OFFICE BUILDING LEASE
EXHIBIT
10.7
THIS
LEASE is entered into this 27
day of May ,
of
2005,
between SMWK
LLC
Landlord, and Resilent,
LLC dba Digilent Defense Tenant.
1. PREMISES.
Landlord leases to Tenant suite number(s) 200
on
the 2nd
floor of the building known as Millenium
Plaza,
located at 00000
Xxxx Xxxxx Xxxx
(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 1st
day of August,
2005,
and ending on the 31st
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 00000
Xxxx Xxxxx Xxxx. Xxxxx 000,
Xxxxx,
XX 00000,
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 property of Tenant or its agents
or
employees in the Premises caused by any reason whatsoever, including, without
limitation, fire, theft, 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 Building, or from any other place, or for any damage done to
Tenant’s property in moving same to or from the Building 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.
11. LANDLORD’S
RESERVED RIGHTS.
Without notice to Tenant, without liability to Tenant for damage or injury
to
property, 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 set
off or abatement of rent, Landlord shall have the right to:
|
(a)
|
Change
the name or Street address of the Building, Landlord must give
tenant six
(6) months notice of change of name or address.
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(b)
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Install
and maintain signs on the Building.
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(c)
|
Have
access to all mall chutes according to the rules of the United
States Post
Office Department.
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(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 Building, 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 Building all materials
required,
and to temporarily close or suspend operation of entrances, doors,
corridors, elevators, or other facilities to do so.
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(e)
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Possess
passkeys to the Premises.
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(f)
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Show
the Premises to prospective tenants at reasonable
times.
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(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 Building, which Landlord deems necessary or desirable for the
safety,
protection, operation, or preservation of the Premises or the
Building.
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(h)
|
Approve
all sources furnishing signs, painting, and/or lettering to the
Premises,
and approve all signs on the Premises prior to installation thereof
which
approval may be withheld or conditioned in Landlord’s sole
discretion.
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(i)
|
Establish
rules and regulations for the safety, care, order, operation, appearance,
and cleanliness of the Building and to make modifications
thereto.
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(j)
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Landlord
warrants that the use of computer laboratory work of this tenant,
digital
defense is within provision 11 of this
contract
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12. INSURANCE.
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
the
Building or increase the risks covered by insurance on the Building 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, at Landlord’s option, to charge
Tenant for extra insurance premiums required on the Building on account of
the
increased risk caused by Tenant’s use and occupancy of the Premises. Each party
hereby waives all claims for recovery from the other for any loss or damage
to
any of its property insured under valid and collectible insurance policies
to
the extent of any recovery collectible under such policies; provided that this
waiver shall apply only when permitted by the applicable policy of
insurance.
13. INDEMNITY.
Tenant shall indemnify, hold harmless, and defend Landlord from and against,
and
Landlord shall not be liable to Tenant on account of, any and all costs,
expenses, liabilities, losses, damages, suits, actions, fines, penalties,
demands, or claims of any kind, including reasonable attorney’s fees, asserted
by or on behalf of any person, entity, or governmental authority arising out
of
or in any way connected with either (a) a failure by Tenant to perform any
of
the agreements, terms, or conditions of this Lease required to be performed
by
Tenant; (b) a failure by Tenant to comply with any laws, statutes, ordinances,
regulations, or orders of any governmental authority; or (c) any accident,
death, or personal injury, or damage to, or loss or theft of property which
shall occur on or about the Premises, or the Building, except as the same may
be
the result of the negligence of Landlord, its employees, or agents. Landlord
does not assume the negligence of the tenant or damages flowing there from.
Landlord is solely responsible for Landlord’s own negligence and damages flowing
there from.
14.
LIABILITY
INSURANCE.
Tenant agrees to procure and maintain continuously during the entire term of
this Lease, a policy or policies of commercial general liability insurance
from
a company or companies acceptable to Landlord, at Tenant’s own cost and expense,
insuring Landlord and Tenant from all claims, demands or actions; such policy
or
policies shall in addition to insuring Tenant protect and name the Landlord
(SMWK
LLC),
as additional insured, and shall provide coverage in a combined single limit
per
occurrence of at least $2,000,000
for claims, demands or actions for bodily injury, death or property damage
made
by or on behalf of any person or persons, firm or corporation arising from,
related to, or connected with the conduct and operation of Tenant’s business in
the Premises, or arising out of and connected with the use and occupancy of
the
Real Estate by the Tenant. All such insurance shall provide that Landlord shall
be given a minimum of ten (10) days notice by the insurance company prior to
cancellation, termination or change of such insurance. Tenant shall provide
Landlord with copies of the policies or certificates evidencing that such
insurance in full force and effect and stating the term and provisions thereof.
If Tenant falls to comply with such requirements for insurance, Landlord may,
but shall not be obligated to, obtain such insurance and keep the same in
effect, and Tenant agrees to pay Landlord, upon demand, the premium cost
thereof.
15. DAMAGE
BY FIRE OR OTHER CASUALTY.
If, during the term of this Lease, the Premises shall be so damaged by fire
or
any other cause except Tenant’s negligent or intentional act so as
to render
the Premises untenantable, the rent shall be abated while the Premises remain
untenantable; and in the event of such damage, Landlord shall elect whether
to
repair the Premises or to cancel this Lease, and shall notify Tenant in writing
of its election within sixty (60) days after such damage. In the event Landlord
elects to repair the Premises, the work or repair shall begin promptly and
shall
be carried on without unnecessary delay. In the event Landlord elects not to
repair the Premises, the Lease shall be deemed canceled as of the date of the
damage. Such damage shall not extend the Lease term.
16. CONDEMNATION.
If the whole or any part of the Premises shall be taken by public authority
under the power of eminent domain, then the term of this Lease shall cease
on
that portion of the Premises so taken, from the date of possession, and the
rent
shall be paid to that date, with a proportionate refund by Landlord to Tenant
of
such rent as may have been paid by Tenant in advance. If the portion of the
Premises taken is such that it prevents the practical use of the Premises for
Tenant’s purposes, then Tenant shall have the right either (a) to terminate this
Lease by giving written notice of such termination to Landlord not later than
thirty (30) days after the taking, or (b) to continue in possession of the
remainder of the Premises, except that the rent shall be reduced in proportion
to the area of the Premises taken. In the event of any taking or condemnation
of
the Premises, in whole or in part, the entire resulting award of damages shall
be the exclusive property of Landlord, including all damages awarded as
compensation for diminution in value to the leasehold, without any deduction
for
the value of any unexpired term of this Lease, or for any other estate or
interest in the Premises now or hereafter vested in Tenant.
17. DEFAULT
OR BREACH.
Each
of the following events shall constitute a default or a breach of this Lease
by
Tenant, if Tenant is in default of lease Landlord must give Tenant ten (10)
days
written notice of such default:
(a) If
Tenant fails to pay Landlord any rent or other payments when due
hereunder;
(b) If
Tenant vacates or abandons the Premises;
(c) If
Tenant files a petition in bankruptcy or insolvency or for reorganization under
any bankruptcy act, or voluntarily takes advantage of any such act by answer
or
otherwise, or makes an assignment for the benefit of creditors;
(d) If
involuntary proceedings under any bankruptcy or insolvency act shall be
instituted against Tenant, or if a receiver or trustee shall be appointed of
all
or substantially all of the property of Tenant, and such proceedings shall
not
be dismissed or the receivership or trusteeship vacated within thirty (30)
days
after the institution or appointment; or
(e) If
Tenant falls to perform or comply with any other term or condition of this
Lease, or any of the rules and regulations established by Landlord, and if
such
nonperformance shall continue for a period of ten (10) days after notice thereof
by Landlord to Tenant, time being of the essence.
18. EFFECT
OF DEFAULT.
In
the event of any default or breach hereunder, in addition to any other right
or
remedy available to Landlord, either at law or in equity, Landlord may exert
any
one or more of the following rights:
(a) Landlord
may re-enter the Premises immediately and remove the property and personnel
of
Tenant, and shall have the right, but not the obligation, to store such property
in a public warehouse or at a place selected by Landlord, at the risk and
expense of Tenant, Landlord must give notice to Tenant ten (10) days prior
to
removal of property and personnel.
(b) Landlord
may retake the Premises and may terminate this Lease by giving written notice
of
termination to Tenant. Without such notice, Landlord’s retaking will not
terminate the Lease. On termination, Landlord may recover from Tenant all
damages proximately resulting from the breach, including the cost of recovering
the Premises and the difference between the rent due for the balance of the
Lease term as though the Lease had not been terminated, and the fair market
rental value of the Premises, which sum shall be immediately due Landlord from
Tenant.
(c) Landlord
may relet the Premises or any part thereof for any term without terminating
this
Lease, at such rent and on such terms as it may, choose. Landlord may make
alterations and repairs to the Premises. In addition to Tenant’s liability to
Landlord for breach of this Lease, Tenant
shall be liable for all expenses of the reletting, for any alterations and
repairs made
for the rent due for the balance of the Lease term, which sum shall be
immediately due Landlord from Tenant. The amount due Landlord will be reduced
by
the net rent received by Landlord during the remaining term of this Lease from
reletting the Premises, r any part thereof. If during the remaining term of
this
Lease Landlord receives more than the amount due Landlord under this
sub-paragraph, the Landlord shall pay such excess to Tenant, but only to the
extent Tenant has actually made payment pursuant to this
sub-paragraph.
19. SURRENDER-HOLDING
OVER.
Tenant shall, upon termination of this Lease, whether by lapse of time or
otherwise, peaceably and promptly surrender the Premises to Landlord. If Tenant
remains in possession after the termination of this Lease, without a written
lease duly executed by the parties, Tenant shall be deemed a trespasser. If
Tenant pays, and Landlord accepts, rent for a period after termination of this
Lease, Tenant shall be deemed to be occupying the Premises only as a tenant
from
month to month, subject to all the terms, conditions, and agreements of this
Lease, except that the rent shall be 150% times the monthly rent specified
in
the lease immediately before termination.
20. SUBORDINATION
AND ATTORNMENT.
Landlord reserves the right to place liens and encumbrances on the Premises
superior in lien and effect to this Lease. This Lease, and all rights of Tenant
hereunder, shall, at the option of Landlord, be subject and subordinate to
any
liens and encumbrances now or hereafter imposed by Landlord upon the Premises
or
the Building or any part thereof, and Tenant agrees to execute, acknowledge,
and
deliver to Landlord, upon request, any and all instruments that may be necessary
or proper to subordinate this Lease and all rights herein to any such lien
or
encumbrance as may be required by Landlord.
In
the event any proceedings are brought for the foreclosure of any mortgage on
the
Premises, Tenant will attorn to the purchaser at the foreclosure sale and
recognize such purchaser as the Landlord under this Lease. The purchaser, by
virtue of such foreclosure, shall be deemed to have assumed, as substitute
Landlord, the terms and conditions of this Lease until the resale or other
disposition of its interest. Such assumption, however, shall not be deemed
in
acknowledgment by the purchaser of the validity of any then existing claims
of
Tenant against the prior Landlord.
Tenant
agrees to execute and deliver such further assurances and other documents,
including a new lease upon the same terms and conditions contained herein,
confirming the foregoing, as such purchaser may reasonably request. Tenant
waives any right of election to terminate this Lease because of any such
foreclosure proceedings.
21. NOTICES.
Any notice or demands given hereunder shall be in writing and personally
delivered or sent by first class mail postage prepaid to Landlord at
00000
Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000
and also to Tenant at 00000
Xxxx Xxxxx Xxxx. Xxxxx 000. Xxxxx, XX 00000
or
at such other address as either party may from time to time designate in
writing. Each such notice shall be deemed to have been given at the time it
shall be personally delivered to such address or deposited in the United States
mail in the manner prescribed herein.
22. COMPLIANCE
WITH ADA.
Tenant
shall be responsible for all costs of complying with the Americans with
Disabilities Act (ADA) and all similar laws and regulations within the Premises,
including the removal of barriers which do not necessitate the removal or
modification of load-bearing walls.
23. SUBSTITUTION
OF OTHER PREMISES.
Landlord may upon thirty days notice to Tenant substitute for the Premises
other
premises in the Building (the “New Premises”), provided that the New Premises
shall be reasonably usable for Tenant’s business hereunder; and, if Tenant is
already in occupancy of the Premises, then in addition Landlord shall pay the
reasonable expenses of moving Tenant from the Premises to the New Premises
and
for improving the New Premises so that they are substantially similar to the
Premises. This section only applies to forces of nature that may leave tenants
suite in a condition that makes it unable to conduct business.
24. MISCELLANEOUS.
(a) Binding
on Assigns.
All terms, conditions, and agreements of this Lease shall be binding upon,
apply, and inure to the benefit of the parties hereto and their respective
heirs, representatives, successors, and permitted assigns.
(b) Amendment
in Writing.
This Lease contains the entire agreement between the parties and may be amended
only by subsequent written agreement.
(c) Waiver
- None.
The failure of Landlord
to insist upon strict performance of any of the terms,
conditions and agreements of this Lease shall not be deemed a waiver of any
of
its rights or remedies hereunder and shall not be deemed a waiver of any
subsequent breach or default of any of such terms, conditions, and agreements.
The doing of anything by Landlord which Landlord is not obligated to do
hereunder shall not impose any future obligation on Landlord nor otherwise
amend
any provisions of this Lease.
(d) No
Surrender.
No surrender of the Premises by Tenant shall be effected by Landlord’s
acceptance of the keys to the Premises or of the rent due hereunder, or by
any
other means whatsoever, without Landlord’s written acknowledgment that such
acceptance constitutes a surrender.
(e) Captions.
The captions of the various paragraphs in this Lease are for convenience only
and do no define, limit, describe, or construe the contents of such
paragraphs.
(f) Applicable
Law.
This Lease shall be governed by and construed in accordance with the laws of
the
State of Nebraska.
(g) Partial
Invalidity.
If any provision of this Lease is invalid or unenforceable to any extent, then
that provision and the remainder of this Lease shall continue in effect and
be
enforceable to the fullest extent permitted by law.
25. BROKERS.
The brokers involved in this transaction are:
x
Agent
for
Xxxx Xxxxx of Coldwell Banker Commercial World Group
Landlord
/s/
Xxxx
Xxxxx
OTHER PROVISIONS.
Any
additional provisions of this Lease shall be in writing and attached as an
addendum hereto.
Until
this Lease is executed on behalf of all parties hereto, it shall be construed
as
an offer to lease by Tenant to Landlord.
IN
WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
|
S.
Xxxxxxx Xxxxxxxx
|
Resilent,
LLC
|
|||
|
SMWK
Properties, LLC
|
Resilent,
LLC
|
|||
|
LANDLORD
|
TENANT
|
|||
|
BY:
|
/s/
S. Xxxxxxx Xxxxxxxx
|
BY:
|
/s/
Xxxxxxx X. Xxxxxx
|
|
|
PRINT/TYPE
NAME:
|
S.
Xxxxxxx Xxxxxxxx
|
PRINT/TYPE
NAME:
|
Xxxxxxx
X. Xxxxxx
|
|
|
ITS:
|
President
|
ITS:
|
CFO
|
|
STATE
OF NEBRASKA )
)ss.
COUNTY
OF XXXXXXX )
The
foregoing instrument was acknowledged by Xxxx Xxxxxx before me this 3rd day
of June,
2005.
[SEAL]
/s/
Xxxxx X.
Xxxxx
Notary
Public
My
commission expires: April
1, 2009
PERSONAL
GUARANTEE
The
undersigned hereby absolutely and unconditionally guarantee unto the Landlord
the payment of the rent and the performance of all of the covenants under the
Lease and all renewals and extensions thereof by the Tenant and hereby waive
notice of any default under the Lease and agree that this liability shall not
be
released or affected by an extension of time for payment, by any forbearance
by
the Landlord, or by any assignment or modification of this lease.
Dated
this 27
day of May,
2005.
|
BY:
|
/s/
Xxxxx Xxxxxxx
|
BY:
|
||
|
Xxxxx
Xxxxxxx
|
||||
|
Name
|
Name
|
|||
|
00000
Xxxxxxx Xx
|
||||
|
Xxxxxx
Address
|
Street
Address
|
|||
|
Elkhorn,
NE 68022
|
||||
|
City,
State, Zip
|
City,
State, Zip
|
STATE
OF NEBRASKA )
)ss.
COUNTY
OF XXXXXXX )
The
foregoing instrument was acknowledged by Xxxx Xxxxxx before me this 3rd day
of June,
2005.
[SEAL]
/s/
Xxxxx X.
Xxxxx
Notary
Public
My
commission expires: April
1, 2009
RULES
AND REGULATIONS
A. The
entrances, corridors, passages, stairways and elevators shall be under the
exclusive control of the Landlord and shall not be obstructed, or used by the
Tenant for any other purpose than ingress and egress to and from the Premises;
and the Landlord shall have the right to control ingress and egress to and
from
the Building at all times.
B. Safes,
furniture, boxes or other bulky articles shall be carried by the freight
elevator, or by the stairways, or through the windows of the Building, in such
a
manner and at such hours as may be directed by the Landlord. Safes and other
heavy articles shall be placed by the Tenant in such places only as may be
first
specified in writing by the Landlord.
C. The
Tenant, shall not place nor permit to be placed any signs, advertisements or
notices in or upon any part of the Building, and shall not place merchandise
or
show-cases in front of the Building, without the Landlord’s written consent,
which consent may be withheld or conditioned in Landlord’s sole
discretion.
D. The
Tenant shall not put up nor operate any engine, boiler, dynamo, or machinery
of
any kind, nor carry on any mechanical business in said Premises nor place any
explosive therein, nor use any kerosene or oils or burning fluids in the
Premises without first obtaining the written consent of the
Landlord.
E. If
the Tenant desires telegraphic or telephonic connections, the Landlord will
direct the electricians as to where and how the wires are to be introduced,
and
without such written directions no boring or cutting for wires will be
permitted.
F. No
person or persona shall be employed by the Tenant for the purpose of cleaning
or
of taking care of the Premises without the written consent of the Landlord.
Any
person or persons so employed by the Tenant must be subject to and under the
control and direction of the Landlord.
G. The
Landlord shall have the right to exclude or eject from the Building, animals
of
every kind, except guide dogs, bicycles, or any other wheeled vehicle except
wheelchairs, and all canvassers and other persons who conduct themselves in
such
a manner as to be, in the judgment of the Landlord, an annoyance to the tenants
or a detriment to the Building.
H. No
additional locks shall be placed upon any doors of the Premises without first
obtaining the written consent of the Landlord and the Tenant will not permit
any
duplicate keys to be made. If more than two keys for any door are desired,
the
additional number shall be paid for by the Tenant. Upon termination of this
lease the Tenant shall surrender all keys of said Premises and of the Building,
and shall give to the Landlord the combination of all locks on any vaults and
safes.
I. The
Tenant shall not allow any curtains, filing cases nor other articles to be
placed against or near the glass in the partitions between the Premises and
the
corridors of the Building, without first obtaining the written consent of the
Landlord.
J. The
Landlord shall have the right to make such other and further reasonable rules
and regulations as, in the judgment of the Landlord, may from time to time
be
needed for the safety, care and cleanliness and general appearance of the
Premises and for the preservation of good order therein.
K. Smoking
is prohibited in all areas of the Building, including the Premises, except
that
Landlord may, in its sole discretion, designate one or more areas within the
Building where smoking may be permitted.
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