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EXHIBIT 10(B)
LEASE
THIS LEASE entered into as of the 1st day of April, 1996, between Traverse
Software Investment L.L.C., a Michigan limited liability company, of ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter referred to as "Landlord")
and Olmsted Engineering Co., a Michigan corporation, of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter referred to as "Tenant").
W I T N E S S E T H :
1. Leased Premises. Landlord leases to Tenant and Tenant hires from
Landlord that portion of the building to be constructed by Landlord, located at
Cass Road, Traverse City, Michigan (2600 ▇▇▇▇▇▇ Creek Dr.) consisting of
approximately 9,000 to 10,000 square feet, as shown outlined in red on the
attached drawing and consisting of approximately 4,000 sq. feet, including a
specialized area for electronic manufacturing/assembly with installed
antistatic tile, an area suitable for use by Teneant to meet its currently
estimated shipping and receiving needs, and additional space within the
building to be shared and used in common with other tenants in the building
(hereinafter the "Premises"); subject, however, to easements, liens and
restrictions of record, if any, and present and future zoning or other laws and
regulations relating to the Premises.
2. Term. The original term of this Lease shall be for a period of 60
months commencing on the 1st day of July, 1996, and ending on the 30th day of
June, 2001, regardless of actual entry, subject to the provisions of this
Lease. If Landlord is unable to give possession of the Premises on the date of
commencement of the term of this Lease because construction repairs or
improvements are not completed, rent shall ▇▇▇▇▇ for the period that possession
by Tenant is delayed. If such delay shall continue for more than 180 days,
Tenant may, within ten (10) days after the expiration of the said 180 day
period, give the Landlord a notice of election to terminate this Lease. Unless
possession of the Premises is sooner made available, this Lease shall terminate
on the tenth day after the giving of the said notice and Landlord shall return
to Tenant all sums previously paid. Landlord shall have no obligation to
Tenant for failure to give possession except as provided in this paragraph, nor
shall the failure to give such possession extend the term of this Lease beyond
the stated ending date.
3. Rent.
(a) Minimum Rent. The fixed minimum rent for the
Premises shall be $54,000.00 Dollars per year payable by
Tenant to Landlord in equal monthly installments of $4,500.00
Dollars each, on or before the first day of each month in
advance during the term hereof without any prior demand
therefor and without deduction or set off
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whatsoever, the first monthly rental payment to be paid upon
the date Tenant is notified that the Premises are ready for
occupancy.
(b) Additional Rent. Minimum rent as provided in
Paragraph 3(a) hereof shall be increased from time to time as
follows:
(1)
The minimum monthly rent provided for in Paragraph 3(a)
shall be increased on July 1, 1997, and on July 1 of each
year thereafter, so that the minimum rent for that
ensuing 12 month period shall be equal to 1.04 times the
minimum rent applicable to the preceding 12 month period.
(2) The Tenant shall pay as additional rent any money and
charges required to be paid pursuant to the terms of this
Lease whether or not the same may be designated
"additional rent." If such amounts or charges are not
paid at the time provided in this Lease, they shall
nevertheless, if not paid when due, be collectible as
additional rent with the next installment of rent
thereafter falling due hereunder, but nothing herein
contained shall be deemed to suspend or delay the payment
of any amount of money or charge at the time the same
becomes due and payable hereunder, or limit any other
remedy of the Landlord.
(3) To induce the Landlord to promptly proceed with the
construction of the building, and to include therein
various features and improvements which are specifically
desired by the Tenant, the Tenant shall pay to Landlord
the sum of $50,000.00 upon the execution and delivery of
this Lease. Subject to Paragraph 2, said $50,000.00
shall be non-refundable, shall be for the Landlord's
benefit, and all tenant improvements applicable to Tenant
shall belong to the Landlord upon termination of the
Lease.
5. Security Deposit. A security deposit of one month's rent, in addition
to the first monthly rental payment, shall be paid to Landlord upon execution
of this Lease. Upon expiration or termination of the term of this Lease, the
Landlord shall return such security deposit to the Tenant less (1) any amounts
expended to repair or clean the Premises; (2) any unpaid rentals then due; and
(3) the cost of performing any obligations imposed upon Tenant by this Lease.
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6. Place for Payment of Rent. All payments of rent shall be made at
Landlord's address set forth above or at such other place as Landlord shall
designate from time to time in writing.
7. Utilities and Other Services . Tenant shall pay one half of all
charges for electricity, telephone, snow plowing, janitorial services, trash
pickup, and all other utilities and services used on or at the Premises during
the term of this Lease. Landlord shall ▇▇▇▇ Tenant periodically, and Tenant
shall pay the same in accordance with paragraph 3(b)(2) of this Lease.
8. Net Lease. It is the intention of the Landlord and Tenant that the
rent herein provided shall be net to the Landlord in each year during the term
of this Lease, that all costs, expenses and obligations of any kind relating to
the Premises (except as otherwise specifically provided in the Lease) which may
arise or become due during the term of this Lease shall be paid by Tenant, and
that the Landlord shall be indemnified by the Tenant against all such costs,
expenses and obligations.
9. Use of Premises. Tenant shall use and occupy the Premises only for
office administrative and computer software support and educational purposes,
as approved from time to time by the Landlord, and for no other purpose without
the prior written consent of Landlord.
10. Preparation of Premises. Tenant shall pay all expenses of preparing
the Premises for Tenant's occupancy, except as may be otherwise agreed in
writing.
11. Acceptance of Premises. Except as Landlord and Tenant may otherwise
agree in writing at such time, the taking of possession by Tenant shall be
conclusive evidence that, at such time, the Premises were in satisfactory or
acceptable condition. Landlord has made no representations as to the condition
of the Premises except as herein provided and Landlord shall not be liable for
any latent or patent defects therein.
12. Improvements and Alterations. Tenant may make alterations to the
interior of the Premises, at its own expense, provided that no structural
damage results; and further provided that any such alterations or improvements
shall first be approved by Landlord in writing.
13. Maintenance and Repair. The Landlord, after receiving written notice
from the Tenant and having reasonable opportunity thereafter to obtain the
necessary workmen therefor, agrees to keep in good order and repair the roof
and the four outer walls of the Premises but not the doors, door frames, the
window glass, window casing, window boxes, windows or any of the appliances or
appurtenances of the doors or window casings, window frames and windows, or any
attachment thereto or attachments to the building or Premises used in
connection therewith. Landlord shall not be responsible for any repairs,
structural or otherwise, which are a result of the
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negligence or willful conduct of Tenant. Tenant shall maintain the interior of
the Premises, including the plate glass windows and plumbing and heating
systems, in good order and repair. Any repairs made by Tenant shall be done by
a contractor approved in writing by the Landlord before such work is commenced.
If Tenant shall fail to properly maintain and repair the Premises, Landlord may
elect not to treat such failure as a breach of this Lease, in which case
Landlord may cause the repairs to be done and shall charge the expense thereof
against Tenant, to be paid immediately upon presentation of a statement
therefor.
14. Insurance. Landlord shall carry fire and extended coverage insurance
on the building in which the Premises are located; provided, however, Tenant
shall reimburse Landlord for 50% of such expense upon billing in accordance
with paragraph 3(b)2) of this Lease. Tenant shall reimburse Landlord for 100%
of that portion of the expense, if any, attributable to any improvements made
by Tenant or resulting from ratings or penalties imposed by reason of Tenant's
business. Tenant shall maintain insurance on Tenant's leasehold improvements,
and on the contents on property in or about the Premises. Tenant shall, at its
own cost and expense, obtain and keep in force, for its own benefit and the
benefit of the Landlord, public liability insurance with coverage in such
amounts as Landlord may reasonably request from time to time, but not less than
Three Million ($3,000,000.00) Dollars to any individual and Five Million
($5,000,000.00) Dollars for each accident, together with property damage
insurance with coverage of at least Two Million ($2,000,000.00) Dollars for
each accident; a duplicate certificate of issuance of such insurance shall be
furnished to Landlord. Such insurance shall be non-cancelable without ten (10)
days written notice to Landlord. Except for the public liability coverage
required of Tenant hereunder, Tenant shall not obtain any separate insurance
concurrent in form or contributing in the event of loss with that required of
Landlord hereunder, unless Landlord is included therein as the insured, with
the loss payable in accordance with this Lease.
15. Waiver of Subrogation. The parties hereto agree to use good faith
efforts to have at no additional cost any and all fire, extended coverage or
any and all material damage insurance which may be carried endorsed with the
following subrogation clause: "This insurance shall not be invalidated should
the insured waive in writing prior to a loss any or all right of recovery
against any party for loss occurring to the property described herein"; and
each party hereto hereby waives all claims for recovery from the other party or
Landlord for any loss or damage to any of its property insured under valid and
collectible insurance policies to the extent of any recovery collectible under
such insurance subject to the limitation that this waiver shall apply only when
it is either permitted or by the use of such good faith efforts could have been
so permitted by the applicable policy of insurance.
16. Indemnity. Tenant agrees to indemnify and hold harmless Landlord
from any and all claims, demands or liabilities of whatsoever kind or nature
which in any way arise out of Tenant's use and occupancy of the Premises,
whether or not such
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claims, demands or liabilities arose in part from the negligence of Landlord,
but not where any such claim, demand or liability arises from the sole
negligence of Landlord. The liability of Tenant to indemnify Landlord as
herein set forth shall not extend to any matter against which Landlord shall be
effectively protected by insurance; provided, however, that if such liability
shall exceed the amount of the effective and collectible insurance in question,
the said liability of Tenant shall apply to such excess.
17. Signs. All signs and advertising displayed in and about the Premises
shall be such only as advertise the business carried on upon said Premises, and
no sign shall be displayed excepting such as shall be approved by the Landlord
prior to the installation thereof.
18. Tenant's Personal Property and Taxes. All personal property of
Tenant kept on the Premises shall be at Tenant's sole risk, and Tenant hereby
waives all right of recovery which it might otherwise have against Landlord for
any loss, theft or damage to Tenant's personal property, excepting such loss,
theft or damage as may result from Landlord's sole negligence. Tenant shall
pay promptly when due all personal property taxes levied on, or with respect
to, personal property owned by Tenant. Landlord shall pay all real property
taxes and assessments levied on the Premises; provided, however, Tenant shall
reimburse Landlord for 50% of such expense upon billing in accordance with
paragraph 3(b) of this Lease. In the event Landlord and/or Tenant hereafter
adds onto the existing building, the foregoing percentage will be adjusted to
reflect the relative assessed value of the portions of the building occupied by
Tenant.
19. Destruction - Fire or Other Cause. If the Premises shall be rendered
untenantable by fire or other casualty, then Landlord shall make the Premises
tenantable as speedily as possible, and the rent shall be abated in whole or in
part, according to the portion of the Premises which is rendered untenantable,
during the period of untenantability, except that there shall be no such
abatement if such fire or other casualty shall be caused by the negligence of
Tenant or its agents, employees, invitee or licensees, and further, there shall
be no abatement for the time required for the replacement or repair of any
property of Tenant, in excess of the time required to make the Premises
tenantable.
In the event that the Premises cannot be made tenantable within ninety
(90) days, then either Landlord or Tenant may terminate this Lease, effective
as of the date of casualty, by notification to the other of such termination
within ten (10) days after Landlord shall have notified Tenant of the time
required to make them tenantable. Landlord shall, in its sole judgment,
reasonably exercised, determine the length of time required to make the
Premises tenantable, and shall notify Tenant of such determination within
twenty (20) days after the occurrence of the fire or other casualty.
20. Laws and Regulations. Tenant shall, at its own cost and expense,
comply with all of the requirements of all laws and regulations, municipal,
state and
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federal, now in force, or which may hereafter be in force, pertaining to the
Premises, and the use and occupancy thereof. To the extent that any renovation
of all or a part of the building in which the Premises are located requires any
part of the Premises to be upgraded to meet code requirements, Tenant shall
bear the cost and expense of upgrading.
21. Eminent Domain. In the event that the Premises be lawfully condemned
or taken in any manner for any public or quasi-public use, this Lease shall
terminate as of the date of actual taking. In the event that any part of the
Premises be so condemned or taken, Landlord shall have the right to terminate
this Lease as of the date of actual taking by giving Tenant written notice of
such termination; but should Landlord not so terminate this Lease, this Lease
shall cease as to the part taken and the rent adjusted so that Tenant shall pay
a pro-rata portion of the rent determined by the amount of space (and rate
therefor) remaining after the taking. Landlord shall be entitled to receive
the entire award from any such condemnation or taking of the Premises or any
part thereof, without deduction therefrom for any estate or interest granted to
Tenant by this Lease, provided, that nothing herein contained shall be deemed
to prevent Tenant from claiming compensation for relocation costs or loss for
interruption of business in the event an award with respect thereto is provided
for by law or is fixed in the proceeding in which such taking shall occur;
provided, further, that Tenant shall be entitled to such amount, if any,
awarded for condemnation, or taking of personal property owned by Tenant, which
personal property is not attached to the real estate as an appurtenance
thereto.
22. Assignment and Subletting. Tenant shall not assign, mortgage or in
any way encumber this Lease, nor any part, right or interest thereof, nor shall
Tenant let or sublet or permit any part of the Premises to be used or occupied
by others for any reason whatsoever, unless Landlord shall consent thereto in
writing in each and every case and instance. Landlord shall have the absolute
right to withhold consent for any reason or no reason.
An assignment within the meaning of this paragraph shall be deemed to
include one (1) or more sales or transfers by operation of law or otherwise, or
issuance of new stock, by which an aggregate of more than 50% of Tenant's
voting stock shall be vested in a party or parties who are non-stockholders on
the date hereof. For the purpose of this paragraph, stock ownership shall be
determined in accordance with the provisions set forth in section 544 of the
Internal Revenue Code as the same existed on January 1, 1996.
Any consent by Landlord to an act of assignment or subletting shall be
held to apply only to the specific transaction hereby authorized. Such consent
shall not be construed as a waiver of the duty of Tenant, or Tenant's legal
representatives or assigns, to obtain Landlord's consent to any other or
subsequent assignment or subletting or as modifying or limiting the rights of
Landlord under the foregoing covenant by Tenant not to assign or sublet without
such consent. Nor shall receipt of
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rent by Landlord, with knowledge of any breach of this Lease by Tenant, or of
any default by Tenant in the observation or performance of any case and
instance. Landlord shall have the absolute right to withhold consent for any
reason or no reason.
23. Default and Termination. If any one or more of the following
events (hereinafter referred to as "Events of Default") shall occur:
(a) If Tenant shall fail to make payment of any rent or additional
rent or percentage rent when due and such default shall continue
for a period of ten (10) days after notice from Landlord to Tenant
specifying the items in default; or
(b) If default shall be made by Tenant in the performance or
compliance with any of the agreements, terms, covenants or
conditions in this Lease other than those referred to in
subparagraph (a) hereof for a period of twenty (20) days after
notice from Landlord to Tenant specifying the items in default, or
in the case of a default on a contingency which cannot with due
diligence be cured within the said twenty (20) day period, Tenant
fails to proceed with the said twenty (20) day period to cure the
same and thereafter to proceed with the curing of such default
with due diligence (it being the intention hereby in connection
with a default not susceptible of being cured with due diligence
within the said twenty (20) day period that the time within which
to cure the same be extended for such period of time as may be
necessary, exercising all due diligence, to complete the same);
then and in any such event Landlord at any time thereafter may give written
notice to Tenant specifying such Event or Events of Default and stating that
this Lease and the term hereof shall expire and terminate on the date specified
in such notice, which shall be at least ten (10) days after the giving of such
notice, and upon the date specified in such notice this Lease and the term
hereof and all rights of Tenant under this Lease including any renewal
privileges, whether or not exercised, shall expire and terminate, and Tenant
shall remain liable as hereinafter provided.
24. Damages. If this Lease shall be terminated under the provisions of
the preceding paragraph or by summary proceedings or otherwise, or if the
Premises or any part thereof shall be abandoned by Tenant or shall become
vacant during the term hereof, Landlord may in Landlord's own name, but as
agent for Tenant if this Lease not be terminated, or if this Lease be
terminated, in Landlord's own behalf, relet Premises or any part thereof, or
said Premises, with additional premises, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the term of this Lease) and on such conditions (which may include
concessions or free rent and alterations of the demised Premises) as Landlord
may determine in Landlord's sole and uncontrolled discretion and may collect
and receive
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rents therefor. Landlord shall in no way be responsible or liable for any
failure to relet the Premises or any part thereof, or for any failure to
collect any rent due upon such reletting.
No such expiration or termination of this Lease, or summary proceedings,
abandonment or vacancy, shall relieve Tenant of its liability and obligation
under this Lease, whether or not the demised Premises shall be relet. In any
such event, Tenant shall pay Landlord the rent and all other charges required
to be paid by Tenant up to the time of such event. Thereafter:
(a) (i) Tenant, until the end of the term of this
Lease, or what would have been such term in the absence of any
such event, shall be liable to Landlord as damages for
Tenant's default for the equivalent of the amount of the rent
and charges which would be payable under this Lease by Tenant
if this Lease were still in effect, less the net proceeds of
any reletting effected pursuant to the provisions of this
paragraph, after deducting all Landlord's expenses in
connection with such reletting, including, without limitation,
all repossession costs, brokerage and management commissions,
operating expenses, legal expenses, reasonable attorneys'
fees, alterations costs, and expenses of preparation of such
reletting.
(ii) Tenant shall pay such current damages (herein called
"deficiency") to Landlord monthly on the days on which the
rent would have been payable under this Lease if this Lease
were still in effect, and Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same shall
arise.
(b) If the demised Premises or any part thereof be relet by
Landlord for the unexpired term of this Lease, or any part
thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall prima facie be the
fair and reasonable rental value for the part or the whole of
the Premises so relet during the term of the reletting.
(c) If this Lease be terminated by summary proceedings or
otherwise, or if the Premises are abandoned or become vacant,
and whether or not the Premises be relet, Landlord shall be
entitled to recover from Tenant, and Tenant shall pay to
Landlord, in addition to any damages becoming due under this
paragraph 24, the following: an amount equal to all expenses,
if any, including reasonable counsel
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fees, incurred by Landlord in recovering possession of
the demised Premises, and all reasonable costs and charges for
the care of said Premises while vacant, which damages shall be
due and payable by Tenant to Landlord at such time or times as
such expenses are incurred by Landlord.
25. Surrender of Premises. Upon the expiration or the termination of the
term of this Lease, or any extension of the term in accordance herewith, Tenant
shall quit and surrender the Premises to Landlord in good order and broom clean
condition, ordinary wear and damage by the elements excepted; and Landlord upon
or at any such expiration or termination may without further notice enter upon
and re-enter the Premises and possess and repossess Landlord thereof, by force,
summary proceedings, ejectment or otherwise, and may dispossess and remove
Tenant and all other persons and property from the Premises. Tenant shall
remove all of its property, including but not limited to trade fixtures,
provided such removal can be accomplished without damage to the Premises. In
the event any such removal would result in damage to the Premises, Tenant may
remove such property only with the written consent of Landlord. Landlord may
condition such consent on Tenant's placing in escrow an amount of money which
Landlord in Landlord's sole discretion determines is sufficient to make any
repairs necessitated by any such removal. Any property of Tenant or of anyone
claiming under Tenant which shall remain on the Premises after the expiration
or termination of the Lease term, shall be deemed to have been abandoned by
Tenant, and either may be removed by Landlord as its property or may be
disposed of in such manner as Landlord may see fit, and Landlord shall not be
responsible for the same. Except as otherwise herein provided, any
improvements to or installations on the Premises made by Tenant shall become
the property of the Landlord and shall remain on the Premises at the
termination of the Lease.
26. Access to Premises. Landlord shall have the right to enter upon the
Premises at all reasonable hours for the purpose of inspecting same, preventing
waste, loss or destruction, removing obstructions, making such repairs or
alterations as it is obligated to make under the terms of this Lease, or to
enforce any of Landlord's rights or powers under this instrument, and Landlord
shall not be liable nor responsible for any loss that may accrue to Tenant's
business by reason thereof. The Landlord may show the Premises to prospective
tenants at any time during the last six (6) months of the term hereof or any
renewal term of this Lease, subject to the consent of Tenant which shall not be
unreasonably withheld.
27. Subordination. This Lease is subject and subordinate to all
underlying leases, and mortgages which nor or hereafter affect the Premises and
to all renewals, modifications, consolidations, replacements and extensions
thereof. Tenant shall execute promptly from time to time any certificate or
other instrument that Landlord may request to confirm this subordination.
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28. No Waiver. The failure of either party to enforce any covenant or
condition of this Lease shall not be deemed a waiver thereof or of the right of
either party to enforce each and every covenant and condition of this Lease.
No provision of this Lease shall be deemed to have been waived unless such
waiver be in writing.
29. Notices. All notices, bills or statements required hereunder shall
be in writing, and shall be deemed to have been given if either delivered
personally or mailed by certified or registered mail to Landlord at Landlord's
address and to Tenant at the Premises. Either party may change the address for
notice, bills or statements by giving notice of such changes as hereinabove set
out.
30. Successors and Assigns. The covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and their respective successors, and except as otherwise provided in
this Lease, their assigns.
31. Quiet Enjoyment. Landlord covenants and agrees with Tenant that upon
Tenant's paying the rent and observing and performing all the terms, covenants
and conditions on Tenant's part to be performed and observed, Tenant may
peaceably and quietly enjoy the Premises leased hereby.
32. Lien. In case Tenant shall default in the payment of rent,
additional rent and expenses, as the same become due and payable, Tenant for
the purpose of securing the payment of such rent and the performance of
Tenant's covenants herein contained, does hereby mortgage and grant a security
interest in all the fixtures, equipment and supplies now owned by Tenant or
hereafter owned by Tenant and located on the Premises during the term, or any
additional term, and does hereby authorize and empower Landlord to foreclose
the same, take possession of all of the property and sell the same at public
auction and account for the proceeds thereof according to the laws of the State
of Michigan, first giving Tenant at least thirty (30) days notice of the time
and place of such auction. Tenant hereby agrees to execute and deliver to
Landlord a financing statement for filing in the appropriate public office to
give public notice of Landlord's security interest hereby granted.
33. Holding Over. Notwithstanding any provision of law or any judicial
decisions to the contrary, no notice shall be required from either party to
terminate this Lease on the expiration date herein specified, and anything
herein contained and implied to the contrary notwithstanding, a holding over by
the Tenant, its successors or assigns, beyond the expiration of such term,
shall give rise to a tenancy from month to month only at a monthly rental rate
equal to three times the monthly rental rate in effect on the expiration date.
Tenant will not enter into any sublease for a period beyond the expiration of
this Lease or, if this Lease be renewed, beyond any renewal period. If,
nevertheless, any subtenant of Tenant or anyone holding by, through, or under
Tenant should fail to surrender possession of the Premises, or any part
thereof, by the expiration date of this Lease (or any renewal date, if this
Lease should be renewed),
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Tenant shall take appropriate action or proceedings to remove any such
subtenant or person from said Premises and shall conduct such action or
proceedings with reasonable diligence and continuity until the completion
thereof. While such action or proceedings are pending Tenant shall not be
deemed a holdover tenant but shall be deemed a month-to-month tenant at a
monthly rent in the same amount as that provided for during the last month of
the preceding term. If, within a reasonable time after expiration of the term
or renewal term, as the case may be, Tenant shall have failed to remove any
such subtenant or person, who shall be holding by, through or under Tenant,
Tenant shall reimburse Landlord for the reasonable cost and expense, including
attorneys' fees, which Landlord may incur if Landlord shall seek to remove any
such subtenant or person.
34. Entire Agreement. This Lease contains and fully integrates the
entire agreement between the parties and shall not be modified in any manner
except by an instrument in writing executed by the parties. If any term or
provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which is held invalid or unenforceable,
shall not be affected thereby and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
35. Partial Payment of Rent. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent herein stipulated shall be deemed to
be other than on account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy provided in this Lease.
36. Title to Property to be Preserved. Tenant agrees, and notice is
hereby given, that no mechanic's or other liens shall in any manner or degree
affect the title of the Landlord to land hereby leased, nor shall anything in
this Lease contained authorize the Tenant to encumber or impair in any manner
the title of the Landlord in the Premises, lands, buildings or personal
property.
37. Gender. Words of any gender in this Lease shall be held to include
any other gender in this Lease and words in the singular shall be held to
include the plural when the sense requires.
38. Tenant's Estoppel Certificates. Tenant shall, without charge, at any
time and from time to time, within ten (10) days after request by Landlord,
certify by written instrument, duly executed, acknowledged and delivered, to
Landlord or any other person, firm or corporation specified by Landlord:
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(a) That this Lease is unmodified and in full force
and effect, or, if there have been any modifications, that the
same is in full force and effect as modified and stating the
modifications;
(b) whether or not there are then existing any
set-offs or defenses against the enforcement of any of the
agreements, terms, covenants or conditions hereof and any
modifications hereof upon the part of Tenant to be performed
or complied with, and, if so, specifying the same;
(c) the dates, if any, to which the minimum rent,
additional rent and other charges hereunder have been paid in
advance;
(d) the date of expiration of the current term; and
(e) the net rent then payable under this Lease.
39. Landlord's Estoppel Certificate. Landlord shall, without charge, at
any time and from time to time, within ten (10) days after request by Tenant or
leasehold mortgagee certify by written instrument, duly executed, acknowledged
and delivered, to the effect that this Lease is unmodified and in full force
and effect (or if there shall have been modifications that the same is in full
force and effect as modified and stating the modifications) and the dates to
which the net rent and other charges have been paid, the date of expiration of
the current term, the net rent then payable under this Lease, and stating
whether or not, to the best knowledge of the person executing such certificate
on behalf of Landlord, Tenant is in default in performance of any covenant,
agreement or condition contained in this Lease and, if so, specifying each such
default of which the person executing such certificate may have knowledge.
IN WITNESS WHEREOF, the parties hereto have executed this Lease and
affixed their seals as of the date first above written.
Witnesses: LANDLORD:
TRAVERSE SOFTWARE INVESTMENT L.L.C
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Authorized Agent
TENANT: Olmsted Engineering Co.
________________ By:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
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