Exhibit 10.11


 


LEASE


 


THIS LEASE (the “Lease”)
is made this 4th day of September, 2007 by and between GATEWAY,
INC., a Delaware corporation (hereinafter designated “Landlord”),
and MPC-PRO, LLC, a Delaware limited
liability company (hereinafter designated as “Tenant”).


 


WITNESSETH:


 


1.             DATA
SHEET.


 


This Section 1 is an integral part of this Lease and
all of the terms, dates and requirements hereof are incorporated into this
Lease in all respects. In addition to the other provisions which are elsewhere
defined in this Lease, the following terms, whenever used in this Lease, shall
have the meaning set forth in this Section 1, subject to adjustments thereto or
more detailed definitions set forth elsewhere in this Lease. If there is any
conflict between any of the Lease provisions set forth in this Section 1 and
any other provisions of this Lease, the latter shall control.


 


(a)           Premises:


 


(1)           Building:
Argentina Building


 


(2)           Suite/Floor Number: Suite 220, 300 North
Centennial Drive, North Sioux City, South Dakota 57049


 


(b)           Rentable
Square Feet of Premises: Approximately 45,552


 


(c)           Total
Gross Rentable Square Feet in Building: 214,594


 


(d)           Tenant’s
Percentage Share of Building: 21.22%


 


(e)           Lease
Commencement Date: The Acceptance Certificate Date


 


(f)            Lease
Term: Five (5) years from Lease Commencement Date


 


(g)                                 Initial Annual Base Rent: Months 1-12 $9.60 per rentable square foot (Base Rent
schedule set forth in Section 5 of this Lease).


 


(h)           Option
Term: Two (2) five (5) year option terms


 


(i)            Security
Deposit: $36,400.00


 


(j)            Tenant
Improvement Allowance: $0


 


(k)           Permitted
Uses: General office, recruiting and training purposes, and any all related and
incidental    uses.


 


2.             LEASED
PREMISES.


 


A.            In
consideration of all Tenant’s undertakings hereinafter set forth, including
payment of rent as hereinafter specified, and contingent upon the satisfaction
of all of the conditions set forth in Section 3 of this Lease (or waiver
thereof), Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the premises (the “Premises”) that are part of the Building located
at 300 North Centennial Drive in North Sioux City, South Dakota in the
suite/floor area designated in Section 1(a)(2) of the Data Sheet and as shown
outlined on the leasing plan attached hereto as Exhibit A, and containing the
approximate number of rentable square feet set forth in Section 1(b).


 


B.            During
the Term of this Lease, Tenant shall have the right to use, subject to the
terms of this Lease, the Rules and Regulations referenced in Section 16 below,
and all covenants, conditions and restrictions now or hereafter affecting the
Building, the Premises; provided, however, within five (5) days of the
Execution Date, Landlord shall deliver a copy of any such covenants, conditions
and restrictions of which Landlord has actual knowledge to Tenant. Further,
Landlord shall promptly notify Tenant in writing of any modifications to any
such covenants, conditions and restrictions of which Landlord has actual
knowledge.


 


C.            During
the Term of this Lease, Tenant shall have the right at no additional cost to
Tenant to the non-exclusive use of the existing 500 KW generators upon the
following terms and conditions: (i) in no event shall Landlord be deemed to be
making any representation and/or warranty with respect to the condition or
fitness of such generator except as set forth herein; (ii) Tenant shall be
responsible for its pro-rata cost of all maintenance and operation


 


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associated with the generator (as billed by Landlord within thirty (30)
days following the delivery of such bill, as additional rent due under this
Lease) as well as all costs associated with segregating circuits of the
existing generator, or running new feeds to appropriate distribution panels;
(iii) Tenant shall use such generator in accordance with applicable laws,
codes, ordinances and regulations; and (iv) Tenant shall obtain the prior
written consent of Landlord to any modifications, alterations, improvements or
work on such generators.


 


D.            Tenant
hereby covenants and agrees that it shall have the right to exclusive use of
the building equipment, fixtures and communication cabling located in the
Premises which do not service other premises in the Building throughout the
Lease Term at no cost or expense to Tenant. Landlord and Tenant acknowledge and
agree that Landlord is providing such property to Tenant for its use in an
as-is basis without representation or warranty of any kind whatsoever,
including the disclaimer of any warranties of merchantability, fitness for a
particular purpose or any other thing or nature whatsoever. Tenant shall be
responsible for the cost of any transportation and reconfiguration of any such
items.


 


E.             Pending
completion of fit-up for the Premises, Tenant shall have the use of temporary
space provided by Landlord under the same terms and conditions as this Lease.


 


F.             Subject
to existing rights of other Tenants, Tenant shall have a right of first refusal
to enter into a lease for the remaining approximately 63,641 square feet of
space adjacent to the Premises on the second floor of the Building on the same
terms and conditions contained in this Lease (the “Right of First Refusal”). In
the event Landlord desires to lease such additional 63,641 square feet of
space, Landlord shall, subject to existing rights of other Tenants, offer the
space to Tenant by notifying the Tenant in writing (the “Right of First Refusal
Notice”). If Tenant does not exercise its Right of First Refusal by notifying
Landlord in writing of such exercise within five (5) days after having received
the Right of First Refusal Notice, Landlord shall be free to lease the space to
any third party.


 


3.             CONDITIONS
TO CLOSING.


 


A.            Landlord’s
obligation to lease the Premises to Tenant shall be both subject to and
conditioned upon the satisfaction of all of the following conditions:


 


1.             The
Closing (as defined in the Asset Purchase Agreement) of the transaction
contemplated by the Asset Purchase Agreement among Landlord, Tenant, MPC
Corporation and Gateway Technologies, Inc. dated September 4, 2007 (the “Asset
Purchase Agreement”).


 


2.             The
termination or expiration of the right of first refusal to lease the Premises
held by Alorica, Inc. (“Alorica”) pursuant to that Lease dated August 10, 2006
by and between Gateway Inc. and Alorica Inc. (the “Alorica Lease Agreement”).


 


3.             Landlord
shall have received from Tenant the declaration in the form attached hereto as
Exhibit B specifying the information called for therein (the “Acceptance
Certificate”).


 


4.             Landlord
shall have received from Tenant $36,400.00 to be held as collateral security
for the payment of Base Rent, Additional Rent and any other sums payable by
Tenant under this Lease, and for the faithful performance by Tenant of all
other covenants, conditions and agreements of this Lease, pursuant to Section 7
of this Agreement.


 


B.            Tenant’s
obligation to lease the Premises from Landlord shall be both subject to and
conditioned upon the satisfaction of all of the following conditions:


 


1.             The
Closing (as defined in the Asset Purchase Agreement) of the transaction
contemplated by the Asset Purchase Agreement.


 


2.             The
termination or expiration of the right of first refusal to lease the Premises
held by Alorica pursuant to the Alorica Lease Agreement.


 


3.             Tenant’s
acceptance and approval of the Premises (which approval may be granted or
withheld in its sole and absolute discretion) after having completed a “walk-through”
inspection and review of the Premises.


 


4.             TERM
AND COMMENCEMENT OF TERM.


 


A.            The
term of this Lease (the “Term”) shall commence on the date (the “Lease
Commencement Date”)


 


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that the Acceptance Certificate is delivered by Tenant to Landlord (the
“Acceptance Certificate Date”), provided that all of the other conditions to
closing set forth in Section 3 have been satisfied or waived.


 


B.            The
Term shall end on the expiration of the fifth (5th) year following
the Lease Commencement Date unless the Term terminates sooner pursuant to any
other provision of this Lease or pursuant to law.


 


C.            Provided that (i) Tenant has not been in default under the
Lease, and is not then in default under this Lease  and no event or circumstance has occurred which,
with the passage of time or the giving of notice, or both, could result in such
a default, and/or (ii) Tenant has not assigned this Lease or sublet all or any
portion of the Premises, Tenant may elect to extend the Lease Term for two (2)
five (5) year renewal terms (each an “Option Term”) by giving Landlord written
notice of its desire to do so at least nine (9) months prior to the end of the
current Lease Term. In the event Tenant elects to extend the Lease Term as
herein provided, the Lease shall automatically be extended for such Option
Term, upon the same terms and conditions as provided for herein, except that
the Base Rent shall be an amount equal to ninety-five percent (95%) of the then
fair market rental value of the Premises (as determined pursuant to Exhibit E
attached hereto).


 


5.             CONDITION OF PREMISES.


 


A.            Tenant hereby acknowledges and agrees that it is
to demise the Premises in an “AS-IS” condition and Tenant’s taking possession
of the Premises shall be conclusive evidence as against Tenant that the
Premises were in good order and satisfactory condition when Tenant took
possession. No promise of Landlord to alter, remodel or improve the Premises,
and no representation respecting the condition of the Premises has been made by
Landlord to Tenant. Notwithstanding any other provision herein to the contrary,
Landlord shall be responsible for all plans, specifications and costs
associated with demising the Premises. Upon the expiration of the term hereof,
or upon any earlier termination of the term hereof or of Tenant’s right to
possession, Tenant shall surrender the Premises in at least as good condition
as at the commencement of the term of this Lease, ordinary wear and tear
excepted.


 


B.            Landlord
and Tenant acknowledge and agree that any and all alterations to be installed
by Tenant within the Premises upon the inception of the Term of this Lease
shall be subject to the approval of Landlord (which approval shall not be
unreasonably withheld, conditioned or delayed). Any and all such alterations
shall comply with all of the terms and conditions of this Lease and no approval
by Landlord shall be deemed a representation and/or warranty by Landlord as to
the sufficiency of same or the compliance of same with any and all applicable
laws, codes, rules, ordinances or regulations. Tenant shall perform any and all
such work at its sole cost and expense and in a lien-free manner. Notwithstanding
the foregoing, Tenant may install and maintain furnishings, equipment, movable
partitions, business equipment and other trade fixtures (the “Trade Fixtures”)
in the Premises, provided that the Trade Fixtures do not become an integral
part of the Premises or the Building, without Landlord’s prior consent. Tenant
shall promptly repair any damage to the Premises or the Building caused by any
installation or removal of such Trade Fixtures.


 


6.             RENT.


 


A.            Tenant
shall pay to Landlord the following rent under this Lease:


 


1.             Commencing
on the Lease Commencement Date, base rent (“Base Rent”) payable in advance in
equal monthly installments (“Monthly Base Rent”) pursuant to the schedule below.
The first installment of Monthly Base Rent shall be due and payable on the
execution of this Lease in an amount equal to a full month’s installment, and
the remaining successive installments shall be due and payable on the first day
of each calendar month during the Term. If the Rent Commencement Date occurs on
a day other than the first day of a month, Base Rent from the Rent Commencement
Date until the first day of the following month shall be prorated at the rate
of one-thirtieth (1/30) of the Monthly Base Rent for each day, and any excess
paid as the first installment on the execution of this Lease shall be credited
toward the second installment.


 


	
  Period

  	
   

  	
  Monthly Base Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Month 1 – 12

  	
   

  	
  $

  	
  36,441.60

  	
   

  
	
  Month 13 – 24

  	
   

  	
  $

  	
  37,542.44

  	
   

  
	
  Month 25 – 36

  	
   

  	
  $

  	
  38,681.24

  	
   

  
	
  Month 37 – 48

  	
   

  	
  $

  	
  39,858.00

  	
   

  
	
  Month 49 – 60

  	
   

  	
  $

  	
  41,072.72

  	
   

  



 


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2.             Commencing
on the Lease Commencement Date, additional rent (“Additional Rent”) consisting
of all other sums of money as shall become due from Tenant under this Lease.


 


3.             All
Base Rent and Additional Rent payable under this Lease shall be collectively
referred to herein as “Rent.”


 


B.            Tenant
shall pay all Rent without demand, deduction, set-off or counterclaim. If
Tenant fails to make any payment of Rent or other sums required to be paid to
Landlord hereunder within five (5) business days of any payment due date,
Tenant shall pay to Landlord, as Additional Rent, for each month or part
thereof until paid, a late fee equal to five percent (5%) of the amount due to
cover Landlord’s administrative expenses, and interest until paid at the
Default Rate provided under this Lease; provided, however, that should such
late fee or interest at any time be deemed to violate any applicable usury laws,
the late fee or interest charged shall be the highest permissible by such laws.
For default in the payment of Additional Rent, Landlord shall have the same
remedies as for a default in the payment of Base Rent. If Landlord shall at any
time or times accept any Rent after it has become due and payable, such
acceptance shall not excuse delay at subsequent times, nor constitute a waiver
of any of Landlord’s rights under this Lease.


 


7.             SECURITY
DEPOSIT.


 


Tenant shall pay to Landlord Thirty Six Thousand Four
Hundred Dollars ($36,400.00) to be held as collateral security for the payment
of Base Rent, Additional Rent and any other sums payable by Tenant under this
Lease, and for the faithful performance by Tenant of all other covenants,
conditions and agreements of this Lease; the unused portion of the Security
Deposit to be repaid to Tenant after the termination of this Lease or any
renewal thereof within sixty (60) days of such termination, provided Tenant
shall have made all such payments of this Lease. The Security Deposit shall not
be mortgaged, assigned, transferred or encumbered by Tenant without the written
consent of Landlord, and any such act on the part of Tenant shall be without
force and effect and shall not be binding upon Landlord. If any of the rents
herein reserved or any other sum payable by Tenant to Landlord shall be overdue
and unpaid, or should Landlord make payments on behalf of Tenant, or should
Tenant fail to perform any of the terms of this Lease, then Landlord at its
option and without prejudice to any other remedy that Landlord may have on
account thereof, may appropriate and apply the entire Security Deposit or so
much thereof as may be necessary to compensate Landlord toward the payment of
Base Rent, Additional Rent or any other sums due Landlord pursuant to this
Lease, or loss or damage sustained by Landlord due to such breach on the part
of Tenant; and Tenant upon demand shall forthwith restore the Security Deposit
to the original sum deposited. Tenant’s failure to restore said deficiency
within ten (10) business days after receiving Landlord’s written notice thereof
shall constitute a Default hereunder. In the event of bankruptcy or other
creditor-debtor proceedings against Tenant, the Security Deposit shall be
deemed to be applied first to the payment of Rent and other charges due
Landlord for all periods prior to the filing of such proceedings.


 


In the event of a sale or transfer of Landlord’s
estate or interest in the Land and Building, and Landlord’s
successor-in-interest assumes Landlord’s obligations under this Lease, Landlord
shall have the right to transfer the Security Deposit to the vendee or
transferee, and Landlord shall be considered released by Tenant from all
liability for the return of the Security Deposit. Tenant shall look solely to
the transferee for the return of the Security Deposit, and it is agreed that
all of the foregoing shall apply to every transfer or assignment made of the
Security Deposit to a new transferee. No Mortgagee or purchaser of any or all
of the Building at any foreclosure proceeding brought under the provisions of
any Mortgage shall (regardless of whether the Lease is at the time in question
subordinated to the lien of any Mortgage) be liable to the Tenant or any other
person for any or all of such sum (or any other or additional security deposit
or other payment made by the Tenant under the provisions of this Lease), unless
the Landlord has actually delivered it in cash to such Mortgagee or purchaser,
as the case may be. In the event of any rightful and permitted assignment of
Tenant’s interest in this Lease, the Security Deposit shall be deemed to be
held by Landlord as a deposit made by the assignee, and Landlord shall have no
further liability to the assignor with respect to the return of the Security
Deposit.


 


No right or remedy available to Landlord or Tenant as
provided in this Section shall preclude or extinguish any other right or remedy
to which Landlord or Tenant may be entitled.


 


8.             ADDITIONAL
RENT TO COVER OPERATING EXPENSES.


 


A.            For
each calendar year of the Term, Tenant shall pay to Landlord in the manner
provided in this Section 8, as Additional Rent, Tenant’s Share of Operating
Expenses in connection with Landlord’s operation and maintenance of the
Argentina Building (provided that by the terms of this Lease Tenant does not
contract directly for such service) during the initial Lease Term and any
extension thereof. Such Operating Expenses shall include, but not be limited
to, electricity, gas or other utility costs, property management fee (provided,
however, Tenant’s share of  such


 


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property management fee shall not exceed five percent (5%) of Base Rent
calculated on an annual basis), real estate taxes, common area expenses, the
amortized cost of capital improvements (as distinguished from replacement parts
or components installed in the ordinary course of business) which are intended
to maintain the quality, appearance or safety of the Building and/or the
project in which the Building is located, reduce other operating expenses or
increases thereof (but not in excess of the reasonably estimated savings), or
which are required to bring the Building and/or the project into compliance
with applicable laws and building codes enacted subsequent to the date of this
Lease, and insurance costs.


 


Operating Expenses shall not include (i) capital
improvements except as authorized by this Lease; (ii) costs of special services
rendered to individual tenants (including Tenant) for which a special charge is
made; (iii) ground rents or interest and principal payments on loans or
indebtedness secured by the Building; (iv) costs of leasehold improvements for
Tenant or other tenants of the Building; (v) costs for which Landlord is
reimbursed by other tenants of the Building other than through payment of
tenants’ shares of Operating Expenses and Taxes; (vi) leasing commissions,
attorneys fees, and other expenses incurred in connection with leasing space in
the Building or enforcing such leases; (vii) depreciation or amortization;
(viii) costs, fines or penalties incurred due to Landlord’s violation of any
law; (ix) advertising and promotional expenses; (x) costs incurred because
Landlord or any other tenant violated the terms of any lease, contract or other
legal obligation; and (xi) costs of repairs or other work needed due to fire,
windstorms, or other casualty or cause actually insured against by Landlord,
except for casualty insurance deductible amounts.


 


B.            Prior
to the determination of the actual amount of Operating Expenses, Tenant shall
make monthly installment payments toward such share on an estimated basis,
based on Landlord’s estimate of the share. Tenant shall pay Landlord on the
first day of each month of the calendar year one-twelfth (1/12th) of the
Landlord’s estimate.


 


C.            After
the end of each calendar year, Landlord shall determine the amount, if any, by
which the actual Operating Expenses for the calendar year varied from the
estimated Operating Expenses. Landlord shall provide to Tenant a statement (the
“Expense Reimbursement Statement”) of this determination no later than April
1st of the following calendar year. Within twenty (20) days after delivery of
the Expense Reimbursement Statement for each calendar year, Tenant shall pay to
Landlord any deficiency between the amount shown and the payments made by
Tenant toward such amount in accordance with paragraph 7. In the case of excess
payments, Tenant shall be credited with the excess toward subsequent estimated
payments. Each Expense Reimbursement Statement provided by Landlord pursuant to
paragraph 7 shall be conclusive and binding upon Tenant unless within thirty
(30) days after the receipt of the Expense Reimbursement Statement Tenant
notifies Landlord that it disputes the correctness of the Expense Reimbursement
Statement and specifies with particularity the respects in which the Expense
Reimbursement Statement is claimed to be incorrect. Pending determination of
the dispute, Tenant shall pay any amounts stated to be due from Tenant in
accordance with said Expense Reimbursement Statement, but such payment shall be
without prejudice to Tenant’s position. Tenant shall have a period of sixty
(60) days after delivery of the Expense Reimbursement Statement, upon at least
fifteen (15) days notice to Landlord, in which to inspect during normal
business hours, and at it expense, the appropriate books and records of
Landlord relating to Real Estate Taxes, Insurance Costs and Operating Expenses
for the purpose of verifying said Expense Reimbursement Statement. If Tenant
fails to review the records or fails to give timely written notice to Landlord
as required above, then Tenant shall be deemed to have accepted the Expense
Reimbursement Statement.


 


D.            Nothing
contained in this Section 8 shall be interpreted at any time to reduce the
Monthly Base Rent payable under this Lease below the amounts specified for such
Rent in Sections 6 and 7.


 


9.             SALES,
USE OR OTHER TAXES.


 


If, during the Term, any governmental authority having
jurisdiction levies, assesses or imposes any tax on Landlord, the Premises, the
Building, the Land, or the Rent payable hereunder in the nature of a sales tax,
a use tax, business license tax or any other tax except (i) income taxes, (ii)
estate or inheritance taxes, or (iii) ad valorem real estate taxes (payment of
which is provided for in Section 8 as a part of Operating Expenses), Tenant
shall pay the same to Landlord as Additional Rent upon the earlier to occur of
(1) fifteen (15) days following receipt by Tenant of notice of the amount of
such tax or (2) at the time of, and together with, the first payment of Monthly
Base Rent due following receipt by Tenant of notice of the amount of such tax.
If any such tax is levied, assessed, or imposed in such manner that the amount
of the tax required to be paid by Tenant is not ascertainable because the tax
relates to more than the Premises or the rents payable hereunder, then Tenant
shall pay a share of such taxes equal to the rentable square feet of the
Premises divided by the total gross rentable square feet of the Building, as
set forth in Section 1 of this Lease if such tax relates to the entirety of the
Building, and if such tax is calculated or assessed other than by the entirety
of the Building, then Tenant’s share thereof shall be equitably determined by
Landlord.


 


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10.          USE.


 


A.            Tenant
shall use and occupy the Premises solely for general office, recruiting and
training purposes conducted by the Gateway operations acquired under the Asset
Purchase Agreement and for no other purpose without the written consent of
Landlord.


 


B.            Tenant
shall not commit nuisance or waste on the Premises. Tenant shall not use or
occupy the Premises or use the Building or any portion of either for any
unlawful, disorderly, or hazardous purpose, or in a manner that will obstruct
or interfere with the rights of other occupants or their invitees or in any way
injure or annoy them. Tenant shall not conduct or permit any activity, or place
any equipment, in or about the Premises or the Building that shall in any way
increase the rate of insurance premiums on the Building or on any personal
property kept in the Building, or conflict with fire laws or regulations or
with any insurance policy on the Building or such personal property. Landlord
shall have the right to prescribe the maximum weight and position of safes and
other heavy equipment or fixtures that Tenant desires to install in the
Premises.


 


C.            Landlord
further covenants and agrees during the Term and any renewals or extensions
thereof to use its best efforts to assist Tenant in the procurement of economic
development, government aid, or similar assistance which may be available for
Tenant, including providing any required Landlord consents, verifications,
confirmations or certificates on behalf of Tenant not to be unreasonably
withheld or delayed.


 


D.            Tenant
shall comply at its expense with all present and future laws, ordinances and
requirements of all governmental authorities that pertain to Tenant or its use
of the Premises, including, without limitation, all federal and state
occupational health and safety and handicap access requirements, whether or not
Tenant’s compliance will necessitate expenditures or interfere with its use and
enjoyment of the Premises. Tenant shall not generate, handle, store or dispose
of hazardous or toxic materials (as such materials may be identified in any
federal, state or local law or regulation) in the Premises or project without
the prior written consent of Landlord; provided that the foregoing shall not be
deemed to proscribe the use by Tenant of customary office and cleaning supplies
in normal quantities so long as such use comports with all applicable laws. Tenant
agrees that it shall promptly complete and deliver to Landlord any disclosure
form regarding hazardous or toxic materials that may be required by any
governmental agency. Tenant shall also, from time to time upon request by
Landlord, execute such commercially reasonable affidavits concerning Tenant’s
best knowledge and belief regarding the presence of hazardous or toxic
materials in the Premises. Landlord shall have the right at any time to perform
an assessment of the environmental condition of the Premises and of Tenant’s
compliance with this Section at Landlord’s sole cost and expense. As part of
any such assessment, Landlord shall have the right, upon reasonable prior
notice to Tenant, to enter and inspect the Premises and to perform tests
(including physically invasive tests), provided those tests are performed in a
manner that minimizes disruption to Tenant. Tenant will cooperate with Landlord
in connection with any assessment by, among other things, promptly responding
to inquiries and providing relevant documentation and records. Landlord shall
have no liability to Tenant with respect to the results of any such
assessments, inspections or tests. Notwithstanding the above, the reasonable
cost of the assessment/testing shall be reimbursed by Tenant to Landlord if
such assessment/testing determines that Tenant failed to comply with the
requirements of this Section, and in that event Tenant shall accept custody and
arrange for the disposal of any hazardous materials found in the test samples.
In all events Tenant shall indemnify Landlord in the manner elsewhere provided
in this Lease from any release of hazardous or toxic materials caused by
Tenant, its agents, employees, contractors, subtenants or licensees. The
foregoing covenants shall survive the expiration or earlier termination of this
Lease.


 


Landlord
hereby represents and warrants to Tenant that, to the best of Landlord’s
knowledge, as of the execution of this Lease and as of the delivery of the
Premises to Tenant: (a) no hazardous or toxic materials are, will be, or have
been stored, treated, disposed of, or incorporated into, on, or around the
Premises in violation of any applicable statutes, ordinances or regulations;
(b) the premises are in material compliance with all applicable environmental,
health, and safety requirements; and (c) any business heretofore operated on
the Property has disposed of its waste in accordance with all applicable
statutes, ordinances, and regulations. Landlord has no knowledge of any pending
or threatened action or proceeding arising out of the condition of the Premises
or any alleged violation of environmental, health, or safety statutes,
ordinances or regulations. In no event shall Tenant be liable for, or
responsible for any remediation efforts related to, hazardous or toxic
materials that impact the Premises, Building or Land prior to the Lease
Commencement Date or that impact the Premises, Building or Land after the
expiration or earlier termination of this Lease. Further, in no event shall
Tenant be liable for any contamination arising out of or related to the acts or
omissions of Landlord, its agents, employees, contractors and other tenants on
the Premises or in the Building or the Land.


 


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11.          CARE
OF THE PREMISES.


 


Tenant shall at
its expense keep the Premises (including all improvements, Landlord’s
furniture, fixtures, and equipment, and all other property contained in the
Premises) in a neat and clean condition, and in good order and repair, and
shall surrender the Premises at the end of the Term in as good order and
condition as they were at the commencement of the Term, reasonable wear and
tear excepted. Tenant shall at its expense obtain janitorial service for the
Premises in a manner sufficient to maintain same in a neat and clean condition.


 


12.          ALTERATIONS
BY TENANT.


 


A.            Tenant
shall not make or permit any improvements, alterations, fixed decorations,
substitutions or modifications, structural or otherwise (“Alterations”), to the
Premises or to the Building without the prior consent of Landlord (both as to
whether any such alterations may be made at all and as to the manner in which
they may be made) in each instance (which approval shall not be unreasonably
withheld, conditioned or delayed). As used in this Section, the term “Alterations”
includes, but is not limited to, the installation, modification or removal of
carpeting; partitions; counters; doors; air conditioning equipment, including
ductwork; plumbing; piping; lighting fixtures; electrical wiring of any kind,
hardware; locks; ceilings;, windows; and window and wall coverings.


 


B.            Alterations
may be made only at Tenant’s expense, by contractors or subcontractors approved
by Landlord, which approval shall not be unreasonably withheld or delayed, and
only after (i) Tenant has obtained all necessary permits from governmental
authorities having jurisdiction and furnished copies of the permits to
Landlord, (ii) Tenant has submitted complete plans and specifications to
Landlord, and (iii) Landlord has given Tenant its approval as provided above. Landlord
shall have the right to have the making of any Alterations supervised by its
architects, contractors, or workmen at Tenant’s expense. If any mechanic’s,
materialman’s or similar lien is filed against the Premises, the Building, or
the Land for work done or materials supplied to Tenant, or claimed to have been
done for or supplied to Tenant, the lien shall be discharged by Tenant within
ten (10) days thereafter, solely at Tenant’s expense, by paying off or bonding
the lien, and Tenant shall indemnify and hold Landlord harmless from any and
all expenses, liens, claims, or damage to persons or property including, but
not limited to, the Building, that may arise from the making of any Alterations.
If any Alteration is made without the prior consent of Landlord, Landlord may
correct or remove the Alteration at Tenant’s expense. Following completion of
the Alterations, Tenant shall deliver to Landlord a complete set of “as built”
plans on electric media showing the Alterations, or shall reimburse Landlord
for any expense incurred by Landlord in causing the Building plans to be
modified to reflect the Alterations.


 


13.          EQUIPMENT.


 


Tenant shall not
install or operate in the Premises any equipment or other machinery, other than
standard size office copiers, and other machines requiring similar low electric
consumption without (i) first obtaining the consent of Landlord (who may
condition such consent upon the payment by Tenant of Additional Rent in
compensation for additional consumption of utilities or additional wiring
needed for the equipment of machinery), and (ii) securing any necessary permits
from governmental authorities and utility companies and furnishing copies of
such permits to Landlord. Tenant shall not install any equipment or machinery
that necessitate any changes, replacements or additions, to, or in the use of,
the water, heating, plumbing, air conditioning, or electrical systems of the
Building without first obtaining the prior consent of Landlord  (which approval shall not be unreasonably
withheld or delayed). Business machines and equipment belonging to Tenant that
cause noise or vibration that may be transmitted to any part of the Building to
such a degree as to be objectionable to Landlord or to any other tenant shall
be installed and maintained by Tenant, at Tenant’s expense, only on vibration
eliminators or other devices sufficient to eliminate the noise and vibration.


 


14.                               ALTERATIONS, EQUIPMENT AND OTHER
PROPERTY BELONGING TO LANDLORD/REMOVAL OF PERSONAL PROPERTY.


 


A.            Any
Alterations and other improvements and any equipment, machinery, furniture,
furnishings, and other property, installed or located in the Premises or the
Building by or on behalf of Landlord or Tenant (except for “Tenant’s Personal
Property,” as hereinafter defined) shall immediately become the property of
Landlord and shall remain upon and be surrendered to Landlord with the Premises
as a part thereof at the end of the Term; provided, however, that if Tenant is
not in default under this Lease, Tenant shall have the right to remove, prior
to the end of the Term, Tenant’s Personal Property, and provided, further, that
if Landlord should elect that any Alterations be removed at the end of the
Term, Tenant shall cause the same to be removed at Tenant’s expense or
reimburse Landlord for doing so. The term “Tenant’s Personal Property” shall
mean all equipment, machinery, improvements, furniture, fixtures, furnishings
and other property now or hereafter installed or placed in or on the Premises
or the Building by and at the


 


7

















 


sole expense of Tenant with respect to which Tenant has not been
granted any credit or allowance by Landlord and which (i) is not used, or was
not procured for use, in connection with the operation, maintenance or
protection of the Premises or the Building, (ii) is removable without damage to
the Premises or the Building, and (iii) is not a replacement of any property of
Landlord, whether such replacement is made at Tenant’s expense or otherwise.
Notwithstanding any other provision of this Lease, Tenant’s Personal Property
shall not include any Alterations, or any improvements or other property
installed or placed in or on the Premises as part of Landlord’s Work, whether
or not any such Alterations, improvements, or other property were at Tenant’s
expense.


 


B.            Tenant
shall remove all Tenant’s Personal Property and Trade Fixtures from the
Premises at the termination of this Lease. Any property belonging to Tenant or
any other person that is left in the Premises after the date the Lease is
terminated for any reason shall be deemed to have been abandoned. In such
event, Landlord shall have the right to declare itself owner of such property
and to dispose of it in whatever manner Landlord considers appropriate without
waiving its right to claim from Tenant all expenses and damages caused by
Tenant’s failure to remove the property, and Tenant shall not have any right to
compensation or claim against Landlord for the value of such property.


 


15.          LANDLORD’S
ACCESS TO PREMISES.


 


Landlord and its
agents may, at any reasonable time upon reasonable prior notice (except in an
emergency, when no such notice shall be required) and without liability to
Tenant, other than liability for personal injuries and damages resulting
directly from the gross negligence of Landlord or its servants, enter the
Premises to examine them or to make alterations or repairs or for any purpose
which Landlord considers necessary for the repair, operation, or maintenance of
the Building; provided, however, that in the case of an emergency, Landlord may
enter the Premises at any time, with or without notice, whether or not said
entry is reasonable. Tenant shall allow the Premises to be exhibited by
Landlord or its agents upon forty-eight (48) hours prior notice (i) to any
representative of lending institutions or to any prospective purchaser or
purchasers of the Building, and (ii) during the last twelve (12) months of the
Term or renewal term, to prospective tenants of the Premises or other space in
the Building.


 


16.          SERVICES
AND UTILITIES.


 


So long as Tenant is not in default under this Lease,
Landlord shall provide the following facilities and services to Tenant the
costs of which shall be included as Operating Expenses:


 


A.            Central
heating and air conditioning during the seasons of the year when these services
are normally and usually furnished, and within the temperature ranges and in
such amounts normally or usually furnished in comparable office buildings in
North Sioux City, South Dakota with Tenant to pay its proportionate share of the
cost of utilities incurred to provide such heating and air conditioning within
thirty (30) days of Landlord’s invoice therefor.


 


B.            Cleaning
of the lobby in Landlord’s standard manner and provision of water services to
lavatories as normally or usually furnished in comparable office buildings in
North Sioux City, South Dakota.


 


C.            Electrical
facilities to furnish sufficient electrical power to Tenant’s equipment
installed in accordance with Section 13 hereof; provided, however, Tenant shall
be responsible to pay any and all costs associated with the use and consumption
of any such electrical utility services as Operating Expenses.


 


D.            Access
to the Premises on a full-time twenty-four (24) hour basis, subject to such
regulations as Landlord may impose for security reasons. Landlord shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Project. Tenant assumes all responsibility
for the protection of Tenant, its employees, agents, invitees and property from
acts of third parties. Nothing herein contained shall prevent Landlord, at its
sole option, from providing security protection for the Project or any part
thereof, in which event the non-capital cost thereof shall be included within the
definition of Operating Expenses. Tenant hereby acknowledges that existing
security improvements are satisfactory.


 


Any failure by
Landlord to furnish the foregoing service resulting from Unavoidable Delays, as
hereinafter defined, or from temporary interruption of the foregoing services
due to repairs or maintenance, shall not render Landlord liable in any respect
for damages to either person or property, nor be construed as an eviction of
Tenant, nor cause an abatement of rent, or relieve Tenant from Tenant’s
obligations under this Lease; provided Landlord uses commercially reasonable
efforts to restore such services. For purposes of this Section 16 and of
Section 32, the term “Unavoidable Delays” shall mean any delays due to strikes;
labor disputes; shortages of material, labor or energy; acts of God;
governmental restrictions; enemy action; civil commotion; fire; unavoidable
casualty or other causes beyond the control of Landlord and which do not arise
from the gross negligence or willful misconduct of Landlord, its officers,
agents, employees and licensees.


 


8

















 


If any public
utility or governmental body shall require Landlord or Tenant to restrict the
consumption of any utility or reduce any service for the Premises or the
Building, Landlord and Tenant shall comply with such requirements whether or
not the utilities and services referred to in this Section are thereby reduced
or otherwise affected, without reduction or adjustment of Rent hereunder.


 


Landlord and its
agents shall be permitted reasonable access to the Premises, and the right to
install facilities within or through the Premises, in order to install and
service the systems deemed necessary by the Landlord to provide to other
tenants of the Building the services and utilities referred to in this Section.


 


17.                               RULES AND REGULATIONS.


 


Tenant and its
agents and invitees shall abide by and observe the rules and regulations
attached hereto as Exhibit C and such other rules and regulations as may be
promulgated from time to time by Landlord for the operation and maintenance of
the Building, provided such rules and regulations do not unreasonably interfere
with Tenant’s permitted use of the Premises and do not contradict the terms and
provisions of this Lease. Nothing contained in this Lease shall be interpreted
to impose upon Landlord any duty or obligation to enforce any such rules and
regulations, or the provisions contained in any other lease against any other
tenant, and Landlord shall not be liable to Tenant for any violation of these
rules, regulations, or lease provisions by any other tenant or its agents or
invitees.


 


18.                               INDEMNIFICATION.


 


A.            Tenant
shall indemnify and hold Landlord harmless from and against any and all claims,
demands, liabilities, and expenses, including attorney’s fees, arising from
Tenant’s use of the Premises or from any act permitted, or any omission to act,
in or about the Premises or the Building by Tenant or its agents, employees,
contractors, or invitees, or from any breach or default by Tenant of this
Lease; provided, however, nothing contained herein shall require Tenant to
indemnify Landlord against matters resulting from the gross negligence or
willful acts or omissions of Landlord or Landlord’s agents, employees, contractors
or invitees, or other Tenant or its agents, employees, contractors, or invitees.
In the event any action or proceeding shall be brought against Landlord by
reason of any such claim, Tenant shall defend the same at Tenant’s expense by
counsel reasonably satisfactory to Landlord.


 


B.            Landlord
shall indemnify and hold Tenant harmless from and against any and all claims,
demands, liabilities, and expenses, including attorney’s fees, arising from
Landlord’s ownership and use of the Premises and the Building, or from any act
permitted, or any omission to act, in or about the Premises or the Building by
Landlord or its agents, employees, contractors, or invitees, or from any breach
or default by Landlord of this Lease; provided, however, nothing contained herein
shall require Landlord to indemnify Tenant against matters resulting from the
negligence or willful acts or omissions of Tenant or Tenant’s agents,
employees, contractors or invitees, or other Tenant or its agents, employees,
contractors, or invitees.


 


19.                               REPAIR OF DAMAGE CAUSED BY
TENANT.


 


All uninsured
injury or damage to the Premises or the Building caused by Tenant or its agents
or invitees shall be repaired by Landlord at Tenant’s expense.


 


20.                               LANDLORD NOT LIABLE FOR DAMAGE TO
PERSONAL PROPERTY OR PERSON.


 


All property of
Tenant, its agents or invitees, or of any other person, in or on the Premises
or the Building, shall be and remain at the sole risk of Tenant or such agent,
invitee or person. Landlord shall not be liable for any damage to or theft or
loss of such property, whether or not caused by the act or omission of any
person, including Landlord and its agents or invitees, or by the bursting,
leaking or overflowing of water, sewer, steam or sprinkler pipes, or heating or
plumbing fixtures; air conditioning or heating failure; gas odors; noise; or
any other act or thing, unless such damage to or theft or loss of such property
results directly from the gross negligence or willful misconduct of Landlord
and then only to the extent that Tenant, its agents, invitees, or any other
persons are not compensated therefor by insurance. In no event shall Landlord
be liable for any interruption of or loss to Tenant’s business that may result
from any of the acts or causes described above. Landlord shall not be liable
for any personal injury to Tenant, its agents or invitees, or to any other
person, arising from the use, occupancy or condition of the Premises or the
Building other than liability for personal injuries resulting directly from the
negligence or willful misconduct of Landlord, and then only to the extent that
Tenant is not compensated therefor by insurance.


 


21.                               FIRE AND OTHER CASUALTY.


 


A.            If the
Premises shall be damaged by fire or other casualty other than as a result of
the fault or negligence of Tenant,  and
such fire or other casualty is insured against by Landlord, and Landlord shall
have received


 


9

















 


from such insurance sufficient proceeds to fully repair all of the
damage caused by such fire or other casualty, Landlord shall repair the damage,
provided that Landlord shall have no obligation to repair damage to or replace
Tenant’s Personal Property or any other property located in the Premises, and
the Lease shall not terminate. Except as otherwise provided herein, if the
entire Premises are rendered untenantable by reason of any such damage, Rent
shall abate for the period from the date of the damage to the date the damage
is repaired as determined by Landlord, and if only a part of the Premises are
so rendered untenantable Rent shall abate for the same period in the proportion
that the area of the untenantable part bears to the total area of the Premises;
provided, however, that if prior to the date when all the damage has been
repaired part of the Premises so damaged are rendered tenantable and shall be
or could be used or occupied by or through Tenant, then the amount by which
Rent abates shall be apportioned for the period from the date of such actual or
available use or occupancy to the date when all the damage has been repaired as
determined by Landlord. No compensation or reduction of Rent shall be paid or
allowed by Landlord for inconvenience, annoyance, or injury to Tenant’s
business arising from the need to repair the Premises or the Building.


 


B.            Notwithstanding
the provisions above, if the Building shall be so damaged by fire or other
casualty that, as determined by Landlord, substantial reconstruction of the
Building is required (whether or not the Premises have been damaged or rendered
untenantable), then Landlord, at its option, may give Tenant, within sixty (60)
days after the fire or other casualty, written notice of termination of this
Lease and, in the event such notice is given, this Lease and the Term shall
terminate (whether or not the Term shall have commenced) upon the expiration of
thirty (30) days from the date of notice with the same effect as if the date of
expiration of the thirty days were the date initially fixed for expiration of
the Term, and all rents shall be apportioned as of such date.


 


C.            If the
Premises or the Building should be damaged by fire or other casualty due to the
negligence or misconduct of Tenant, Landlord shall have no obligation to repair
the Premises or the Building, and this Lease shall, at Landlord’s option, not
terminate and Landlord shall, at Tenant’s expense, have the right to pursue any
legal and equitable remedies available to it. Notwithstanding the foregoing, in
the event of a fire or other casualty to the Premises with respect to which Landlord
does not elect to so terminate this Lease, and which is not caused by the
negligence or misconduct of Tenant, then so long as Tenant is not in default
under this Lease beyond applicable notice and cure periods, in the event
Landlord fails to repair the damage within that period of time which is the
earlier of (i) one (1) year following the date of such fire or other casualty,
and (ii) nine (9) months after receipt by Landlord of sufficient insurance
proceeds to repair the damage and any and all applicable licenses, permits and
approvals with respect thereto (such time periods being extended for any
periods of delay caused by force majeure 
(defined for purposes of this paragraph as strikes, lockouts, labor
troubles, failure of power, riots, insurrection, war, acts of God, or other
reason of like nature, not the fault of Landlord) or the acts of Tenant or its
agents, contractors or employees), then in such event Tenant shall be entitled
to terminate this Lease upon not less than thirty (30) days prior written
notice and opportunity to cure to Landlord, such notice of termination to be
given, if at all, prior to the date Landlord repairs such damage.


 


22.                               TENANT’S INSURANCE.


 


A.            Tenant,
at Tenant’s expense, shall obtain and maintain in effect at all times during
the Term insurance policies providing at least the following insurance
coverage:


 


1.             A
policy of fire and extended coverage insurance, i.e., an “all risk” policy,
covering all Tenant’s Personal Property and Trade Fixtures and all other
property in the Premises for not less than the full replacement value. Any and
all proceeds of such insurance shall be used only to repair or replace the
items so insured.


 


2.             A
policy covering business interruption to Tenant’s business in an amount equal
to one hundred percent (100%) of the estimated gross annual income of Tenant’s
business.


 


3.             A
comprehensive general liability insurance policy, naming Landlord and any
mortgagee of the Land or Building as additional insureds and protecting
Landlord, Tenant and any such mortgagee against any liability for bodily
injury, personal injury, death or property damage occurring upon, in or about
the Premises, Building or Land, or arising from any of the items set forth in
Section 18 against which Tenant is required to indemnify Landlord, with such
policy to afford protection with a limit of not less than $1,000,000 with
respect to bodily injury, personal injury, or death to any one person, with a
limit of not less than $3,000,000 with respect to bodily injury, personal
injury, or death in any one occurrence, and with a limit of not less than
$3,000,000 with respect to damage to property in any one occurrence. Landlord
may require Tenant, at Tenant’s expense, to increase the limits of said
insurance during the Term, if, in the exercise of prudent business judgment,
the Landlord deems the current limits of Tenant’s policy to be inadequate.


 


10

















 


B.            All
insurance policies required to be obtained and maintained by Tenant under this
Lease must (i) be issued by insurance companies rated “A-” or better, with a
minimum size rating of “VIII”, by Bests Insurance Guide and Key Ratings; (ii)
be written as primary policy coverage and not contributing with or in excess of
any coverage which Landlord or its mortgagees may carry; (iii) contain an
express waiver of any right of subrogation by the insurance company against
Landlord, its agents and mortgagees; and (iv) provide that the policy may not
be canceled or non-renewed unless Landlord shall have received at least fifteen
(15) days prior written notice of cancellation or nonrenewal. Tenant shall
deliver to Landlord certified copies, or duplicate originals, of each such
policy or renewal policy, together with evidence of payment of all applicable
premiums, at least ten (10) days before the Lease Commencement Date and at
least thirty (30) days before the expiration of the expiring policies
previously furnished. Any insurance required of Tenant under this Section may
be carried under a blanket policy covering the Premises and other locations of
Tenant, provided Tenant shall deliver to Landlord a duplicate original or
certified copy of each blanket policy, or other evidence satisfactory to
Landlord of blanket coverage and provided further that said blanket policy
shall specifically set forth the amount of insurance allocated to Tenant’s
insurance requirements under this Lease. Neither the issuance of any such
insurance policy nor the minimum limits specified in this Section with respect
to Tenant’s insurance coverage shall be deemed to limit or restrict in any way
Tenant’s liability arising under or out of this Lease.


 


C.            In the
event of increases in the insurance rates for fire insurance or other insurance
carried by Landlord due to activity or property on or about the Premises or the
Building, or for improvements to the Premises other than Building Standard
improvements, for which Tenant is responsible, Tenant shall be liable for such
increases and shall reimburse Landlord within ten (10) days of Tenant’s receipt
of Landlord’s written demand therefor. Statements by an insurance company or by
the applicable insurance rating bureau that such increases are due to such
activity, equipment or improvements shall be conclusive evidence for
determining said liability of Tenant.


 


23.                               WAIVER OF SUBROGATION.


 


Landlord and
Tenant each hereby releases the other, its agents, invitees, or visitors from
any claims for damage or loss to any person or to the Premises, the Building,
any property contained therein, or any other property, caused by or resulting
from any risks insured against under any insurance policies carried by Landlord
or Tenant and in force at the time of any such damage or loss to the extent
such damage or loss is actually compensated by insurance proceeds, regardless
of the cause of the damage or loss (including the negligence of Landlord or
Tenant or their respective agents).


 


24.                               CONDEMNATION.


 


A.            If the
whole or a substantial part of the Building or the Land is taken or condemned
by any governmental authority for any purpose (or is transferred to any
governmental authority in lieu of condemnation, such transfer being deemed a
condemnation for purposes of this Lease), Landlord shall have the right at its
sole discretion to terminate the Lease upon sixty (60) days notice to Tenant,
and upon the giving of such notice by Landlord the Term shall terminate as of
the date title vests in the authority, and the rent shall be abated on that
date.


 


If the
whole or a substantial part of the Leased Premises is taken or condemned by any
governmental authority for any purpose (or is transferred to any governmental
authority in lieu of condemnation, such transfer being deemed a condemnation
for purposes of this Lease), Landlord or Tenant shall have the right at its
sole discretion to terminate the Lease upon sixty (60) days notice to the other
Party, and upon the giving of such notice the Term shall terminate as of the
date title vests in the authority, and the rent shall be abated on that date.


 


B.            If less
than a substantial part of the Premises, the Building or the Land is taken or
condemned by any governmental authority for any purpose, or if a substantial
part of the Premises, the Building or the Land is taken or condemned by any
governmental authority for any purpose, but Landlord does not elect to
terminate this Lease pursuant to the preceding paragraph, provided that at
least some portion of the Premises is taken, Rent shall be equitably adjusted
as of the date title vests in the authority and this Lease shall otherwise
continue in full force and effect. For purposes of this Section, a substantial
part of the Premises, the Building or the Land shall be considered to have been
taken or condemned if, in the reasonable opinion of Landlord, the taking or
condemnation shall prevent Tenant from conducting on a permanent basis its
business in the Premises in a manner reasonably comparable to that conducted
immediately prior to such taking or condemnation. Tenant shall have no claim
against Landlord arising out of the taking or condemnation, or arising out of
the cancellation or termination of this Lease, or for any portion of the amount
that may be awarded as damages as a result of any taking or condemnation or for
the value of any unexpired portion of the Term or for any property other than
Tenant’s Personal Property, and Tenant hereby assigns to Landlord all its
rights, title and interest in and to any such award; provided, however, that in
the event of a total taking, Tenant may assert any claim it may have against
the condemning authority for compensation 
for Tenant’s Personal Property and for any relocation


 


11

















 


expenses compensable by statute, and receive such awards therefor as
may be allowed in the condemnation proceedings if such awards shall be made in
addition to and stated separately from the award made for the Premises, the
Building or the Land. Landlord shall have no obligation to contest any taking
or condemnation.


 


25.                               DEFAULT PROVISIONS AND REMEDIES.


 


A.            Default
of Tenant. The following
events shall be a default (“Default”) of Tenant under this Lease:


 


1.             Failure
of Tenant to pay any Rent when due.


 


2.             Failure
of Tenant to perform or comply with any provision of this Lease to be performed
or complied with by Tenant (other than provisions for the payment of Rent), and
such failure continues for fifteen (15) days after notice from Landlord to
Tenant specifying the failure (provided, however, if such failure cannot be
cured within such fifteen (15) day period, Tenant shall not be in default if
Tenant, within such fifteen (15) day period, commences and diligently proceeds
with all actions necessary to cure such failure); provided, however, that if
Tenant has received two (2) such notices within the immediately preceding 365-day
period, no notice of any such failure shall be required.


 


3.             If
Tenant, any guarantor of Tenant or, if Tenant is a partnership or consists of
two or more persons, any such partner or person, shall file a voluntary
petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or
insolvent, or shall file a petition or answer seeking any reorganization,
arrangement composition, readjustment, liquidation, dissolution, or similar
relief under the present or any future federal bankruptcy acts or any other
present or future applicable federal, state, or other statue or law, or shall
make an assignment for the benefit of creditors, or shall seek or consent to or
acquiesce in the appointment of a trustee, receiver or liquidator of Tenant or
of such guarantor, partner, or person.


 


4.             If any
proceeding seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
bankruptcy act or any other present or future applicable federal, state or
other statute or law, is filed against Tenant, any guarantor of Tenant, or, if
Tenant is a partnership, against any such partner of Tenant, whether by filing
of a petition or otherwise, and such preceding shall not have been dismissed
within ninety (90) days after the filing thereof; or if a trustee, receiver or
liquidator is appointed for Tenant or for any guarantor or, if Tenant is a
partnership, any such partner of Tenant, without the consent or acquiescence of
Tenant, and such appointment shall not have been vacated or otherwise
discharged within ninety (90) days after such appointment; or, if any execution
or attachment shall be issued against the property of Tenant or of any
guarantor or partner of Tenant, pursuant to which execution or attachment the
Premises shall be taken or occupied or attempted to be taken or occupied; or


 


5.             If
Tenant fails to take possession of the Premises as of the Lease Commencement
Date or vacates or abandons the Premises or ceases to carry on its ordinary
activities in the Premises prior to normal expiration of the Term.


 


B.            Remedies
Upon Default. Upon the
occurrence of a Default, Landlord shall have the right, at its election, then
or at any time thereafter:


 


1.             To
give Tenant thirty (30) days written notice of Landlord’s intent to terminate
this Lease, and on such date Tenant’s right of use and possession of the
Premises shall cease and this Lease shall thereupon be terminated; or


 


2.             Without
demand or notice, to reenter and take possession of all or any part of the
Premises, and expel Tenant and those claiming through Tenant, and remove the
property of Tenant and any other person, either by summary proceedings or by
action at law, in equity or otherwise, without being deemed guilty of trespass
and without prejudice to any remedies for nonpayment or late payment of Rent or
breach of covenant.


 


If Landlord elects
to reenter under this Subsection B.(2), Landlord may terminate this Lease, or
from time-to-time without terminating this Lease, may relet all or any part of the
Premises, as agent for Tenant, for such term or terms and at such rental and
such other terms and conditions as Landlord may deem acceptable, with the right
to make alterations and repairs to the Premises. No such reentry or taking of
possession of the Premises by Landlord shall be construed as an election on
Landlord’s part to terminate this Lease unless notice of such intention is
given to Tenant under subsection B.(1) above, or unless the termination be
decreed by a court of competent jurisdiction at the instigation of Landlord.
Landlord shall mitigate its damages by making commercially reasonable efforts
to relet the Premises, or any part thereof, for the account of Tenant.


 


C.            Liability
of Tenant. If Landlord
terminates this Lease or reenters the Premises pursuant to


 


12

















 


Subsection B above, Tenant shall remain liable (in addition to accrued
liabilities) for (i) any unpaid Rent earned at the time of termination, plus
interest thereon from the due date at the rate (“Default Rate”) of ten percent
(10%) per annum or two percent (2%) per annum above the prime rate of interest
announced from time to time by the Bank of America (or such other bank that may
serve from time to time as the lead bank for the Landlord), whichever is
higher; provided, however, that if such interest is limited by law to a lesser
amount, Landlord shall be entitled to the maximum amount of interest permitted
by law, (ii) Rent and any other sums provided for in this Lease until the date this
Lease would have expired had such termination not occurred, (iii) any and all
expenses (including, but not limited to, attorney’s fees and brokerage fees)
incurred by Landlord in reentering and repossessing the Premises, in curing any
Default by Tenant, in painting, altering, repairing or dividing the Premises,
in protecting and preserving the Premises by use of watchmen and caretakers,
and in reletting the Premises, and (iv) any other amount necessary to
compensate Landlord for any other loss suffered by Landlord by Tenant’s failure
to perform its obligations under this Lease (excluding consequential damages),
less the net proceeds received by Landlord from any reletting prior to the date
this Lease would have expired if it had not been terminated. Tenant agrees to
pay to Landlord the amount so owed above for each month during the term, at the
end of each such month. Any suit brought by Landlord to enforce collection of
such amount for any one month shall not prejudice Landlord’s right to enforce
the collection of any such amount for any subsequent month. In addition to the
foregoing, and without regard to whether this Lease has been terminated, Tenant
shall pay to Landlord all costs incurred by Landlord, including attorney’s
fees, with respect to any lawsuit or action instituted or taken by Landlord to
enforce the provisions of this Lease. Tenant’s liability shall survive the
institution of summary proceedings and the issuance of a warrant thereunder.


 


D.            Liquidated
Damages. If Landlord
terminates this Lease pursuant to Section B above, Landlord shall have the
right at any time, at its sole option, to require Tenant to pay to Landlord on
demand, as liquidated and agreed final damages in lieu of Tenant’s liability
under Subsection C above, (i) the then present cash value of the Rent and all
other sums which would have been payable under this Lease from the date of such
demand to the date when this Lease would have expired if it had not been
terminated; provided, however, that if such damages are limited by law to a
lesser amount, Landlord shall be entitled to prove as liquidated damages the
maximum amount permitted by law.


 


In making the
foregoing computation for liquidated damages, the then present cash value of
Rent and all other sums which would have been payable under this Lease from the
date of demand to the date the Lease would have expired if it had not been
terminated shall be deemed to be the sum which, if invested at three percent
(3%) per simple interest, would produce such Rent and other sums over the
period of time in question. Nothing herein shall be construed to affect or
prejudice Landlord’s right to prove, and claim in full, unpaid rent accrued
prior to termination of this Lease plus interest thereon at the Default Rate
from the due date.


 


E.             Waiver. Tenant, on its own behalf and on behalf of all
persons claiming through Tenant, including all creditors, does hereby waive any
and all rights and privileges, so far as is permitted by law, that Tenant and
all such persons might otherwise have under any present or future law (i) to
redeem the Premises, (ii) to reenter or repossess the Premises, or (iii) to
restore the operation of this Lease, with respect to any dispossession of
Tenant by judgment or warrant of any court or judge, or any reentry by Landlord,
or any expiration or termination of this Lease, whether such dispossession,
reentry, expiration or termination of this Lease shall be by operation of law
or pursuant to the provisions of this Lease. The words, “dispossession,” “reenter,”
reentry” and “reentered” as used in this Lease shall not be deemed to be
restricted to their technical legal meanings.


 


F.             Right
to Enjoin, Etc. In the event
of any breach or threatened breach by Tenant or any persons claiming through
Tenant of any of the provisions contained in this Lease, Landlord shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right or remedy allowed at law, in equity, or otherwise as if
reentry, summary proceedings or other specific remedies were not provided for
in this Lease.


 


G.            Right
of Distress. Landlord shall,
to the extent permitted by law, have (in addition to all other rights) a right
of distress for rent.


 


H.            Default
of Landlord. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Tenant
in writing, specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord’s obligation is such that
more than thirty (30) days are required for performance then Landlord
shall not be in default if Landlord commences performance within such thirty
(30) day period and thereafter diligently prosecutes the same to
completion. If Landlord remains in default beyond the aforementioned cure
period, Tenant shall have the right to exercise any rights and remedies
available to it under


 


13

















 


applicable South Dakota law.


 


26.                               RIGHT OF LANDLORD TO CURE TENANT’S
DEFAULT.


 


If Tenant defaults
in the making of any payment or in the doing of any act required to be made or
done under this Lease by Tenant, then Landlord may, but shall not be required
to, make such payment or do such act, and the expense thereof, if made or done
by Landlord, with interest thereon at the Default Rate, shall be paid by Tenant
to Landlord and shall constitute Additional Rent hereunder due and payable with
the next payment of Monthly Base Rent; but the making of such payment or the
doing of such act shall not operate to cure the default or to estop Landlord
from the pursuit of any remedy to which Landlord would otherwise be entitled.


 


27.                               WAIVER.


 


No failure by
Landlord or Tenant to insist upon the strict performance by the other party of
any provisions of this Lease, or to exercise any right or remedy for default
hereunder, and no acceptance by Landlord of full or partial rent during the
continuance of any such Tenant’s default, shall constitute a waiver of the
default or of the provision, and no default shall be waived or modified except
by a written instrument executed by Landlord or Tenant. No waiver of any
default or compromise, or settlement of any proceeding instituted by Landlord
or Tenant, shall affect or alter this Lease or constitute a waiver of any of
its provisions, but each and every provision of this Lease shall continue in
full force and effect with respect to any other then existing or subsequent
default. No payment by Tenant, or receipt by Landlord, of a lesser amount than
the correct Monthly Base Rent or Additional Rent shall be deemed to be other
than a payment on account, nor shall any endorsement or statement on any check
or letter accompanying any check for payment of Rent or any other amounts owed
to Landlord be deemed to effect or evidence an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord’s right
to recover the balance of the Rent or other amount owed or to pursue any other
remedy provided in this Lease or at law. No reentry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall operate as a termination of
this Lease or as a surrender of the Premises.


 


28.                               HOLDING OVER.


 


If Tenant shall be
in possession of the Premises after the termination of this Lease (whether by
normal expiration of the Term or by early termination thereof pursuant to
Landlord’s remedies, or otherwise), at Landlord’s option, (i) Landlord may deem
Tenant to be occupying the Premises as a tenant from month to month, at one
hundred fifty percent (150%) of the Base Rent and Additional Rent in effect for
the last full month of the Term, and subject to all other provisions of this
Lease as applicable or adjusted to a month-to-month tenancy or (ii) Landlord
may exercise any other remedies it has under this Lease or at law or in equity,
including an action for wrongfully holding over.


 


29.                               SUBORDINATION AND ATTORNMENT.


 


Tenant agrees that
this Lease is subject and subordinate to the lien of any and all deeds of trust
or mortgages (“Mortgages”, which term shall include both construction and
permanent financing and all ground or other underlying leases from which
Landlord’s title is or hereafter may be derived) that may now or hereafter
encumber or otherwise affect the Land or the Building, or Landlord’s leasehold
therein, and to any and all renewals, extensions, modifications, recastings or
refinancings thereof. Landlord further agrees to execute, and use its
reasonable efforts to furnish to Tenant (promptly as to any existing mortgagee
and immediately as to any future mortgagee of the Premises) a commercially
reasonable non-disturbance agreement in favor of Tenant. If requested by
Landlord, Tenant shall promptly execute and deliver to Landlord any certificate
or other document evidencing or effecting such subordination as Landlord may
request in its sole discretion, subject to the conditions set forth in this
Section 29. Landlord may execute said certificate or other document on behalf
of Tenant if Tenant does not execute and deliver to Landlord said certificate
or other document within five (5) days after receiving it. Tenant agrees that
if any proceedings are brought for the foreclosure of any such mortgage or deed
of trust, Tenant, if requested to do so by the purchaser at the foreclosure
sale, shall attorn to the purchaser, shall recognize the purchaser as the
landlord under this Lease, and shall make all payments required hereunder to
such new landlord without any deduction or set-off of any kind whatsoever.
Tenant agrees that if any proceedings are successfully brought for the
termination of any ground lease, or if any other remedy is successfully
exercised by the ground lessor whereby the ground lessor succeeds to the
interest of tenant under the ground leases, Tenant, if required to do so by the
ground lessor, shall attorn to the ground lessor, shall recognize the ground
lessor as the landlord this Lease, and shall make all payments required
hereunder to such new landlord without deduction or set-off. Tenant waives the
provisions of any law, statute or regulation, now or hereafter in effect, that
may give or purport to give Tenant any right to terminate or otherwise
adversely affect this Lease and the obligations of Tenant hereunder in the
event that such foreclosure or termination or other proceeding is prosecuted or
completed. Anything contained in the provisions of this Section to the contrary
notwithstanding, any Mortgagee may at any time subordinate the lien of its


 


14

















 


Mortgage to the operation and effect of this Lease without obtaining
the Tenant’s consent thereto, by giving the Tenant written notice thereof, in
which event this Lease shall be deemed to be senior to such Mortgage without
regard to their respective dates of execution, delivery and/or recordation
among the land records, and thereafter such Mortgagee shall have the same
rights as to this Lease as it would have had, were this Lease executed and
delivered before the execution of such Mortgage.


 


30.                               ASSIGNMENT AND SUBLETTING.


 


A.            Tenant
shall not, without the prior written consent of Landlord in each instance
(which consent shall not be unreasonably withheld, conditioned or delayed) (i)
assign or otherwise transfer, mortgage or otherwise encumber this Lease or any
of its rights hereunder: (ii) sublet the Premises or any part thereof, or
permit the occupancy or use of the Premises or any part thereof by any persons
other than Tenant; or (iii) permit the assignment or other transfer of this
Lease or any part of Tenant’s rights hereunder by operation of law (provided,
however, Tenant may transfer or assign this Lease to a parent, subsidiary or
affiliate company, or to the surviving entity in any merger, consolidation, or
acquisition involving Tenant without the requirement of obtaining Landlord’s
consent provided that Tenant shall give written notice thereof to Landlord,
including reasonable substantiation of the status of such transferee within one
of the foregoing described groups, and no such transfer or assignment shall
terminate or otherwise affect the continuing liability under this Lease of the
originally named Tenant or any prior transferee). Any attempted or purported
transfer, assignment, mortgaging or encumbering of this Lease or any of Tenant’s
interest hereunder and any attempted or purported subletting or grant of a
right to use or occupy all or a portion of the Premises in violation of the
foregoing sentence shall be null and void and shall not confer any rights upon
any purported transferee, assignee, mortgagee, sublessee or occupant.


 


B.            The
consent by Landlord to any assignment, transfer, or subletting to any party
shall not be construed as a waiver or release of Tenant under the terms of any
covenant or obligation under this Lease, nor shall the collection or acceptance
of rent from any such assignee, transferee, subtenant or occupant constitute a
wavier or release of Tenant of any covenant or obligation contained in this
Lease, nor shall any such assignment, transfer or subletting be construed to
relieve Tenant from giving Landlord said thirty (30) days notice, or from
obtaining the consent of Landlord to any further assignment, transfer or
subletting. In the event that Tenant defaults under this Lease, Tenant hereby
assigns to Landlord the rent due from any subtenant of Tenant and hereby
authorizes each such subtenant to pay said rent directly to Landlord


 


C.            In the
event Landlord gives Tenant its consent to assign, transfer or sublet all or a
portion of the Premises to a third party, any monthly rent or other payment or
consideration accruing to Tenant as the result of such assignment, transfer or
sublease that is in excess of the rent then payable by Tenant under this Lease
shall be paid by Tenant to the Landlord monthly as Additional Rent. Tenant
shall pay, as Additional Rent, for any cost and expenses, including attorney’s
fees, incurred by Landlord in connection with any proposed or purported
assignment, transfer or sublease, not to exceed $1,000.00.


 


D.            Anything
contained in the foregoing provisions of this Section to the contrary
notwithstanding, neither Tenant nor any other person having an interest in the
possession, use, occupancy or utilization of the Premises shall enter in to any
lease, sublease, license, concession or other agreement for use, occupancy or
utilization of space in the Premises that provides for rental or other payment
for such use, occupancy or utilization based, in whole or in part, on the net
income or profits derived by any person from the premises leased, used,
occupied or utilized (other than an amount based on a fixed percentage or
percentages of receipts of sales), and any such purported lease, sublease,
license, concession or other agreement shall be absolutely void and ineffective
as a conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.


 


31.                               TRANSFER BY LANDLORD.


 


Landlord may
freely sell, assign, or otherwise transfer all or any portion of its interest
under this Lease or in the Premises or the Building, and in the event of any
such sale, assignment or other transfer, (i) the party originally executing
this Lease as Landlord, and any successor or affiliate of such party and
without further agreement between Landlord and Tenant, shall be relieved of all
liability to Tenant under this Lease and Tenant shall thereafter be bound to
such purchaser, assignee or other transferee, as the case may be, with the same
effect as though the latter had been the original Landlord hereunder, and (ii)
the terms of this Lease shall not be affected unless otherwise agreed to in
writing by Tenant.


 


15

















 


32.                               INABILITY TO PERFORM.


 


This Lease and the
obligations of Tenant to pay Rent, and the obligations of the parties to
perform all of the provisions on the part of such party to be performed shall
in no way be affected, impaired or excused, nor shall a party have any claim
against the other for damages, because a party, due to Unavoidable Delays (as
defined in Section 16), is unable to fulfill any of its obligations under this
Lease, including, but not limited to, the obligations to supply any service
expressly or impliedly to be supplied, make any repairs, replacements,
additions, alterations, or decorations or supply any improvements, equipment or
fixtures.


 


33.                               ESTOPPEL CERTIFICATES.


 


Tenant shall,
without charge, at any time and from time to time, within five (5) business
days after receipt of  written request
therefor by Landlord, execute, acknowledge and deliver to Landlord, at
Landlord’s option, the estoppel certificate attached hereto as Exhibit D and/or
a written estoppel certificate certifying to Landlord, any mortgagee, assignee
of a mortgagee, or any purchaser of the Building, or any other person
designated by Landlord, as of the date of such estoppel certificate, the
following: (i) that Tenant has accepted and is in possession of the Premises;
(ii) that, to the best of Tenant’s knowledge, all of Landlord’s Work has been
satisfactorily completed (or if not, specifying in detail the Landlord’s Work
not satisfactorily completed); (iii) whether or not this Lease is unmodified
and in full force and effect (or, if there are any modifications, specifying
such modifications in detail); (iv) whether or not there are any then existing
set-offs or defenses against the enforcement of the Lease against Tenant, and
if so specifying the same in detail; (v) the dates, if any, to which any rent
or other charges have been paid in advance; (vi) that Tenant has no knowledge
of any then uncured defaults under the Lease on the part of Landlord (or if
Tenant has such knowledge, specifying the same in detail); (vii) that Tenant
has no knowledge of any event having occurred that authorizes the termination
of this Lease by Tenant (or if Tenant has such knowledge, specifying the same
in detail); and (viii) the address to which notices to Tenant shall be sent.


 


34.                               COVENANTS OF LANDLORD.


 


Landlord covenants
that it has the right to make this Lease, and that if Tenant shall pay all Base
Rent and Additional Rent and perform all of Tenant’s obligations under this
Lease when due, Tenant shall, during the Term and any renewal terms subject to
the provisions of this Lease, quietly occupy and enjoy the Premises without
molestation or hindrance by Landlord; provided however, that this covenant and
any and all other covenants of Landlord contained in this Lease shall be
binding upon each Landlord only with respect to breaches occurring during its
ownership of the Landlord’s interest hereunder.


 


35.                               WAIVER OF JURY TRIAL.


 


Landlord and
Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by either of them against the other with respect to any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant hereunder, Tenant’s use or occupancy of the
Premises or any claim of injury or damage.


 


36.                               BROKERS.


 


Landlord and
Tenant each represents and warrants to the other that (except as hereinafter
set forth) neither of them has employed any broker in carrying on any
negotiations relating to this Lease. Landlord and Tenant shall each indemnify
and hold the other harmless from any claim for brokerage or other commission
arising from or out of any breach of the foregoing representation and warranty.
Any representation or statement by a leasing company, broker or any third party
(or employee thereof) engaged by Landlord as an independent contractor that is
made with regard to the Premises or the Building shall not be binding upon
Landlord nor shall serve as a modification of this Lease, and Landlord shall
have no liability therefor except to the extent such representation is also
contained herein or is approved in writing by Landlord.


 


37.                               CERTAIN RIGHTS RESERVED BY
LANDLORD.


 


Landlord shall
have the following rights, exercisable without notice and without liability to
Tenant for damage or injury to property, person or business and without
effecting an eviction, constructive or actual, or disturbance of Tenant’s use
and possession of the Premises or giving rise to any claim for set-off or
abatement of rent.


 


A.            To
change the Building’s name or street address.


 


B.            To install, affix, maintain and remove any and
all signs on the exterior or interior of the Building;


 


16

















 


provided, however, Landlord acknowledges that Tenant desires certain
signage, and Landlord agrees to cooperate as reasonably required to accomplish
this task at the sole cost and expense of Tenant and subject to the approval of
Landlord and applicable municipal authorities, Tenant shall be permitted to
install exterior signage on the Building at its sole cost and expense.


 


C.            To
designate and/or approve or disapprove, prior to installation, all window
shades, blinds, drapes, awnings, window ventilators and other similar
equipment, and to control all internal lighting, that may be visible from the
exterior of the Building.


 


D.            To
decorate or make repairs, alterations, additions or improvements, whether
structural or otherwise, in and about the Building or any part thereof, and for
such purposes to enter the Premises, and during the continuance of any such
work, to temporarily close doors, entry ways, common or public spaces and
corridors in the Building and to interrupt or temporarily suspend Building
obligations hereunder, so long as the Premises are reasonably accessible.
Landlord will coordinate with Tenant to minimize to a reasonable extent any
interruption to Tenant’s business.


 


E.             To
grant to anyone the exclusive right to conduct any business or render any
service in the Building, provided such exclusive right shall not operate to exclude
Tenant from the use expressly permitted herein.


 


F.             To
retain absolute dominion and control over all common or public space within the
Building notwithstanding any obligations of Tenant to pay rent or expenses for
a pro rata portion thereof.


 


38.                               NOTICES.


 


No notice, request, consent, approval, waiver or other
communication that may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing and is delivered in
person or sent by registered or certified mail, return receipt requested,
first-class postage prepaid, addressed as follows:


 


If to Landlord:       Gateway,
Inc.


610 Gateway Drive


North Sioux City, SD 57049


Attn: Lease Administration


 


With a copy to:    Gateway,
Inc.


7565 Irvine Center Drive


Irvine, California 92618


Attn: General Counsel and Senior Director, Workplace
Resources


 


If to Tenant:          MPC
Corporation


906 East Karcher Road


Nampa, Idaho


Attention: 
Chief Financial Officer


 


With a copy to:    Holland
& Hart, LLP


101 S. Capitol Blvd., Ste. 1400


Boise, ID 83702


Attn: Brian T. Hansen


 


or at any other address that may be given by one party to the other by
notice in accordance with this Section. Such notices and other communications,
if sent by registered or certified mail, shall be deemed to have been given at the
time of mailing. All payments of Rent and any other payments that may become
due from Tenant to Landlord under this Lease shall be made to Landlord at the
address specified in this Section, or to such other person or at such other
address as Landlord may, from time-to-time, designate in a notice to Tenant.
Any payments of Rent other than in cash shall not be considered rendered until
honored as cash by depository. If any Mortgagee shall notify Tenant that it is
the holder of a Mortgage affecting the Premises, no notice, request or demand
thereafter sent by Tenant to Landlord shall be effective unless and until a
copy of the same shall also be sent to such Mortgagee in the manner prescribed
in this Section and to such address as such Mortgagee shall designate.


 


39.                               LIMITATION ON LANDLORD LIABILITY.


 


Notwithstanding any provision to the contrary herein, Tenant shall look
solely to the estate and property of Landlord in and to the Building in the
event of any claim against Landlord arising out of or in connection with this
Lease, the relationship of Landlord and Tenant, or Tenant’s use of the
Premises, and Tenant agrees that the liability of


 


17

















 


Landlord arising out of or in connection with this Lease, the relationship
of Landlord and Tenant, to Tenant’s use of the Premises, shall be limited to
such estate and property of Landlord in and to the Building. No property owned
by any officer or partner of Landlord shall be subject to levy, execution or
other enforcement procedures for the satisfaction of any judgment (or other
judicial process) or for the satisfaction of any other remedy of Tenant arising
out of or in connection with this Lease, the relationship of Landlord and
Tenant or Tenant’s use of the Premises.


 


40.                               SIGNAGE.


 


Tenant shall have
the non-exclusive right to install Tenant’s Percentage Share of available
exterior signage for the Building. Except as provided in the foregoing sentence
or as otherwise approved in writing by Landlord in its sole and absolute
discretion, Tenant shall have no right to maintain signs in any location on the
exterior of the Building or in the interior of the Building that are visible in
any material respect from the exterior of the Building. The design, graphics,
material, style, color and other physical aspects of any permitted exterior
sign shall be subject to Landlord’s written approval, not to be unreasonably
withheld. Prior to placing or erecting any such signs, Tenant shall obtain and
deliver to Landlord a copy of any applicable municipal or other governmental
permits and approvals and comply with any applicable insurance requirements for
such signage. Tenant shall be responsible for the cost of any permitted sign,
including the fabrication, installation, maintenance and removal thereof and
the cost of any permits therefor. If Tenant fails to maintain its sign in good
condition or if Tenants fails to remove same upon the expiration or early
termination of this Lease, and repair and restore any damage caused by the sign
or its removal, Landlord may, do so at Tenant’s expense. Landlord shall have
the right to temporarily remove any exterior signs in connection with any
repairs or maintenance in or upon the Building, provided, however (a) Landlord
shall use reasonable efforts to cause such period of time during which such
signage is removed to be as short as possible, (b) Landlord shall remove and
re-install such signage at Landlord’s sole cost and expense, and (c) Landlord
shall be responsible to repair any damage (whether to such signage or the
Building) arising as a result of such removal. The term “sign” as used in this
Section shall include all signs, designs, monuments, displays, advertising
materials, logos, banner, projected images, pennants, decals, pictures,
notices, lettering, numerals or graphics. The term “available exterior signage”
shall mean such exterior signage allowed by applicable code or regulation,
without recourse to variance or special exception, or in the absence of any
such applicable code or regulation such exterior signage allowed by Landlord in
its reasonable discretion.


 


41.                               MISCELLANEOUS PROVISIONS.


 


A.            Benefit
and Burden. Except as otherwise expressly set forth herein, the provisions of
this Lease shall be binding upon, and shall inure to the benefit of, the
parties hereto and each of their respective successors and assigns.


 


B.            Governing
Law. This Lease shall be construed and enforced in accordance with the laws of
the State of South Dakota, without giving effect to the choice of law rules
thereof.


 


C.            No
Partnership. Nothing contained in this Lease shall be deemed or construed to
create a partnership or joint venture of or between Landlord and Tenant, or to
create any other relationship between the parties other than that of Landlord
and Tenant.


 


D.            No
Representations by Landlord. Neither Landlord nor any agent of Landlord has
made any representations or promises with respect to the Premises or the
Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are granted to Tenant except as herein expressly set
forth.


 


E.             Pronouns.
Feminine or neuter pronouns shall be substituted for those of the masculine
form, and the plural shall be substituted for the singular number, in any place
or places in this Lease in which the context may require such substitution or
substitutions. For convenience, the Landlord and Tenant have been referred to
in neuter forms in this Lease.


 


F.             Captions.
The captions used herein are for convenience of reference only and are not part
of this Lease, and shall in no way be deemed to define, limit, describe, or
modify the meaning of any provision of this Lease.


 


G.            Meaning
of Including. Whenever the word “including” is used herein it shall be deemed
to mean “including, but not limited to”.


 


H.            Invalidity
of Particular Provisions. If any term or provision of this Lease or
applications thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remaining terms and provisions of this Lease, or
the applications of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.


 


18

















 


I.              Counterparts.
This Lease has been executed in counterparts, but all counterparts shall
constitute one and the same legal document.


 


J.             Entire
Agreement. This Lease, and any exhibits and addenda attached hereto, contain
and embody the entire agreement of the parties hereto, and no representations,
inducements, or agreements, oral or otherwise between the parties not contained
in this Lease or in the exhibits or addenda, if any shall be of any force or effect.
This Lease may not be modified, changed or terminated in whole or in part in
any manner other than by an agreement in writing duly signed by the party to be
charged therewith.


 


K.            Mortgagee’s
Performance. Tenant shall accept performance of any of Landlord’s obligations
hereunder by any Mortgagee.


 


L.             Mortgagee’s
Liability. No Mortgagee not in possession of the Premises or the Building shall
have any liability hereunder.


 


M.           Recordation.
Upon either party’s request, the other party shall execute and acknowledge a
short form of this Lease for purposes of recordation. Tenant shall execute and
deliver to Landlord a quitclaim deed or other instrument reasonably necessary
to remove any such short form of this Lease from record title to Landlord’s
property within ten (10) days’ written request from Landlord following the
expiration or earlier termination of this Lease.


 


N.            SDN
List. Tenant hereby represents and warrants that neither Tenant nor any
officer, director, employee, partner, member or other principal of Tenant
(collectively, “Tenant Parties”) is listed as a Specially Designated National
and Blocked Person (“SDN”) on the list of such persons and entities issued by
the U.S. Treasury Office of Foreign Assets Control (“OFAC”). In the event
Tenant or any Tenant Party is or becomes listed as an SDN, Tenant shall be
deemed in breach of this Lease and Landlord shall have the right to terminate
this Lease immediately upon written notice to Tenant.


 


IN WITNESS WHEREOF,
Landlord and Tenant have executed this Lease under seal as of the day and date
first written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  GATEWAY, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ John Goldsberry

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   John Goldsberry

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   SVP & CFO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  MPC-PRO, LLC ,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Curtis Akey

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Curtis Akey

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   Vice President

  	
   

  
								



 


19

















 


EXHIBIT A


 


LEASING PLAN


 


Argentina Building


2nd Floor





 


A-1

















 


EXHIBIT B


 


DECLARATION BY LANDLORD AND
TENANT


AS TO DATE OF DELIVERY AND
ACCEPTANCE OF


POSSESSION, LEASE COMMENCEMENT
DATE, ETC.


 


Attached to and made part of the Lease dated the 4th day of September,
2007 entered into by and between Gateway, Inc.
as Landlord and MPC-PRO, LLC as Tenant.


 


Landlord and Tenant do hereby declare that possession of the Premises
was accepted by Tenant on the                                     
day of                                     ,
2007. The Lease is in full force and effect; as of the date hereof, Landlord
has fulfilled all of its obligations under the Lease required to be fulfilled
by Landlord on or prior to such date; and Tenant has no right of set-off
against any rentals. The Lease Commencement Date is hereby established to be                                     ,
2007. The Term of the Lease shall terminate on                                     .


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  GATEWAY, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  MPC-PRO, LLC ,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


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EXHIBIT C


 


RULES AND REGULATIONS


 


The following
rules and regulations have been formulated for the safety and well-being of all
the tenants of the Building. Adherence to these rules and regulations by each
and every tenant contributes to a safe and un-annoyed occupancy in the
Building. Any violations of these rules and regulations by any tenant which
continues after notice from Landlord shall be sufficient cause for termination,
at the option of the Landlord, of the tenant’s lease.


 


The Landlord may,
upon request by any tenant, waive the compliance by such tenant of any of the
following rules and regulations, provided that (a) no waiver shall be effective
unless signed by Landlord or Landlord’s authorized agent, (b) any such waiver
shall not relieve the tenant from the obligation to comply with such rule or
regulation in the future unless expressly consented to by Landlord, and (c) no
waiver of a rule or regulation granted to any tenant shall relieve any other
tenant from the obligation of complying with the rule or regulation unless such
other tenant has received a similar waiver in writing from Landlord.


 


1.             The sidewalks, entrances, passages, plazas,
courts, elevators, vestibules, stairways, corridors or halls or other parts of
the building not occupied by any tenant (hereinafter “Common Areas”) shall not
be obstructed or encumbered by any tenant or used for any purpose other than
ingress and egress to and from the tenant’s premises. Landlord shall have the
right to control and operate the Common Areas, and the facilities furnished for
the common use of the tenants in such manner as Landlord deems best for the
benefit of the tenants generally. No tenant shall permit the visit to its
premises of persons in such numbers or under such conditions as to interfere
with the use and enjoyment of other tenants of the Common Areas.


 


2.             No awnings or other projections shall be attached
to the outside walls of the Building without the prior written consent of
Landlord. No drapes, blinds, shades, or screens shall be attached to or hung
in, or used in connection with, any window or door of a tenant’s premises,
without the written consent of the Landlord. Such awnings, projections,
curtains, blinds, screens or other fixtures must be of a quality, type, design
and color acceptable to Landlord, and attached in the manner approved by
Landlord.


 


3.             No sign, advertisement, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or inside of the tenant’s premises to the building without the
prior written consent of Landlord, in the event of the violations of the foregoing
by any tenant. Landlord may remove same without any liability, and may charge
the expense incurred by such removal to the tenant or tenants violating this
rule. All interior signs on the doors and directory table shall be inscribed,
painted or affixed for each tenant by Landlord at the expense of such tenant,
and shall be of a size, color and style acceptable to Landlord.


 


4.             No show cases or other articles shall be put in
front of or affixed to any part of the exterior of the building, nor placed in
the Common Areas without the prior written consent of Landlord.


 


5.             The water and wash closets and other plumbing
fixtures shall not be used for any purposes other than those for which they
were constructed, and no sweepings, rubbish, rags or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by the tenant whose employees, agents, visitors or licensees shall have
caused the same.


 


6.             There shall be no marking, painting, drilling
into or other form of defacing or damage of any part of a tenant’s premises or
the building. No boring, cutting or stringing of wires shall be permitted. No
tenant shall construct, maintain, use or operate within its premises or
elsewhere within or on the outside of the building, any electrical device,
wiring or apparatus in connection with a loud speaker system or other sound
system.


 


7.             No tenant shall make, or permit to be made, any
disturbing noises or disturb or interfere with the occupants of the Building or
neighboring buildings or premises or those having business with them, whether
by the use of any musical instrument, radio, tape recorder, whistling, singing,
or any other way. No tenant shall throw anything out of the doors or windows or
down the corridors or stairs.


 


8.             No bicycles, vehicles or animals, birds or pets
of any kind shall be brought into or kept in or about a tenant’s premises. No
cooking shall be done or permitted by any tenant on its premises. No tenant
shall cause or permit any unusual or objectionable odors to originate from its
premises.


 


9.             No space in or about the Building shall be used
for the manufacture, storage, or sale or auction, of merchandise goods or
property of any kind.


 


C-1

















 


10.           No inflammable, combustible or explosive fluid,
chemical or substance shall be brought or kept upon a tenant’s premises.


 


11.           No additional locks or bolts of any kind shall be
placed upon any of the doors or windows by any tenant, nor shall any changes be
made in existing locks or the mechanism thereof. The doors leading to the
corridors or main halls shall be kept closed during business hours except as
they may be used for ingress and egress. Each tenant shall, upon the
termination of its tenancy, return to Landlord all keys used in connection with
its premises, including any keys to the premises, to rooms and offices within
the premises, to storage rooms and closets, to cabinets and other built-in
furniture, and to toilet rooms, whether or not such keys were furnished by
Landlord or procured by tenant, and in the event of the loss of any such keys,
such tenant shall pay to Landlord the cost of replacing the locks. On
termination of a tenant’s lease, the tenant shall disclose to Landlord the
combination of all locks for safes, safe cabinets, and vault doors, if any
remaining in the premises.


 


12.           All removals, or the carrying in or out of the
safes, freight, furniture or bulky matter of any description, must take place
in such manner and during such hours as Landlord may require. Landlord reserves
the right to inspect all freight to be brought into the building and to exclude
from the Building all freight which violates any of these Rules and Regulations
of the Lease.


 


13.           Any person employed by a tenant to do janitorial
work within the tenant’s premises must obtain Landlord’s consent prior to
commencing such work, and such person shall, while in the building and outside
of said premises, comply with all instructions issued by the superintendent of
the building. No tenant shall engage or pay any employees on the tenant’s
premises, except those actually working for such tenant on said premises.


 


14.           No tenant shall purchase spring water, ice,
coffee, soft drinks, towels, or other like merchandise or service from any company
or person whose repeated violations of Building regulations have caused, in
Landlord’s opinion, a hazard or nuisance to the Building and/or its occupants.


 


15.           Landlord shall have the right to prohibit any
advertising by any tenant which, in Landlord’s opinion, tends to impair the
reputation of the Building or its desirability as a building for offices, and
upon written notice from Landlord, such tenant shall refrain from or
discontinue such advertising.


 


16.           Landlord reserves the right to exclude from the
Building at all times any person who is not known or does not properly identify
himself to the Building.


 


17.           Each tenant, before closing and leaving its
premises at any time, shall see that all lights are turned off.


 


18.           Building employees shall not perform any work or
do anything outside of their regular duties, unless under special instructions
from the management of the Building.


 


19.           Canvassing, soliciting and peddling in the
Building is prohibited and each tenant shall cooperate to prevent the same.


 


20.           No water cooler, plumbing or electrical fixture
shall be installed by the tenant without Landlord’s prior written consent.


 


21.           There shall not be used in any space, or in the
public halls of the Building, either by any tenant or by jobbers or others in
the delivery or receipt of merchandise, any hand trucks, except those equipped
with rubber tires and side guards.


 


22.           Access plates to underfloor conduits shall be
left exposed. Where carpet is installed, carpet shall be cut around access
plates.


 


23.           Mats, trash or other objects shall not be placed
in the public corridors.


 


24.           Drapes installed by Landlord for the use of any
tenant or drapes installed by tenant which are visible from the exterior of the
building must be cleaned by such tenant at least once a year, without notice,
at such tenant’s own expense.


 


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EXHIBIT D


 


ESTOPPEL CERTIFICATE


 


                                                    ,
20        


Re:          Lease
Dated:


 


Lease
Commencement Date:


 


Landlord:


 


Tenant:


 


Premises:


 


The undersigned,
Tenant in the above-described Lease, hereby confirms, as of the date hereof,
the following:


 


1. That it is in
full and complete possession of the Premises, such possession having been
delivered by the Landlord and having been accepted by the undersigned, and that
the Tenant is paying Base Rent in monthly installments of
$                     ,
and that rents have been paid
through                                               ,
20        .


 


2. That the improvements
and space required to be furnished by the terms of the Lease have been
completed in all respects to the satisfaction of the undersigned and are open
for the use of the undersigned, its customers, employees and invitees.


 


3. That all duties
of an inducement nature required of the Landlord in said Lease have been
fulfilled.


 


3. That said Lease
is a bona fide Lease and in full force and effect; that there is no existing
default on the part of the Landlord or the Tenant in the terms thereof (or if
there are any defaults, specifying each such default); and that said Lease has
not been amended, modified, supplemented or superseded except as follows (if
none, so state):


 


4. That no rents
have been prepaid except as provided by said Lease, that, to the best of the
undersigned’s knowledge, the undersigned does not now have or hold any claim
against Landlord which might be set off or credited against future accruing
rents.


 


5. That the
undersigned has received no notice of a prior sale, transfer, assignment,
hypothecation or pledge of the said Lease or of the rents secured therein,
except that it has received notice of an Assignment of Leases and Rents (as
additional security) dated
the                day
of                        ,
20        , to you.


 


8. That the
undersigned will not enter into any modification, amendment, or supplement to
the Lease with Landlord without the prior written consent and approval of
Lender.


 


9. That rents
provided in said Lease commenced to accrue on
the        day
of                                ,
20        


 


10. That the
undersigned has not subordinated and shall not subordinate its Lease to the
lien of any other mortgage or deed of trust without the prior written consent
and approval of Lender.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Tenant

  



 


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  STATE OF

  	
  )

  
	
   

  	
   

  
	
   

  	
  ) ss.

  
	
   

  	
   

  
	
  COUNTY OF

  	
  )

  



 


SUBSCRIBED AND SWORN TO before me this               
day of                                           ,
20        .


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary Public

  	
   

  
	
   

  	
   

  	
   

  
	
  My Commission expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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EXHIBIT E


 


FAIR MARKET RENT


 


The term “Market
Rent” shall mean the fair market rental value for the Premises at the time in
question which Landlord sets forth in a notice (hereinafter referred to as the
“Market Rent Notice”) to Tenant. No later than thirty (30) days after Tenant
may exercise Tenant’s option to extend the Lease for the Option Term, Landlord
shall send the Market Rent Notice to Tenant for said Option Term and shall
specify in the Market Rent Notice for each of the five (5) years contained in
the Option Term as applicable. In the event that Tenant shall, in good faith,
disagree with the Market Rent set forth in the Market Rent Notice established
by Landlord for the Premises, Tenant shall, within ten (10) days after receipt
of the Market Rent Notice, furnish Landlord with a written explanation in
reasonable detail of the basis for Tenant’s good faith disagreement, the amount
which, in Tenant’s good faith opinion, is the Market Rent for each of the five
(5) years contained in the Option Term (hereinafter referred to as the
“Tenant’s Notice”). If Tenant’s Notice is not received by Landlord within said
ten (10) day period, the Market Rent shall be the Market Rent set forth in the
Market Rent Notice to Tenant. If Tenant’s notice is received by Landlord within
said ten (10) day period, the Market Rent for the Premises shall be established
as follows:


 


1.             No
later than twenty (20) days following the receipt of the Market Rent Notice
from Landlord, Tenant shall select an individual as an appraiser of its choice
and give Landlord written notice of such appraiser’s name, address and
telephone number.


 


2.             Within
ten (10) days after receipt of such notice by Landlord, Landlord shall select
an appraiser of its choice and give Tenant written notice of such appraiser’s
name, address and telephone number.


 


3.             The
two appraisers so selected by Landlord and Tenant shall then select an
individual as a third appraiser within fifteen (15) days after receipt by
Tenant of Landlord’s notification as to its selection of an appraiser, and
furnish Landlord and Tenant written notice of such appraiser’s name, address
and telephone number.


 


4.             All
appraisers selected pursuant to this Paragraph shall be M.A.I. appraisers,
unless Landlord and Tenant shall otherwise agree in writing, each having at
least ten (10) years experience with commercial property in Union County, South
Dakota. Each of the three (3) selected appraisers shall then determine the fair
rental value of the Leased Premises for each of the five (5) years of the
Option Term, as applicable and the Market Rent hereunder for each of such five
(5) years contained in the Option Term, as applicable, shall be determined to
be the average of the three (3) appraisals for each such years; provided, in no
event shall Market Rent for the first year of the Option Term be deemed to be
less than the Base Rent for the last year of the Renewal Term, and in no event
shall the Market Rent for any successive year of the Option Term be less than
the Base Rent for the prior year.


 


5.             If
the procedure set forth in above in (a)(i) through and including (a)(iv) is
implemented, and if for any reason whatsoever (including, without limitation,
the institution of any judicial or other legal proceedings), the Market Rent
for any Option Term has not been finally determined prior to the first day of
said Option Term, then the amount of the Market Rent set forth by Landlord in
good faith in the Market Rent Notice shall be the Market Rent for all purposes
under the Lease until such time as the Market Rent is finally determined as set
forth above, and Landlord and Tenant shall, by appropriate payments to the
other, correct any overpayment or underpayment which may have been made prior
to such final determination.


 


6.             If
Landlord fails to select its appraiser in the manner and within the time
specified in (a)(ii) above, then the Market Rent for the Option Term shall be
the Market Rent set forth in Tenant’s Notice.


 


7.             If
Tenant fails to select its appraiser in the manner and within the time
specified in (a)(i) above, then the Market Rent for the Option Term shall be
the Market Rent set forth in the Market Rent Notice.


 


8.             If
the appraisers selected by Landlord and Tenant fail to appoint the third
appraiser within the time and in the manner prescribed in (a)(iii) above, then
Landlord and/or Tenant shall promptly apply to the local office of the American
Arbitration Association for the appointment of the third appraiser.


 


9.             All
fees, costs and expenses incurred in connection with obtaining the appraisals
and the arbitration procedure set forth in this section shall be shared equally
by Landlord and Tenant; however, Landlord and Tenant shall each bear their own
attorneys’ fees incurred with respect to this procedure.


 


E-1