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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.
4. RENT .
(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.
Office Building Lease
"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.
Office Building Lease
Page 2
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 property
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