Exhibit 99.11
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.
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
– 1 –
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")
|
|
|
|
|
– 2 –
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 (5 th ) 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
|
– 3 –
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.
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
– 4 –
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.
– 5 –
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.
– 6 –
|
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.
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.
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
con