EXHIBIT 10.7
OFFICE BUILDING
LEASE
THIS LEASE is
entered into this
27 day of
May , of 20
05 , between SMWK LLC
Landlord, and Resilent, LLC dba Digilent Defense Tenant.
1.
PREMISES . Landlord leases to Tenant suite number(s)
200 on the 2
nd floor of the building known as
Millenium Plaza , located at
15858 West Dodge Road (the
“Building”) as shown on Exhibit “
A ” (the “Premises”), containing
approximately 4,000 square feet of area, on the following terms and
conditions.
2.
TERM
. This lease shall be for a term of
Ten (10) years , beginning on the
1 st day of August ,
2005 , and ending on the
31 st day of July ,
2015 , unless terminated earlier as
provided in this Lease.
If for any reason the Premises is 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. Landlord will
deliver space ninety (90) days after permits are granted. If
Landlord delivers space later than 90 days after permits are
granted than tenant shall be entitled to half months base rent on
the first month of occupancy.
3.
USE OF
PREMISES . The
Premises are leased to Tenant, and are to be used by Tenant, for
the purposes of Digital Defense’s world wide sales,
engineering & research laboratories and administrative offices,
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 Building, to comply with all applicable governmental laws,
ordinances, and regulations in connection with its use of the
Premises, including without limitation all environmental laws, 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.
(a)
Base Rent
. The total Base Rent under this
Lease is Eight Hundred One Thousand Two Hundred
Twenty -Two and 60/100 Dollars
( $801,222.60 ) . Tenant agrees to
pay rent to Landlord at 15858 West Dodge Road. Suite
300 , Omaha, NE 68118 , 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 day
of each month, as follows:
For the period from August 1, 2005 to July 31,
2006, to $5,983.33 per month
For the period from August 1, 2006 to July 31,
2007, to $5,983.33 per month
For the period from August 1, 2007 to July 31,
2008, to $6,162.83 per month
For the period from August 1, 2008 to July 31,
2009, to $6,347.71 per month
For the period from August 1, 2009 to July 31,
2010, to $6,538.14 per month
For the period from August 1, 2010 to July 31,
2011, to $6,734.28 per month
For the period from August 1, 2011 to July 31,
2012, to $6,936.31 per month
For the period from August 1, 2012 to July 3!,
2013, to $7,144.40 per month
For the period from August 1, 2013 to July 31,
2014, to $7,358.73 per month
For the period from August 1, 2014 to July 31,
2015 , to $7,579.49 per month
(b)
Additional Base
Rent . Landlord
agrees to defer Operating Expenses as set forth in section 4 (d)
for the first year of the Lease. It is further understood and
agreed that the amount of this deferral of Operating Expenses
currently represents $33,080.00 ($8.27 x 4,000 sq. ft. or
$33,080.00) for the first year and that interest shall be included
by the Tenant on the balance due until such time as the deferral
has been paid in full. Such payment shall begin on the third year
and continue through the fifth year of the Lease at which time
Tenant agrees that any sums due from said deferral shall be paid in
full.
In the third, fourth & fifth years, the
deferred Operating Expenses not paid by the Tenant shall be due and
owing monthly, beginning and running concurrently, with the Base
Rent payments. The deferred Operating Expenses (taxes, insurance,
and Common Area Maintenance commonly referred to as triple net
expenses) shall be as follows: In years three (3), four (4) and
five (5) of the Lease, the above stated
deferred Operating Expenses to be paid are $1,169.41 per month and
are due on the same date as the Base
Rent
(c)
Additional
Charges . Landlord
does hereby assign in consideration of this contract and other
valuable consideration, two (2) enclosed underground parking stalls
in the amount of $80.00 per month. Landlord will allow interest
charges for the first two (2) years of deferred Operating Expenses
of the first year of the lease August 1, 2005 to July 31, 2006 to
be applied to the charges for two (2) underground parking stalls
immediately referred to in this paragraph. Such assignment of
charges may be made for the amount of such charges that are due and
owing at the beginning of each month.
Landlord agrees to provide use of the conference room at a price of
$150.00 per occurrence.
(d)
Rent
Adjustment . In
addition to the Base Rent, Tenant shall pay a pro rata share of all
the Operating Expenses of operating the Building, parking areas,
and grounds over the annual Operating Expenses for the Base Year as
hereinafter defined (“Rent Adjustment”).
“Operating Expenses” shall mean all costs of
maintaining and operating the Building, the related parking areas,
and grounds, (the ‘Real Estate’) including but not
limited to the costs of labor, material and supplies for
maintenance, repair, and such operation, all landscaping, cleaning,
and other services, all costs of heating, air conditioning, water,
sewer, gas, electricity, and other utilities, all insurance costs,
all taxes and special assessments, and management costs, including
building superintendents. Operating Expenses shall not include
property additions and improvements to the Real Estate which by
generally accepted accounting practice are treated as capital
items, alterations made for specific tenants, depreciation, debt
service on long term debt, or income taxes paid by the
Landlord.
“Base Year” shall mean
the calendar year in which this Lease
commences. “Base Year” Operating Expenses are estimated
to be $8.27 per square foot or $2,756.67. At the end of the year
Landlord will provide Tenant with an expense statement and will
reconcile these actual expenses with the paid operation
expenses.
“Tenant’s pro rata share” shall
mean the percentage determined by dividing the square feet of the
Premises as shown
Paragraph 1 by
the square feet of the Building which at the date hereof is agreed
to be 46,043 square feet or 8.69%.
(e)
Computation of Rent
Adjustment . Prior to
each calendar year commencing after the Base Year Landlord shall
estimate the amount of Rent Adjustment due for such year and Tenant
shall pay Landlord one-twelfth of such estimate on the first day of
each month during such year. Such estimate may be revised by
Landlord whenever it obtains information relevant to making such
estimate more accurate. After the end of each such calendar year,
Landlord shall deliver to Tenant a statement setting forth the
amount of Rent Adjustment that Tenant has paid and the amount that
remains payable for such year. Within thirty days after receipt of
such statement, Tenant shall pay to Landlord the amount of Rent
Adjustment due for such calendar year, less any payments of Rent
Adjustment already made by Tenant for such year. If Tenant’s
payments of estimated Rent Adjustment exceed the amount due
Landlord for that calendar year, Landlord shall, provided Tenant is
not then in default under this Lease, apply the excess as a credit
against Tenant’s other obligations under this Lease or
promptly refund such excess to Tenant if the term of this Lease has
already expired, in either case without interest to
Tenant.
(f)
Payment of
Rent . Tenant agrees
to pay the Base Rent as and when due,
together with all adjustments 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.
(g)
Late Charge
. If the Tenant falls 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 tenth day after such payments are due
Tenant agrees to pay Landlord a late charge of
$600.00 .
(h)
Security
Deposit . As partial
consideration for the execution of this Lease, the Tenant has
delivered to Landlord for Landlord’s use and possession the
sum of $5,983.33.00 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.
5.
SERVICES . Landlord shall furnish
nothing to the Premises during normal
business hours, and at such other times as Landlord may deem
necessary or desirable, in the manner customary to the Building.
Landlord shall have the right to discontinue any service during any
period for which rent is not promptly paid by Tenant.
Landlord shall
not be liable for damages, nor shall the rental be abated, for
failure to furnish, or delay in furnishing, any service when
failure to furnish, or delay in furnishing, is occasioned in whole
or in part by needful repairs, renewals, or improvements, or by any
strike or labor controversy, or by any accident or casualty
whatsoever, or by any unauthorized act or default of any employee
of Landlord, or for any other cause or causes beyond the control of
Landlord. Electricity furnished under the Lease is for the normal
operation of a business office only, and Landlord shall be entitled
to make additional charges for excess electricity requirements,
such as non-standard computers, other special business machines and
those that require greater than a standard 1l0v duplex
outlet.
6.
ASSIGNMENT OR
SUBLEASE . 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, which consent may be withheld or conditioned
at Landlord’s sole discretion. Landlord may consider a
request and may consider any factor it deems relevant in
determining whether to withhold consent
including, but not limited to, the following: (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 hereunder.
Tenant shall, with any request for
Landlord’s consent on an assignment or sublease, pay to
Landlord a fee in the sum of Five Hundred and no/100 Dollars
($500.00) for review and processing of such request and Landlord
shall not be obligated to review such request prior to
Landlord’s receipt of such fee.
7.
TENANT’S
IMPROVEMENTS .
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 or through another contractor so
long as Landlord approves contractor, 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. 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. Landlord agrees to provide $l20.000.00
of building allowances for said space .
8.
REPAIRS . Landlord agrees to make all necessary repairs
to the exterior walls, exterior doors, windows, and corridors of
the Building and to keep the Building in a clean, neat, and
attractive condition. Landlord agrees to maintain the Building
equipment and mechanical systems in good repair, but Landlord shall
not be liable or responsible to Tenant for breakdowns or temporary
interruptions in service.
Tenant agrees that it will make all repairs and
replacements to the Premises not required to be made by Landlord,
to do all redecorating, remodeling, alterations, 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 Building by
Tenant, and to maintain the Premises in a safe, clean, neat, and
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 Building. In the event plumbing is or has been
installed in the Premises, Tenant is responsible for the repair and
maintenance of the plumbing system to the point where
Tenant’s system connects with Landlord’s system. At the
sole discretion of Landlord, Tenant may be required to install a
meter to measure such water consumption. Tenant shall have proper
insurance that insures their property and the property of others
destroyed by water damage.
9.
CONDITION OF
PREMISES . 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 Building, or the making of any repairs
to the Premises. By taking possession of the Premises, Tenant
acknowledges that the Premises were in good and satisfactory
condition when possession was taken. 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.
10.
PERSONAL PROPERTY AT RISK
OF TENANT . All
personal property in the Premises shall be at the risk of Tenant
only.
“EXCEPT AS
THE SAME MAY BE THE RESULT OF THE NEGLIGENCE OF LANDLORD, ITS
EMPLOYEES OR AGENTS
Landlord shall
not be liable^ for any damage to any prop
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