EXHIBIT 10.26
LEASE AGREEMENT
THIS LEASE AGREEMENT dated October 18, 1999 by and between Principal Life
Insurance Company, c/o Principal Capital Management, LLC, a Delaware limited
liability company, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000, ("Landlord"),
and Teledigital Inc., a Minnesota corporation, whose address for the purpose of
this lease ("Lease") shall be 0000 Xxxx 00xx Xxxxxx, Xxxxx 0, Xxxxxxxxxxx, XX
00000 , ("Tenant").
IT IS AGREED AS FOLLOWS:
1. DEMISE.
Landlord does hereby lease to Tenant and Tenant hereby rents the
premises ("Premises") described as: 5,106 square feet of net rentable
area consisting of approximately 4,436 square feet of office space and
670 square feet of warehouse space located at 0000 Xxxx 00xx Xxxxxx,
Xxxxx 0, Xxxxxxxxxxx, XX 00000 which, more particularly, includes the
space and Premises shown on the site plan attached hereto and marked
Exhibit "A".
Improvements. Landlord or shall prepare and furnish the drawings and
specifications as needed for all improvements set forth in Exhibit "B"
which is attached hereto and made a part hereof. The total cost for
space planning, construction drawings, the actual construction and
construction management is to be paid by Landlord up to a maximum
amount of $0.00 ("Allowance"). In the event total costs exceed the
Allowance, Tenant shall be responsible for paying to Landlord within 30
days of the lease commencement date, costs exceeding the Allowance or,
at the sole option of Landlord, execute a lease amendment providing for
an increase in Base Rent over the lease term equal to the costs that
exceed the Allowance when amortized at 14 %.
2. TERM.
The term of this Lease shall be for a period of Five (5) years,
commencing on the 1st day of January, 2000 and ending at midnight on
the 31st day of December, 2004 ("Lease Term"). Notwithstanding said
commencement date, if for any reason Landlord cannot deliver possession
of the leased Premises to the Tenant on or by January 1, 2000, Tenant
shall not be obligated to pay rent until possession of the Premises is
tendered to Tenant. In such event, the term of the Lease shall be
extended so that the term remains Sixty (60) months. If the leased
Premises are delivered on a date other than the 1st day of the month,
rent for that month shall be prorated and the term extended for the
full term from the first day of the following month. In the event that
the delay of delivery of possession results from Tenant's failure to
perform work for which Tenant is responsible, or fails to furnish or
approve, as agreed, the plans and specifications as provided above, or
fails to make timely selections of materials, color choices or other
matters for which Tenant is responsible, the rent shall, nonetheless,
commence on the commencement date stated above. If Tenant occupies the
Premises prior to said commencement date, such occupancy shall be
subject to all provisions hereof and shall not advance the termination
date, and Tenant shall pay rent for such period at the initial monthly
rate set forth below.
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EXHIBIT 10.26
3. RENT.
(A) Rent. Tenant shall pay for the use and occupancy of the Premises a
base rental (Rent) sum, payable in equal monthly installments on the
first day of each month in advance without demand during the Lease
Term. Tenant's base rental sum during the Lease shall be paid as
follows:
Monthly
-------
January 1, 2000 - December 31, 2004 $4,106.08
Rent of any period during the Lease Term hereof which is less than one
month shall be a pro-rata portion of the monthly installment. Rent
shall be payable in lawful money of the United States to Landlord at
the address stated herein or to such other persons or at such other
places as Landlord may designate in writing.
(B) Place of Payment. All such rentals shall be paid to Landlord at CB
Xxxxxxx Xxxxx, XX Xxx 0000, XX 0000-0000, Xxxxxxxxxxx, XX 00000-0000 or
at such place as Landlord may designate from time to time, in writing
addressed to Tenant.
(C) Late Charge. Tenant hereby acknowledges that late payment by Tenant
of Rent or other sums due thereunder will cause Landlord to incur costs
not contemplated by this Lease. Therefore, if any installment of Rent
or any other sum due from Tenant shall not be received by Landlord
within ten (10) days after such amount is due, Tenant shall pay to
Landlord a late charge of six percent (6%) of such overdue amount.
Acceptance of such late charge by Landlord shall in no event constitute
a waiver of Tenants default with respect to such overdue amount or
prevent Landlord from exercising any other right or remedy available to
Landlord.
(D) Receipt. Receipt is hereby acknowledged of the sum of $0.00 in
payment of the monthly base and operating expense Rents for the first
month of the Lease Term.
(E) Security Deposit. Tenant shall deposit with Landlord upon execution
hereof $5,752.76 as security for Tenant's faithful performance of
Tenant's obligations hereunder. If Tenant fails to pay Rent or other
charges due hereunder or otherwise defaults with respect to any
provision of the Lease, Landlord may use, apply or retain all or any
portion of said deposit for the payment of any Rent or other charge in
default or for the payment of any other sum to which Landlord may
become obligated by reason of Tenant's default, or to compensate
Landlord for any loss or damage which Lessor may suffer thereby. If
Landlord so uses or applies all or any portion of said deposit, Tenant
shall within ten (10) days after written demand therefor deposit cash
with Landlord in an amount sufficient to restore said deposit to the
full amount herein above stated and Tenant's failure to do so shall be
a material breach of this Lease. If the monthly Rent shall, from time
to time increase during the Lease Term, Tenant shall thereupon deposit
with Landlord additional security deposit so that the amount of
security deposit held by Landlord shall at all times bear the same
proportion to current rent as the original security deposit bears to
the original monthly Rent set forth in Paragraph 3A
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EXHIBIT 10.26
hereof. Landlord shall not be required to keep said deposit separate
from its general accounts. If Tenant performs all of Tenant's
obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Landlord shall be returned, without payment
of interest or other increment for its use to Tenant (or at Landlord's
option, to the last assignee, if any, of Tenant's interest hereunder)
at the expiration of the Lease Term hereof and after Tenant has vacated
the Premises. No trust relationship is created herein between Landlord
and Tenant with respect to said Security Deposit.
Tenant hereby agrees not to look to any mortgagee as mortgagee,
mortgagee-in-possession or successor in title to the Premises for
accountability for any security deposit required by Landlord hereunder,
unless said sums have actually been received by said mortgagee as
security for Tenant's performance of this Lease. Landlord may deliver
the funds deposited hereunder by Tenant to the purchaser of Landlord's
interest in the Premises, in the event that such interest is sold, and
thereupon Landlord shall be discharged from any further liability with
respect to said security deposit.
(F) Pro Rata Share. Tenant's proportionate share shall be the
percentage which the square footage of the Premises bears to the total
square footage of the following-described building(s) Olympia Business
Center (54,794 square feet)
4. PERMITTED USE.
Tenant covenants that the Premises will be used as general office and
warehouse ("Permitted Use") together with the incidental activities of
Tenant, its affiliated companies or other subsidiary companies and for
no other use or purpose. Tenant further covenants that the Premises
will not be used or occupied for any unlawful purposes. Tenant agrees
to and shall use the Premises solely for the purpose of conducting the
Permitted Use and for no other business or purpose. Tenant also agrees
not to conduct any catalogue, mail or telephone order sales in or from
the Premises, except of merchandise which Tenant is permitted to sell
"over the counter" in the Premises. Tenant agrees to conduct Tenant's
business in the Premises under Tenant's Trade Name, which Tenant
represents that it has the right to use. Tenant acknowledges that the
Permitted Use is not a use granted exclusively to Tenant and that
Landlord reserves the right to lease premises in the building to others
for the same or a similar Permitted Use. Tenant further acknowledges
that it has received no written or oral inducements from Landlord or
any of Landlord's representatives concerning this Lease (other than as
specifically set forth herein) or that Tenant will be granted any such
exclusive rights. Tenant further covenants that the Premises will not
be used or occupied for any unlawful purposes. The Tenant will not make
or permit to be made any use of the Premises or any part thereof which
would violate any of the covenants, agreements, terms, provisions and
conditions of this Lease or which directly or indirectly is forbidden
by public law, ordinance or governmental regulation; or make or permit
any use of the Premises which may be dangerous, noxious or offensive or
create or maintain any nuisance or disturbance in, at or on the
Premises; or make or permit any use of the Premises which may
invalidate, or increase the premium cost of any policy of insurance
carried on the Building and
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EXHIBIT 10.26
environs and their operation, or any use which, in Landlord's sole
judgement, shall impair the character, reputation or appearance of the
Building and environs.
5. OPERATING EXPENSES.
TAXES, UTILITIES, REPAIRS, MAINTENANCE AND REPLACEMENT
(1) Taxes
(a) The Landlord shall pay all taxes payable during the Lease
Term before the same are delinquent.
(b) If in the future a tax or other charge on Rents shall be
imposed by any governing body having the authority to impose
such tax or charge, then such tax or charge shall likewise be
the obligation of the Landlord.
(c) As used herein, the term "taxes" shall mean real estate
taxes, assessments (whether they be general or special), sewer
rents, rates and charges, transit and transit district taxes,
taxes based upon the receipt of rent, and any other federal,
state or local governmental charge, general, special, ordinary
or extraordinary (but not including income or franchise taxes
or any other taxes imposed upon or measured by Landlord's
income or profits, except as provided herein), which may now
or hereafter be levied, assessed or imposed against the
Premises.
(2) Tenant shall pay all utility bills incurred for which the Tenant is
not separately metered including but not limited to water, gas,
electricity, fuel, light, heat and power bills.
(3) Landlord shall be responsible for providing the following: (a)
trash removal for the building common areas subject to Paragraph 5.3;
(b) any vendor services to the building common areas; (c) landscaping;
(d) all labor costs and supply costs involved in the operation of the
building; (e) all other services of any kind and nature which may be
used in or upon the Premises (except as provided for elsewhere in this
Lease); (f) management fees paid for the management of the Premises;
(g) and the repair, maintenance and replacement of the building and
improvements as follows: (i) the roof; (ii) all interior and exterior
components of the building and improvements both structural or
otherwise; (iii) parking lot, (iv) sidewalks, alleys and any and all
access drives, including the removal of snow and ice therefrom; (v)
common area heating and air conditioning equipment, lines and fixtures;
(vi) plumbing equipment, lines and fixtures, including but not limited
to fire sprinkler and fire control systems; (vii) electrical equipment,
lines and fixtures; (viii) all ingress-egress doors; (ix) plate glass;
(x) all utility lines and services; (xi) preventive maintenance to all
the building heating and air conditioning systems;
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EXHIBIT 10.26
(xii) and any and all other repairs maintenance and replacements to the
building and improvements during the term of this Lease.
(4) Landlord shall be responsible for providing Property and Liability
Insurance for the Premises. Should Landlord choose to self-insure, the
cost of maintaining such self insurance shall be considered an expense
of the property. In no event will the cost exceed the cost of
maintaining first dollar coverage.
(5) Tenant, at Tenant's sole expense, shall comply with all laws,
rules, orders, ordinances, directions, regulations and requirements of
federal, state, county, and municipal authorities now in force or which
may hereafter be in force, which shall impose any duty upon the
Landlord or Tenant with respect to the use, occupation or alteration of
the Premises.
(6) All items listed in this paragraph 5(1) through paragraph 5(4) and
paragraph 5(6) shall hereinafter be referred to as "Operating
Expenses."
6. ADDITIONAL RENT (NET CLAUSE).
It is understood that the Rent set forth in paragraph 3 of the Lease
was negotiated in anticipation that the Tenant pays for a pro-rata
share of the Operating Expenses not paid directly by Tenant, defined in
paragraph 5 of the Lease. Therefore, in order that Rent payable
throughout the term of this Lease shall reflect such costs, Tenant
shall pay its pro-rata share of the Operating Expenses defined in
paragraph 5 which are estimated to be $3.67 per square foot per annum
or One thousand Five Hundred Sixty One and 59/100 ($1,561.59) per month
in 1999. At the beginning of the Lease Term and within 60 days after
the first day of each calendar year, Landlord shall furnish to Tenant
an estimate of Tenant's pro-rata share of Operating Expenses, not paid
directly by Tenant, defined in Paragraph 5 for the ensuing calendar
year. Tenant shall pay to Landlord 1/12th of said estimate at the same
time and place as the base rent is to be paid pursuant to paragraph 3,
above. Landlord will furnish a statement of the actual cost with
respect to the reimbursable expenses no later than sixty (60) days
following the calendar year-end including the year following the year
in which the Lease terminates. In the event that Landlord is, for any
reason, unable to furnish the accounting for the prior year within the
time specified above, the Landlord will furnish such accounting as soon
thereafter as practicable with the same force and effect as the
statement would have had if delivered within the time specified above.
Tenant will pay any deficiency to Landlord as shown by such statement
within thirty (30) days after receipt of statement. If the total amount
paid by Tenant during any calendar year exceeds the actual amount of
its share of the Operating Expenses due for such calendar year, the
excess will be refunded by Landlord within thirty (30) days of the date
of the statement. Landlord will keep books and records showing the
Operating Expenses in accordance with generally accepted accounting
principles. Upon five (5) business days notice, Tenant shall have the
right to inspect the books and records at the office of the Landlord or
its Manager.
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EXHIBIT 10.26
7. REPAIRS AND MAINTENANCE
Notwithstanding anything to the contrary contained herein, the Tenant
will keep, maintain and preserve the Premises in a first class
condition. The Tenant at its sole cost and expense will provide
janitorial and window washing for the interior of the Premises. In
addition, Tenant shall be responsible for all utility services for
which the Tenant is separately metered. When and if needed, at the
Tenant's sole cost and expense, the Tenant will make all interior
repairs and replacements including but not limited to interior walls,
doors and windows, floors, floor coverings, light bulbs, plumbing
fixtures, heating/air conditioning systems, hot water systems, and
electrical fixtures. Tenant shall also make all repairs and
replacements to Tenant's overhead garage and exterior pedestrian doors.
The Tenant will also repair and replace at its sole cost and expense
any broken windows and/or damage to the building or Premises caused by
the negligence of the Tenant or its employees, agents, guests or
invitees during the Lease Term hereof. The above repairs, replacements,
and/or services must be performed by an approved contractor of the
Landlord. Should Tenant fail to perform all interior repairs and
replacements to Tenant's Premises such repairs may be performed by the
Landlord and charged to the Tenant at the Tenant's sole cost and
expense. Tenant will comply with all ordinances of the City of
Bloomington, rules and regulations of the Board of Health and the laws
of the State of Minnesota. The tenant is also responsible for
compliance with all laws, rules and regulations of any governmental
authority required of either the Landlord or the Tenant relative to the
repair, maintenance and replacement in the Premises.
8. SORTING AND SEPARATION OF REFUSE AND TRASH.
(A) The Tenant covenants and agrees, as its sole cost and expense, to
comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments,
commissions and boards regarding the collection, sorting, separation
and recycling of waste products, garbage, refuse and trash. The Tenant
shall sort and separate waste products, garbage, refuge and trash into
such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by the Landlord. Such separate
receptacles may, at the Landlord's option, be removed from the Premises
in accordance with a collection schedule prescribed by law.
(B) The Landlord reserves the right to refuse to collect or accept from
the Tenant any waste products, garbage, refuse or trash that is not
separated and sorted as required by law, and to require the Tenant
arrange for such collection at the Tenant's sole cost and expense,
utilizing a contractor satisfactory to the Landlord. The Tenant shall
pay all costs, expenses, fines, penalties or damages that may be
imposed on the Landlord or the Tenant by reason of the Tenant's failure
to comply with the provisions of this paragraph 8B, and, at the
Tenant's sole cost and expense, shall indemnify, defend and hold the
Landlord harmless (including legal fees and expenses) from and against
any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to the Landlord.
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EXHIBIT 10.26
9. HAZARDOUS WASTE.
The term "Hazardous Substances", as used in this lease shall mean
pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the use and/or the removal of which is required or the use
of which is restricted, prohibited or penalized by any "Environmental
Law", which term shall mean any federal, state or local law, ordinance
or other statute of a governmental or quasi-governmental authority
relating to pollution or protection of the environment. Tenant hereby
agrees that (A) no activity will be conducted on the Premises that will
produce any Hazardous Substance, except for such activities that are
part of the ordinary course of Tenant's business activities (the
"Permitted Activities") provided said Permitted Activities are
conducted in accordance with all Environmental Laws and have been
approved in advance in writing by Landlord; Tenant shall be responsible
for obtaining any required permits and paying any fees and providing
any testing required by any governmental agency; (B) the Premises will
not be used in any manner for the storage of any Hazardous Substances
except for the temporary storage of such materials that are used in the
ordinary course of Tenant's business (the "Permitted Materials")
provided such Permitted Materials are properly stored in a manner and
location meeting all Environmental Laws and approved in advance in
writing by Landlord; Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required
by any governmental agency; (C) no portion of the Premises will be used
as a landfill or a dump; (D) Tenant will not install any underground
tanks of any type; (E) Tenant will not allow any surface or subsurface
conditions to exist or come into existence that constitute, or with the
passage of time may constitute a public or private nuisance; (F) Tenant
will not permit any Hazardous Substances to be brought onto the
Premises, except for the Permitted Materials described above, and if so
brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required cleanup procedures
shall be diligently undertaken pursuant to all Environmental Laws.
Landlord or Landlord's representative shall have the right but not the
obligation to enter the Premises for the purpose of inspecting the
storage, use and disposal of Permitted Materials to ensure compliance
with all Environmental Laws. Should it be determined, in Landlord's
sole opinion, that said Permitted Materials are being improperly
stored, used, or disposed of, then Tenant shall immediately take such
corrective action as requested by Landlord. Should Tenant fail to take
such corrective action within 24 hours, Landlord shall have the right
to perform such work and Tenant shall promptly reimburse Landlord for
any and all costs associated with said work. If at any time during or
after the term of the Lease Term, the Premises are found to be so
contaminated or subject to said conditions, Tenant shall diligently
institute proper and thorough cleanup procedures at Tenant's sole cost,
and Tenant agrees to indemnify, defend and hold harmless Landlord, its
lenders, any managing agents and leasing agents of the Premises, and
their respective agents, partners, officers, directors and employees,
from all claims, demands, actions, liabilities, costs, expenses,
damages (actual or punitive) and obligations of any nature arising from
or as a result of the use of the Premises by Tenant. The foregoing
indemnification and the responsibilities of Tenant shall survive the
termination or expiration of this Lease.
During the Lease Term, Tenant shall promptly provide Landlord with
copies of all summons, citations, directives, information inquiries or
requests, notices of potential
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EXHIBIT 10.26
responsibility, notices of violation or deficiency, orders or decrees,
claims, complaints, investigations, judgments, letters, notice of
environmental liens, and other communications, written or oral, actual
or threatened, from the United States Environmental Protection Agency,
Occupational Safety and Health Administration, The State of Minnesota
Environmental Protection Agency or other federal, state or local agency
or authority, or any other entity or individual, concerning (i) any
Hazardous Substance and the Premises; (ii) the imposition of any lien
on the Premises; or (iii) any alleged violation of or responsibility
under any Environmental Law.
10. INSURANCE.
(A) INSURANCE BY LANDLORD
Landlord shall, during the Lease Term, procure and keep in force the
following insurance, the cost of which may be deemed as additional Rent
payable, by Tenant pursuant to Paragraph 5 or Paragraph 6:
(1) PROPERTY INSURANCE. "All Risk" property insurance,
including, without limitation, coverage for earthquake and
flood; and machinery (if applicable); sprinkler damage;
vandalism; malicious mischief. Such Insurance shall not cover
Tenant's equipment, trade fixtures, inventory, fixtures or
personal property located on or in the Premises;
(2) LIABILITY INSURANCE. Commercial general liability
(lessor's risk) insurance against any and all claims for
bodily injury, death or property damage occurring in or about
the Building or the Land. Such insurance shall have a combined
single limit of not less than One Million Dollars ($1,000,000)
per occurrence per location with a Two Million Dollar
($2,000,000) aggregate limit; and
(3) OTHER. Such other insurance as Landlord deems necessary
and prudent.
(B) INSURANCE BY TENANT
Tenant shall, during the Lease Term, procure and keep in force
the following insurance:
(1) Personal Property Insurance. "All Risk" property
insurance, including, without limitation, coverage for
earthquake and flood; boiler and machinery (if applicable);
sprinkler damage; vandalism; malicious mischief on all
equipment, trade fixtures, inventory, fixtures and personal
property located on or in the Premises, including fixtures
hereinafter constructed or installed on the Premises. Such
insurance shall be in an amount equal to the full replacement
cost of the aggregate of the foregoing and shall provide
coverage comparable to the coverage in the standard ISO all
risk form, when such form a supplemented with the coverages
required above.
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EXHIBIT 10.26
(2) Liability Insurance. Commercial general liability
insurance for the mutual benefit of Landlord and Tenant,
against any and all claims for personal injury, death or
property damage occurring in, or about the Premises (and
Tenant's operations on the Premises), or arising out of
Tenant's or Tenant's agents' use or occupancy of the Premises.
Such insurance shall have a combined single limit of not less
than One Million Dollars ($1,000,000) per occurrence per
location with Two Million Dollars ($2,000,000) aggregate
limit. Such insurance shall contain a cross-liability
(severability of interests) clause and an extended ("broad
form") liability endorsement, including contractual coverage.
The minimum limited specified above are the minimum amounts
required by Landlord, and may be revised by Landlord from time
to time to meet changed circumstances, including without
limitation to reflect (i) changes in the purchasing power of
the dollar, (ii) changes indicated by the amount of
plaintiff's verdicts in personal injury actions in the State
of Minnesota or (iii) changes consistent with the ---------
standards required by other landlords in the county in which
the Premises are located. Such liability insurance shall be
primary and not contributing to any insurance available to
Landlord, and Landlord's insurance (if any) shall be in excess
thereto.
(3) Other. Such other insurance as required by law, including,
without limitation, workers' compensation insurance.
(4) Form of the Policies. The policies required to be
maintained by Tenant pursuant to Paragraphs 10(B)(l), (2), and
(3) above shall be with companies rated A10 or better in Best
Insurance Guide, licensed to do business in the State of
Minnesota and domiciled in USA, on forms, with deductible
amounts (if any), and loss payable clauses satisfactory to
Landlord, shall include Landlord and the beneficiary or
mortgagee of any deed of trust or mortgage encumbering the
Premises as additional insureds, and shall provide that such
parties may, although additional insureds, recover for any
loss suffered by Tenant's negligence. Certified copies of
policies or certificates of insurance shall be delivered to
Landlord prior to the Commencement Date; a new policy or
certificates shall be delivered to Landlord at least thirty
(30) days prior to the expiration date of the old policy.
Tenant shall have the right to provide insurance coverage
which it is obligated to carry pursuant to the terms hereof in
a blanket policy, provided such blanket policy expressly
affords coverage to the Premises and to Tenant as required by
this Lease. Tenant shall obtain a written obligation on the
part of Tenant's insurer(s) to notify Landlord and any
beneficiary or mortgagee of a deed of trust or mortgage
encumbering the Premises in writing of any delinquency in
premium payments and at least thirty (30) days prior to any
cancellation or modification of any policy.
(5) An amount equal to five percent (5%) of the monthly
minimum base Rental shall be charged as additional Rent for
each month in which Tenant
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EXHIBIT 10.26
fails to deliver to Landlord a current certificate(s)
evidencing that the insurance required hereunder is being
maintained. Each such policy and certificate shall provide for
at least thirty (30) days prior written notice to Landlord in
the event of cancellation.
(C) FAILURE BY TENANT TO OBTAIN INSURANCE.
If Tenant does not take out the insurance required pursuant to
Paragraph 10(B) or keep the same in full force and effect,
Landlord may, but shall not be obligated to take out the
necessary insurance and pay the premium therefor, and Tenant
shall repay to Landlord, as additional Rent, the amount so
paid promptly upon demand. In addition, Landlord may recover
from Tenant and Tenant agrees to pay, as additional Rent, any
and all reasonable expenses (including attorneys' fees) and
damages which Landlord may sustain by reason of the failure to
Tenant to obtain and maintain such insurance, it being
expressly declared that the expenses and damages of Landlord
shall not be limited to the amount of the premiums thereon.
(D) SUBROGATION.
In the event of loss or damage to the Premises, each party
will look first to any insurance in its favor before making
any claim against the other party. The Tenant will obtain for
each policy in effect a provision permitting waiver of any
claim against the Landlord for loss or damage within the scope
of the insurance. In addition, each party, its agents,
employees or guests to the extent permitted, for itself and
its insurers waives all such insured claims against the other
party.
11. DAMAGE OR RESTORATION.
If, prior to or during the Lease Term, or any extension thereof, the
Premises or the building of which the Premises may be a part, shall be
so damaged or destroyed by fire or other casualty so as to render them
untenantable for the purposes set forth in Paragraph 4 hereof, then
Landlord, at its sole option, shall have the right to cancel and
terminate this Lease. If not terminated, then Landlord shall repair and
restore the Premises with all reasonable speed to substantially the
same condition as immediately prior to such damage or destruction, and
the Rent or a just and proportionate part thereof, according to
Tenant's ability to utilize the Premises in its damaged condition,
shall be abated until the Premises shall have been repaired and
restored by Landlord. But if the Premises shall be so lightly damaged
by fire or other casualty as not to be rendered untenantable, then
Landlord agrees to repair the Premises with reasonable promptness and
the rent accrued and accruing, shall not cease. "Untenantable" Premises
shall be such as to not allow Tenant to transact and effectuate its
operations in the ordinary course of business.
12. INDEMNIFICATION.
Tenant shall indemnify, hold harmless, and defend Landlord (except for
Landlord's gross negligence or willful misconduct) against all claims,
losses or liabilities for injury or death to any person or for damage
to or loss of use of any property arising out of any occurrence in, on
or about the Building or land, if caused or contributed to by Tenant or
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EXHIBIT 10.26
Tenant's agents, or arising out of any occurrence in, upon or at the
Premises or on account of the use, condition, occupational safety or
occupancy of the Premises. It is the intent of the parties hereto that
the indemnity contained in this Paragraph shall not be limited or
barred by reason of any negligence on the part of Landlord or
Landlord's agents, except as expressly provided herein. Such
indemnification shall include and apply to attorneys' fees,
investigation costs, and other costs actually incurred by Landlord.
Tenant shall further indemnify, defend and hold harmless Landlord from
and against any and all claims arising from any breach or default in
the performance of any obligation on Tenant's part to be performed
under the terms of this Lease. The provisions of this Paragraph shall
survive Lease Termination with respect to any damage, injury, death,
breach or default occurring prior to such termination. This Lease is
made on the express conditions that Landlord shall not be liable for,
or suffer loss by reason of, injury to person or property, from
whatever cause, in any way connected with the condition, use,
occupational safety or occupancy of the Premises specifically
including, without limitation, any liability for injury to the person
or property of Tenant or Tenant's agents.
13. ASSIGNMENT AND SUBLETTING.
Tenant may assign, sublet or transfer this Lease to any person, firm or
corporation with the written consent of Landlord which consent shall
not be unreasonably withheld, provided, however, that no such
assignment, sublease or transfer shall act as a release of Tenant from
any of the obligations and agreements on its part to be kept and
performed hereunder. Any assignment, sublease or transfer without the
prior written consent of Landlord shall be null and void at Landlord's
option. Landlord's approval of any subtenant or assignee is conditioned
upon there being no additional compliance required with any laws, rules
and regulations of any governmental authority required of either the
Landlord or the Tenant and such approval shall create no responsibility
or liability on the part of the Landlord for any non-compliance with
laws, rules and regulations of any governmental authority.
Request for consent to assign Tenant's interest or to sublease the
Premises shall be accompanied by a statement setting forth the name of
the prospective assignee or sublessee, the financial details of the
assignment or sublease (i.e. the rental and security deposit), the
term, other relevant information concerning the proposed assignee or
sublessee. Landlord shall have the right within ten (10) days after
receipt of such written request from Tenant to (A) withhold consent to
the assignment or sublease if the withholding of such consent is
reasonable, or (B) consent to such sublease or Assignment, in which
case any rent payable by the assignee or sublessee (including any lump
sum of additional payment or other consideration for the assignment or
sublease) which exceeds the rent payable by Tenant hereunder shall be
shared fifty percent (50%) by Tenant and fifty percent (50%) by
Landlord, or (C) terminate this Lease, effective as of the commencement
date of the term of such sublease or the effective date of such
assignment in which case Landlord shall have the right to enter into a
direct Lease with such proposed assignee or sublessee. If Landlord
elects to so terminate the Lease, then this Lease shall be canceled and
terminated as of the effective date of the proposed
11
EXHIBIT 10.26
assignment or the commencement date of the proposed sublease, as set
forth in Tenant's notice.
14. CARE OF PREMISES.
Tenant further covenants and agrees that during said Lease Term it will
keep said Premises and every part thereof and all buildings at any time
situated thereon in a clean and wholesome condition and generally that
it will in all respects and at all times duly comply with all lawful
health and police regulations and also that it will keep the
improvements at any time situated upon the Premises safe, secure and
comfortable to the lawful and valid requirements applicable thereto.
15. ALTERATION BY TENANT.
(A) Tenant is hereby given the right, at its sole cost and expense, at
any time during the term hereof, to make any alterations or
improvements to the interior of the demised premises which the Tenant
may deem necessary or desirable for its purposes; provided, however,
that no alterations or improvements shall be made without the written
approval of the Landlord, which written approval shall not be
unreasonably withheld. Landlord's approval of any plans, specifications
or work drawings shall create no responsibility or liability on the
part of the Landlord for their completeness, design sufficiency or
compliance with any laws, rules and regulations of governmental
agencies or authorities.
(B) All work herein permitted shall be done and completed by the Tenant
in a good and workmanlike manner and in compliance with all
requirements of law and of governmental rules and regulations. Tenant
agrees to indemnify the Landlord against all mechanics' or other liens
arising out of any of such work, and also against any and all claims
for damages or injury which may occur during the course of any such
work. The Landlord agrees to join with the Tenant in applying for all
permits necessary to be secured from governmental authorities and to
promptly execute such consents as such authorities may require in
connection with any of the foregoing work.
(C) Landlord may require that Tenant remove any or all said
alterations, improvements or additions at the expiration of the term,
and restore the Premises to their prior condition. Unless Landlord
requires their removal, all alterations, additions and improvements
which may be made on the Premises, shall become the property of
Landlord and remain upon and be surrendered with the Premises at the
expiration of the Lease Term. Tenant shall repair any damage to the
Premises caused by the installation or removal of Tenant's trade
fixtures, furnishings and equipment.
16. CONDEMNATION.
(A) If the leased Premises shall be wholly taken by exercise of right
of eminent domain, then this Lease shall terminate from the day the
possession of the whole of the Premises shall be required under the
exercise of such power of eminent
12
EXHIBIT 10.26
domain. Any award for the taking of all or part of the Premises under
the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of the Landlord. Tenant
reserves such separate rights as it may have against the condemning
authority to claim damages for loss of its trade fixtures and the cost
of removal and relocation expenses.
(B) If such part of the building or buildings in which Tenant's
business is operated shall be condemned so as to the substantially and
materially hamper the operation of Tenant's business, then the Rent
payable hereunder shall be reduced in the proportion that the remaining
area of the Premises bears to the original area of the entire Premises
leased hereunder. If the parties are unable to agree upon the amount of
the reduction in Rent within seven (7) days from the date the Tenant's
business is substantially and materially hampered, then it shall be
arrived at by arbitration, each party to select an arbitrator and if
the two arbitrators are unable to agree they shall select a third
arbitrator and the three arbitrators so selected shall determine the
amount of such reasonable reduction. It is agreed that the findings of
the arbitrators shall be binding upon the parties.
17. SUBORDINATION.
Tenant shall, upon the written request of Landlord, agree to the
subordination of this Lease and the lien hereof to the lien of any
present or future mortgage upon the premises irrespective of the time
of execution or the time of recording of any such mortgage. In the
event of subordination of this Lease, Landlord will attempt to obtain
from the holder of any such mortgage, a written agreement with Tenant
to the effect that (A) in the event of a foreclosure or other action
taken under the mortgage by the holder thereof, this Lease and the
rights of Tenant hereunder shall not be disturbed but shall continue in
full force and effect so long as Tenant shall not be in default
hereunder; and (B) such holder will agree that in the event it or any
successor assign shall be in possession of the premises, that so long
as Tenant shall observe and perform all of the obligations of Tenant to
be performed pursuant to this Lease, such Mortgagee will perform all
obligations of Landlord required to be performed under this Lease. The
word "Mortgage" as used herein includes mortgages, deeds of trust and
any sale-leaseback transactions, or other similar instruments, and
modifications, extensions, renewals, and replacements thereof, and any
and all advances thereunder.
18. ACCESS TO PREMISES
Landlord and its authorized agents shall have free access to said
Premises at any and all reasonable times to inspect the same and for
the purposes pertaining to the rights of the Landlord.
19. RULES AND REGULATIONS.
Tenant agrees to comply with all rules and regulations promulgated by
Landlord concerning the use and enjoyment of the Premises. Among other
things, the rules and regulations specifically prohibit outdoor
storage.
13
EXHIBIT 10.26
20. COVENANTS OF RIGHT TO LEASE.
Landlord covenants that it has good and sufficient right to enter into
this Lease and that they alone have full right to lease the Premises
for the Lease Term aforesaid. Landlord further covenants that upon
performing the terms and obligations of Tenant under this Lease, Tenant
will have quite enjoyment throughout the Lease Term and any renewal or
extension thereof.
21. MECHANIC'S LIENS.
Neither the Tenant nor anyone claiming by, through, or under the lease,
shall have the right to file or place any mechanic's lien or other lien
of any kind or character whatsoever upon said Premises or upon any
building or improvement thereon, or upon the leasehold interest of the
Tenant therein, and notice is hereby given that no contractor,
subcontractor, or anyone else who may furnish any material, service or
labor for any building, improvements, alteration repairs or any part
thereof, shall at any time be or become entitled to any lien thereon,
and for the further security of the Landlord, the Tenant covenants and
agrees to give actual notice thereof in advance, to any and all
contractors and subcontractors who may furnish or agree to furnish any
such material, service or labor.
22. EXPIRATION OF LEASE AND SURRENDER OF POSSESSION.
(A) Holding Over. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession to Landlord.
If Tenant retains possession of the Premises or any part thereof after
such termination, then Landlord may, at its option, serve written
notice upon Tenant that such holding over constitutes any one of (i)
renewal of this Lease for one year, and from year to year thereafter,
or (ii) creation of a month-to-month tenancy, upon the terms and
conditions set forth in this Lease, or (iii) creation of a tenancy at
sufferance, in any case upon the terms and conditions set forth in this
Lease; provided, however, that the monthly Rent (or daily Rent under
(iii)) shall, in addition to all other sums which are to be paid by
Tenant hereunder, whether or not as additional Rent, be equal to double
the Rent being paid monthly to Landlord under this Lease immediately
prior to such termination (prorated in the case of (iii) on the basis
of a 365-day year for each day Tenant remains in possession). If no
such notice is served, then a tenancy at sufferance shall be deemed to
be created at the Rent in the preceding sentence. Tenant shall also pay
to Landlord all damages sustained by Landlord resulting from retention
of possession by Tenant, including the loss of any proposed subsequent
tenant for any portion of the Premises. The provisions of this
paragraph shall not constitute a waiver by Landlord of any right of
re-entry as herein set forth; nor shall receipt of any Rent or any
other act in apparent affirmance of the tenancy operate as a waiver of
the right to terminate this Lease for a breach of any of the terms,
covenants, or obligations herein on Tenant's part to be performed.
14
EXHIBIT 10.26
(B) Upon the expiration of this Lease, by lapse of time or otherwise,
any and all buildings, improvements or additions erected on said
Premises by Tenant shall be and become the property of the Landlord
without any payment therefor and Tenant shall surrender said Premises,
together with all buildings and improvements thereon, whether erected
by Tenant or Landlord, ordinary wear and tear and damage by fire or
other casualty excepted.
(C) Tenant may install adequate equipment, fixtures and machinery for
the carrying on of its business and upon the termination of this Lease
by lapse of time or otherwise, provided all Rents and other amounts
that may be due and owing to Landlord have been paid and the provisions
of this Lease complied with, the Tenant may remove such equipment,
fixtures and machinery installed by it at Tenant's cost. However, upon
removal of such equipment, fixtures and machinery, the Tenant shall
also repair any damage caused by such removal or installation.
23. DEFAULT-REMEDIES.
The occurrence of one or more of the following events shall constitute
a material default and breach of this Lease by Tenant:
(A) Failure by Tenant to make payment of any Rent herein agreed to be
paid or any other payment required to be made by Tenant hereunder, as
and when due, and such a failure shall continue for a period of ten
(10) days;
(B) The making by Tenant of any assignment or arrangement for the
benefit of creditors;
(C) The filing by Tenant of a petition in bankruptcy or for any other
relief under the Federal Bankruptcy Law or any other applicable
statute;
(D) The levying of an attachment, execution of other judicial seizure
upon the Tenant's property in or interest under this lease, which is
not satisfied or released or the enforcement thereof stayed or
superseded by an appropriate proceeding within thirty (30) days
thereafter;
(E) The filing of an involuntary petition in bankruptcy or for
reorganization or arrangement under the Federal Bankruptcy Law against
Tenant and such involuntary petition is not withdrawn, dismissed,
stayed or discharged within sixty (60) days from the filing thereof;
(F) The appointment of a Receiver or Trustee to take possession of the
property of Tenant or of Tenant's business or assets and the order or
decree appointing such Receiver or Trustee shall have remained in force
undischarged or unstayed for thirty (30) days after the entry of such
order or decree;
(G) The vacating or abandonment of the Premises.
15
EXHIBIT 10.26
(H) The failure by Tenant to perform or observe any other term,
covenant, agreement or condition to be performed or kept by the Tenant
under the terms, conditions, or provisions of this lease, and such a
failure shall continue uncorrected for thirty (30) days after written
notice thereof has been given by Landlord to the Tenant.
Then and in any such event Landlord shall have the right, at the option
of the Landlord, then or at any time thereafter while such default or
defaults shall continue, to elect either (1) to cure such default or
defaults at its own expense and without prejudice to any other remedies
which it might otherwise have, any payment made or expenses incurred by
Landlord in curing such default with interest thereon at eighteen
percent (18%) per annum to be and become additional Rent to be paid by
Tenant with the next installment of Rent falling due thereafter; or (2)
to re-enter the Premises, without notice, and dispossess Tenant and
anyone claiming under Tenant by summary proceedings or otherwise, and
remove their effects, and take complete possession of the Premises and
either (a) declare this Lease forfeited and the Lease Term ended, or
(b) elect to continue this Lease in full force and effect, but with the
right at any time thereafter to declare this Lease forfeited and the
Lease Term ended. In such re-entry the Landlord may, with or without
process of law, remove all persons from the Premises, and Tenant hereby
covenants in such event, for itself and all others occupying the
Premises under Tenant, to peacefully yield up and surrender the
Premises to the Landlord. Should Landlord declare this Lease forfeited
and the Lease Term ended, the Landlord shall be entitled to recover
from Tenant the Rent and all other sums due and owing by Tenant to the
date of termination, plus the costs of curing all of Tenant's defaults
existing at or prior to the date of termination, plus the cost of
recovering possession of the Premises, plus the deficiency, if any,
between Tenant's Rent for the balance of the Lease Term provided
hereunder and the Rent obtained by Landlord under another lease for the
Premises for the balance of the Lease Term remaining under this lease.
Landlord shall use its best efforts to rent the Premises with or
without advertising, and on the best tams available for the remainder
of the Lease Term hereof, or for such longer or shorter period as
Landlord shall deem advisable. Tenant shall remain liable for payments
of all Rent and other charges and costs imposed on Tenant herein, in
the amounts, at the times and upon the conditions as herein provided,
but Landlord shall credit against such liability of the Tenant all
amounts received by Landlord from such reletting after first
reimbursing itself for all costs incurred in curing Tenant's defaults
and re-entering, preparing and refinishing the Premises for reletting,
and reletting the Premises, and for the payment of any procurement fee
or commission paid to obtain another tenant, and for the attorney fees
and legal costs incurred by Landlord.
24. RE-ENTRY BY LANDLORD.
No re-entry by Landlord or any action brought by Landlord to oust
Tenant from the Premises shall operate to terminate this Lease unless
Landlord shall have given written notice of termination to Tenant, in
which event Tenant's liability shall be as above provided. No right or
remedy granted to Landlord herein is intended to be exclusive of any
other right or remedy, and each and every right and remedy herein
provided shall be cumulative and in addition to any other right or
remedy hereunder or now or hereafter
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EXHIBIT 10.26
existing in law or equity or by statute. In the event of termination of
this Lease, Tenant waives any and all rights to redeem the Premises
either given by any statute now in effect or hereafter enacted.
25. ADDITIONAL RIGHTS TO LANDLORD.
(A) In addition to any and all other remedies, Landlord may restrain
any threatened breach of any covenant, condition or agreement herein
contained but the mention herein of any particular remedy or right
shall not preclude the Landlord from any other remedy or right it may
have either at law or equity, or by virtue of some other provision of
this Lease; nor shall the consent to one act, which would otherwise be
a violation or waiver of or redress for one violation either of
covenant, promise agreement undertaking or condition, prevent a
subsequent act which would originally have constituted a violation from
having all the force and effect of any original violation.
(B) Receipt by Landlord of Rent or other payments from the Tenant shall
not be deemed to operate as a waiver of any rights of the Landlord to
enforce payment of any Rent, additional Rent, or other payments
previously due or which may thereafter become due, or of any rights of
the Landlord to terminate this Lease or to exercise any remedy or right
which otherwise might be available to the Landlord, the right of
Landlord to declare a forfeiture for each and every breach of this
Lease is a continuing one for the life of this Lease.
26. SUCCESSORS, ASSIGNS AND LIABILITY.
The terms, covenants, conditions and agreements herein contained and as
the same may from time to time hereafter be supplemented, modified or
amended, shall apply to, bind, and inure to the benefit of the parties
hereto and their legal representatives, successors and assigns,
respectively. In the event either party now or hereafter shall consist
of more than one person, firm or corporation, then and in such event
all such person, firms and/or corporations shall be jointly and
severally liable as parties hereunder.
27. NOTICES.
All notices required under this Lease shall be in writing and shall be
deemed to be properly served when posted by certified United States
mail, postage prepaid, return receipt requested, addressed to the party
to whom directed at the address herein set forth or at such other
address as may be from time to time designated in writing by the party
changing such address.
Landlord Tenant
-------- ------
Principal Life Insurance Company Teledigital, Inc.
c/o Principal Capital Management, LLC 0000 Xxxx 00xx Xxxxxx, Xxxxx 0,
000 Xxxxx Xxxxxx Xxxxxxxxxxx, XX 00000
Xxx Xxxxxx, XX 00000-0000
17
EXHIBIT 10.26
with copy to:
------------
CB Xxxxxxx Xxxxx, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
28. MORTGAGEE'S APPROVAL.
If Landlord's mortgagee shall require modifications of the terms and
provisions of this Lease, Tenant agrees to execute and deliver to
Landlord the agreements required to affect such Lease modification
within thirty (30) days after Landlord's request therefor. In no event,
however, shall Tenant be required to agree to any modification of the
provision of this Lease relating to: the amount of Rent or other
charges reserved herein; the size and/or general location of the
Premises; the duration and/or commencement date of the Lease Term; or
reducing the improvements to be made by Landlord to the Premises prior
to the delivery of possession.
29. ESTOPPEL CERTIFICATES.
Tenant agrees that at any time within ten (10) days following written
notice from Landlord, it will execute, acknowledge and deliver to
Landlord or any proposed mortgagee or purchaser a statement in writing
certifying whether this Lease is in full force and effect and, if it is
in full force and effect, what modifications have been made to the date
of the certificates and whether or not any defaults or offsets exist
with respect to this Lease and, if there are, what they are claimed to
be and setting forth dates to which Rent or other charges have been
paid in advance, if any, and stating whether or not Landlord is in
default, if so, specifying what the default may be. The failure of
Tenant to execute, acknowledge, and deliver to Landlord a statement as
above shall constitute an acknowledgment by Tenant that this Lease is
unmodified and in full force and effect and that the Rent and other
charges have been duly and fully paid to and including the respective
due dates immediately preceding the date of Landlord's notice to Tenant
and shall constitute as to any person, a waiver of any defaults which
may exist prior to such notice.
30. MISCELLANEOUS.
(A) In the event that Tenant desires to store or maintain the type or
character of goods or materials in the Premises which cause an increase
in insurance premiums, Tenant shall first obtain the written consent of
Landlord and Tenant shall reimburse Landlord for any increase in
premiums caused thereby.
(B) If any term or provision of this Lease is declared invalid or
unenforceable, the remainder of this Lease shall not be affected by
such determination and shall continue to be valid and enforceable.
(C) This agreement contains the entire Lease contract between the
parties hereto. A short form of this Lease, for the purpose of
recording, may be executed by the
18
EXHIBIT 10.26
parties simultaneously herewith and if either party desires to record
this Lease, the short form shall be used for that purpose.
(D) The parties executing this Lease warrant that this agreement is
being executed with full corporate authority and that the officers
whose signatures appear hereon are duly authorized and empowered to
make and execute this Lease in the name of the corporation by
appropriate and legal resolution of its Board of Directors.
(E) Unless the context clearly denotes the contrary, the word "Rent" or
"Rental" as used in this Lease not only includes cash Rental, but also
all other payments and obligations to pay assumed by the Tenant,
whether such obligations to pay run to the Landlord or to other
parties.
(F) It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall, and they hereby do, waive trial by
jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matter whatsoever arising out
of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use of or occupancy of the Premises or
any claim of injury or damage and any emergency statutory or any other
statutory remedy. If Landlord commences any summary proceeding for
nonpayment of Rent, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding.
31. DEFAULT RATE OF INTEREST
All amounts owed by Tenant to Landlord pursuant to any provision of
this Lease shall bear interest from the date due until paid at eighteen
percent (18%) per annum, unless a lesser rate shall then be the maximum
rate permissible by law with respect thereto, in which event said
lesser rate shall be charged.
32. EXCULPATORY PROVISIONS
It is expressly understood and agreed by and between the parties
hereto, anything herein to the contrary notwithstanding, that each and
all of the representations, warranties, covenants, undertakings and
agreements herein made on the part of Landlord while in form purporting
to be the representations, warranties, covenants, undertakings and
agreements of Landlord are nevertheless each and every one of them made
and intended, not as personal representations, warranties, covenants,
undertakings and agreements by Landlord or for the purpose or with the
intention of binding Landlord personally, but are made and intended for
the purpose only of subjecting Landlord's interest in the Premises to
the terms of this Lease and for no other purpose whatsoever, and in
case of default hereunder by Landlord, Tenant shall look solely to the
interests of Landlord in the Premises; and that Landlord shall not have
any personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained, all
such personal liability, if any, being expressly waived and released by
Tenant and by all persons claiming by, through or under Tenant.
19
EXHIBIT 10.26
33. MORTGAGE PROTECTION
Tenant agrees to give any holder of any first mortgage or first trust
deed in the nature of a mortgage (both hereinafter referred to as a
"First Mortgage") against the Premises, or any interest therein, by
registered or certified mail, a copy of any notice or claim of default
served upon Landlord by Tenant, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a
copy of an assignment of Landlord's interest in leases, or otherwise)
of the address of such First Mortgage holder. Tenant further agrees
that if Landlord shall have failed to cure any such default within
twenty (20) days after such notice to Landlord (or if such default
cannot be cured or corrected within that time, then such additional
time as may be necessary if Landlord has commenced within such twenty
(20) days and is diligently pursuing the remedies or steps necessary to
cure or correct such default), then the holder of the First Mortgage
shall have an additional thirty (30) days within which to cure or
correct such Default (or if such default cannot be cured or corrected
within that time, then such additional time as may be necessary if such
holder of the First Mortgage has commenced with such thirty (30) days
and is diligently pursuing the remedies or steps necessary to cure or
correct such default, including the time necessary to obtain possession
if possession is necessary to cure or correct such default.
34. RECIPROCAL COVENANT ON NOTIFICATION OF ADA VIOLATIONS
Within ten (10) days after receipt, Landlord and Tenant shall advise
the other party in writing, and provide the other with copies of (as
applicable), any notices alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of the
property or the Premises; any claims made or threatened in writing
regarding noncompliance with the ADA and relating to any portion of the
property or the Premises; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with
the ADA and relating to any portion of the property or the Premises.
35. LAWS THAT GOVERN
Landlord and Tenant agree that the term and conditions of this Lease
shall be governed by the Laws of the State of Minnesota.
36. FINANCIAL STATEMENTS
Within ten (10) business days after Landlord's request, Tenant shall
deliver to Landlord the current financial statements of Tenant, and
financial statement of the two (2) years prior to the current financial
statements year, with an opinion of a certified public accountant. This
information includes a balance sheet and profit and loss statement for
the most recent prior year, all prepared in accordance with generally
accepted accounting principles consistently applied.
20
EXHIBIT 10.26
37. RELOCATION OF TENANT
At any time hereafter, Landlord may substitute for the Premises other
premises (herein referred to as "the new Premises") provided:
a) the new Premises shall be similar to the Premises in area
and use for Tenant's purposes and shall be located in the
building; and, if Tenant is already in occupancy of the
Premises, then in addition:
b) Landlord shall pay the expenses of Tenant for moving from
the Premises to the new Premises so that they are
substantially similar to the Premises;
c) such move shall be made during evenings, weekends or
otherwise, so as to incur the lease inconvenience to Tenant;
and
d) Landlord shall first give the tenant at least thirty (30)
day's notice before making such change. If Landlord shall
exercise its right hereunder, the new Premises shall
thereafter be deemed for the purposes of this Lease as the
Premises.
38. UPON DEMOLITION OR SALE OF BUILDING
Landlord shall have the right to terminate this Lease at any time if
Landlord, or the holder of legal title to the Building proposes or is
required, for any reason, to remodel or demolish the building or any
substantial portion of the Building or if Landlord decides to sell or
cause to be sold the Building by conveyance of a deed or by assignment
of the beneficial interest in the land trust holding legal title to the
Building or, Landlord's stockholders decide to sell at lease sixty-six
and two-thirds percent of Landlord's capital stock (if Landlord is a
corporation), or if Landlord decides to convey or cause to be conveyed
its interest in the ground lease, or to lease or cause to be leased to
one tenant for a term of ten years or more either all the Building or
all the Building except the ground floor. Such termination shall become
effective and conclusive by notice of such termination to the tenant.
If Landlord sells or causes to be sold the Building by conveyance of a
deed or by assignment of the beneficial interest in the land trust
holding legal title to the land thereunder, then the purchaser of the
building or the ground lessee under such ground lease shall also have
the right to terminate this lease. Such termination shall become
effective and conclusive of such sale, or not more than ninety (90)
days after execution of such ground lease, as the case may be, and not
less than ninety (90) days prior to the effective date of such
termination. No money or other consideration shall be payable by
Landlord or such purchaser or ground lessee to Tenant for this right
and the right hereby reserved to Landlord, the purchaser of ground
lessee shall inure to all purchasers, assignors, lessees, transferees
and ground lessees, as the case may be, and in addition to all other
rights of Landlord.
39. CONFIDENTIALITY
Tenant agrees that this Agreement of lease will be kept confidential
and shall not, without Landlord's prior written consent, be disclosed
by the Tenant or by its agents,
21
EXHIBIT 10.26
representatives and employees who have a need to know and who are
informed by Tenant of the confidential nature of the Agreement of
Lease.
40. TERMINATION OPTION
Provided Tenant has given Landlord written notice of its desire to
expand into additional square footage ("Notice Date"), and Landlord is
unable to make such additional space available in either the Olympia
Business Center, Cedar Business Center, or Eagandale Business Campus
within six months of the Notice Date, and under terms agreeable to
Landlord, then Tenant, but not any of its assignees or subtenants,
shall have a one time option to terminate this Lease six full calendar
months after Notice Date, but in no event will the effective date be
earlier than December 31, 2002 ("Termination Option"). In addition,
Tenant shall pay to Landlord at the Notice Date an amount equal to Ten
Thousand and no/100 Dollars ($10,000.00) ("Termination Payment").
Notwithstanding anything to the contrary contained herein, should
Tenant fail to notify Landlord of its desire to expand into additional
space by June 30, 2002, or fail to deliver the Termination Payment with
said notice, then this Termination Option shall become null and void
The Rider(s) none and/or Exhibit(s) A, B, C and D attached to this Lease,
consisting of 11 pages, are hereby made a part of this Lease.
IN WITNESS WHEREOF, the parties hereto may execute this Lease in
counterpart copies, each of which shall be deemed originals or Landlord
and Tenant have executed this Lease the date and year noted below.
Signed at 3 PM, on this 19th day of November, 1999.
LANDLORD: TENANT:
Principal Life Insurance Company, an Iowa corporation Teledigital, Inc.,
By: Principal Capital Management, LLC, a Minnesota corporation
a Delaware limited liability company,
its authorized signatory
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxxxx
--------------------------- -------------------
Xxxxx Xxxx
Its: Director, C.R.E. Equities Its: CFO
-------------------------- ------------------
By:
---------------------------
Its:
--------------------------
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CONSULT YOUR ATTORNEY: This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency, legal effect, or tax consequence of this document or the
transaction to which it relates. These are questions for your attorney and
financial advisors.
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22
EXHIBIT 10.26
State of )
---------------------------
) ss.
County of )
--------------------------
On this _______ day of ________________________, 19__, before me, the
undersigned, Notary Public in and for the State of _________________ personally
appeared ____________________ and ____________________, to me personally known,
who being by me duly sworn, did say that they are the ____________________ and
____________________, respectively of said corporation executing the within and
foregoing instrument, that the seal affixed hereto is the seal of the said
corporation; that the instrument was signed and sealed on behalf of the
corporation by authority its Board of Directors; and that the said
____________________ and ____________________ as such officers acknowledged the
execution of said instrument to be the voluntary act and deed of the corporation
by it and by them voluntarily executed.
__________________________________________________
Notary Public in and for the State of ____________
23
EXHIBIT 10.26
EXHIBIT A
1325 - 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
[Description of Master Floor Plan - Building A]
[Description of Master Floor Plan - Building B]
