new Tenant,
(b) identity and business character of the new tenant, (c) nature
and legality of the proposed use of the Premises.
Landlord shall
have the right to assign its interest, under this Lease or the rent
reserved hereunder.
TENANT’S
IMPROVEMENTS
7.
Tenant shall have the right to
place partitions and fixtures and make improvements or other
alterations in the interior of the Premises at its own expense.
Prior to commencing any such work, Tenant shall first obtain the
written consent of Landlord for the proposed work. Landlord may, as
a condition to its consent, require that the work be done by
Landlord’s own employees and/or under Landlord’s
supervision, but at the expense of Tenant,
and that Tenant give sufficient security that the Premises will be
completed free and clear of liens and in a manner satisfactory to
Landlord. Any new Tenant improvements done by Landlord will include
a one year warranty for material and labor. Upon termination of
this Lease, at Landlord’s option, Tenant will repair and
restore the Premises to its former condition, at Tenant’s
expense, or any such improvements, additions, or alterations
installed or made by Tenant, except Tenant’s trade fixtures,
shall become part of the Premises and the property of the Landlord.
Tenant may remove its trade fixtures at the termination of this
Lease provided Tenant is not then in default and provided further
that Tenant repairs any damage caused by such removal.
REPAIRS
8.
Landlord agrees to maintain in good
condition, and repair as necessary the foundations, exterior walls
and the roof of the Premises.
Tenant agrees
that it will make, at its own cost. and expense, all repairs and
replacements to the Premises not required to be made by Landlord,
including, but not limited to, all interior and exterior doors,
door frames, windows, plate glass, and the heating, air
conditioning, plumbing and electrical systems servicing the
Premises. Tenant agrees to do all redecorating, remodeling,
alteration, and painting required by it during the term of the
Lease at its own cost and expense, to pay
for any repairs to the Premises or the Real Estate made necessary
by any negligence or carelessness of Tenant or any of its agents or
employees or persons permitted on the Real Estate by Tenant, and to
maintain the Premises in a safe, clean,
neat, arid sanitary condition. Tenant shall be entitled to no
compensation for inconvenience, injury, or loss of business arising
‘from the making of any repairs by Landlord, Tenant or other
tenants to the Premises or the Real Estate.
CONDITION OF
PREMISES
9.
Except as provided herein, Tenant
agrees that no promises, representations, statements, or warranties
have been made on behalf of Landlord to Tenant respecting the
condition of the Premises, or the manner of operating the Real
Estate, or the making of any repairs to the Premises. A walk thru
will be made before taking possession of the Premises. Tenant will
acknowledge that the Premises were in good and satisfactory
condition when possession was taken, except for punch list items,
which will be noted. Tenant shall, at the termination of this
Lease, by lapse of time or otherwise, remove all of Tenant’s
property and surrender the Premises to Landlord in as good
condition as when Tenant took possession, normal wear excepted.
Additionally, Landlord will construct or install in the Premises
the improvements according to the work letter attached hereto,
marked Exhibit “B” and “C”, and by this
reference made a part hereof.
PERSONAL PROPERTY AT RISK OF
TENANT
10.
All personal property in the
Premises shall be at the risk of Tenant only. Landlord shall not be
liable for any damage to any property of Tenant or its agents or
employees in the Premises caused by steam, electricity sewage, gas
or odors, or from water, rain, or snow which may leak into, issue
or flow into the Premises from any part of the Real
Estate, or from any other place, on for any
damage done to Tenant’s property in moving same to or from
the Real Estate or the Premises. Tenant shall give Landlord, or its
agents, prompt written notice of any damage to or defects in water
pipes, gas or warming or cooling apparatus in the
Premises.
LANDLORD’S RESERVED
RIGHTS
11.
Without notice to Tenant, without
liability to Tenant for damage or injury to properly, person or
business, and without effecting an eviction
of Tenant or a disturbance of Tenant’s use or possession or
giving rise to any claim for setoff or abatement of rent, Landlord
shall have the right to:
(a)
Change the name or street address
of the Real Estate.
(b)
Install and maintain signs on the
Real Estate.
(c)
Have access to all mail chutes
according to the rules of the United States Post Office
Department.
(d)
At reasonable times, to decorate,
and to make, at its own expense, repairs, alterations, additions,
and improvements, structural or otherwise, in or to the Premises,
the Real Estate, or part thereof, and any adjacent building, land,
street or alley, and during such operations to take into and
through the Premises or any part of the
Real Estate all materials required, and to temporarily close or
suspend operation of entrances, doors, corridors, elevators, or
other facilities to do so; provided that Landlord shall not
interfere with Tenant’s business operations.
(e)
Possess passkeys to the Premises
for emergency access during non-normal business hours.
(f)
Show the Premises to prospective
tenants at reasonable times, during the last six (6) months of the
Lease.
(g)
Take any and all reasonable
measures, including inspections or the making of repairs,
alterations, and additions and improvements to the Premises or to
the Real Estate, which Landlord deems necessary or’ desirable
for the safety, protection, operation, or preservation of’
the Premises or the Real Estate.
(h)
Approve all sources furnishing
signs, painting, and/on lettering to the Premises, and approve all
signs on the Premises prior to installation thereof.
(i)
Landlord will warrant HVAC systems
for the first 12 months of the initial lease term.
INSURANCE
12.
Tenant shall not use or occupy the
Premises or any part thereof in any manner which could invalidate
any policies of insurance now or hereafter placed on Real Estate or
increase the risks covered by insurance on the Real Estate or
necessitate additional insurance premiums or policies of insurance,
even if such use may be in furtherance of Tenant’s business
purposes. In the event any policies of insurance are invalidated by
acts or omissions of Tenant, Landlord shall have the right to
terminate this Lease or,
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