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SECOND AMENDMENT TO LEASE

Lease Agreement

SECOND AMENDMENT TO LEASE | Document Parties: ASSET ACCEPTANCE CAPITAL CORP | Asset Acceptance, LLC | WI Commercial Properties, Inc You are currently viewing:
This Lease Agreement involves

ASSET ACCEPTANCE CAPITAL CORP | Asset Acceptance, LLC | WI Commercial Properties, Inc

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Title: SECOND AMENDMENT TO LEASE
Date: 3/6/2009
Industry: Business Services     Sector: Services

SECOND AMENDMENT TO LEASE, Parties: asset acceptance capital corp , asset acceptance  llc , wi commercial properties  inc
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Exhibit 10.11

SECOND AMENDMENT TO LEASE

THIS SECOND AMENDMENT TO LEASE (this “Amendment”) is entered into as of the   15th   day of December, 2008, by and between WI Commercial Properties, Inc. (“Landlord”) and Asset Acceptance, LLC, a Delaware limited liability company (“Tenant”).

RECITALS:

A. First Industrial Development Services, Inc., a Maryland corporation (“FIDS”), and Tenant executed and entered into that certain Business Lease dated August 25, 2003, as amended by that certain First Amendment to Lease dated as of December 29, 2003 (the “Lease”) whereby Tenant let the premises containing approximately 52,280 square feet located at 2840 S. Falkenburg Road, Riverview, Florida (the “Premises”).

B. Landlord is the successor in interest to FIDS as Landlord under the Lease.

C. The parties desire to (i) extend the Term and (ii) amend the Lease in certain other respects as set forth in this Amendment.

NOW, THEREFORE , in consideration of the covenants and promises contained herein, the parties agree as follows:

1. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Lease.

2. The parties acknowledge and affirm that the Expiration Date under the First Amendment to Lease is May 31, 2009, rather than April 30, 2009.

3. The Lease is hereby amended to extend the Term by an additional seven (7) years, so that the Expiration Date is extended and revised to be May 31, 2016 (the “New Expiration Date”).

4. The square footage of the Premises shall be reduced from 52,280 square feet to 40,390 square feet as per the attached Exhibit “A”. The exact square footage will be determined subject to BOMA standards and certified by Landlord’s architect. Base Rent (as set forth below) shall be based upon the Premises containing 40,390 square feet. If the exact square footage is less than 40,390 when certified by the architect, Base Rent shall be reduced proportionately.

5. Base Rent payable under the Lease shall be reduced commencing the earlier of (i) June 1, 2009, or (ii) the date on which Tenant advises Landlord in writing that the space is reduced (the “New Term Commencement Date”). Base Rent for any partial month shall be prorated on a per diem basis. Base Rent beginning on the New Term Commencement Date through the New Expiration Date shall be as follows:

 

1


Period

  

Annual Base Rent
Rate per SF

  

Monthly Rent*

New Term Commencement Date – two (2) calendar months thereafter

  

$

-0-

  

$

-0-

1 st day of the 3 rd calendar month after the New Term Commencement
Date – 5/31/10

  

$

11.50/NNN

  

$

38,707.08

6/01/10 – 5/31/11

  

$

11.79/NNN

  

$

39,683.18

6/01/11 – 5/31/12

  

$

12.08/NNN

  

$

40,659.27

6/01/12 – 5/31/13

  

$

12.38/NNN

  

$

41,669.02

6/01/13 – 5/31/14

  

$

12.69/NNN

  

$

42,712.43

6/01/14 – 5/31/15

  

$

13.01/NNN

  

$

43,789.49

6/01/15 – 5/31/16

  

$

13.34/NNN

  

$

44,900.22

 

 

*

Plus applicable state sales tax.

6. Section 1.14 of the Lease is revised and amended so that beginning as of the New Term Commencement Date, Tenant’s Proportionate Share shall be that fraction, the numerator of which is the total square footage of the Premises (as determined pursuant to Section 4 of this Amendment), and the denominator of which is the total leasable square footage of the Building. Tenant’s Proportionate Share of Operating Expenses payable for the 2009 Operating Year shall be prorated accordingly.

7. In addition, Landlord shall be responsible to complete all work set forth on Exhibit B attached hereto (the “Tenant Improvements”), at Landlord’s own cost and expense. All work is to be performed during non-working hours (after 9 PM and before 8 AM) or as agreed upon between Landlord and Tenant, so as not to disturb Tenant’s business, except as may be necessitated by governmental authorities (county inspections, etc.). Any costs and expenses associated with additional work that are not included in the Tenant Improvements (the “Excess Tenant Improvements”) shall be paid for by Tenant. Excess Tenant Improvements shall be set forth in a written work order and shall be executed by Tenant and Landlord. If Excess Tenant Improvements include any (i) management fee or (ii) construction fee payable to Landlord, such fees must be approved in writing by Tenant. Such approval shall not be unreasonably withheld, conditioned or delayed.

Landlord shall submit the Schematic Plans (the “Plans”) and a full project Schedule (the “Schedule”) for the Tenant Improvements and a statement specifying any “long lead time items” included as a part of the Tenant Improvements and the alternatives which will avoid such delay to Tenant by December 22, 2008. Tenant shall approve or disapprove Plans, the Schedule and, if included, the statement within ten (10) business days of their receipt.

If Tenant approves the Plans and Schedule or approves a Tenant Improvement item which Landlord has specified as a cause of delay (“Tenant Delay”) or the cost of which

 

2


Landlord has specified was not included in the Tenant Improvements, then the time that the Premises shall be required to be Substantially Complete (hereinafter defined) shall be extended for each day of Tenant Delay regardless of whether such date extends beyond the Completion Date (hereinafter defined), without penalty to Landlord, and Tenant shall be responsible for the cost of such Excess Tenant Improvements, if applicable. There shall be no Tenant Delay unless Tenant has expressly approved the same in writing. Tenant shall deposit with Landlord fifty percent (50%) of the cost of the Excess Tenant Improvements within ten (10) days of Tenant’s approval of the Plans, the Schedule and the statement, if included, and Tenant’s execution of the work order for the Excess Tenant Improvements. Tenant shall pay the balance of the cost of the Excess Tenant Improvements when the Premises are Substantially Complete (hereinafter defined).

If Tenant fails to disapprove the Plans, the Schedule, or if included, the statement, within ten (10) business days of receipt thereof, the same shall be deemed approved. If the Plans, Schedule or statement are disapproved, Tenant shall have ten (10) business days to submit proposed changes to the Plans, Schedule and/or statement and Landlord shall submit revised Plans, Schedule and/or statement, as applicable. Landlord shall not unreasonably refuse to satisfy any objections of Tenant to the Plans, Schedule or statement, and Tenant shall not unreasonably withhold its approval. The review and revision of the Plans, Schedule and statement shall continue as described herein until approved by Tenant. Landlord must apply for all necessary permits immediately after Tenant approves the Plans, the Schedule, the statement (if included) and the work order for Excess Tenant Improvements, if any, made simultaneously with such approval. Any specific permitting delay due to Excess Tenant Improvements requested subsequent to such approval shall be a Tenant Delay, which must be approved by Tenant in writing.

All Tenant Improvements shall be Substantially Complete (hereinafter defined) within one hundred twenty (120) days after the later of (i) Tenant approval of the Plans, the Schedule, the statement (if included) and the work order for Excess Tenant Improvements, if any, executed simultaneously therewith, or (ii) the issuance of the permits required pursuant to such approval, so long as the permits are issued within thirty (30) days of such approval (the “Completion Date”). The Completion Date is estimated to be June 1, 2009. Tenant shall use its best efforts to coordinate and timely assist Landlord in managing occupied work areas that are affected by the Tenant Improvements (i.e., boxing or removing work station contents prior to re-carpeting, relocating furniture, fixtures, and equipment in areas to be constructed, etc.). The Premises shall be deemed to be “Substantially Complete” upon completion of the Tenant Improvements, except for minor, insubstantial or punch-list details of construction, decoration or mechanical adjustments, which remain to be done. In the event of any dispute as to whether the Tenant Improvements are Substantially Complete, the decision of Landlord’s architect shall be final and binding on the parties; provided, however, that Base Rent shall be reduced on the New Term Commencement Date in accordance with Section 5 of this Amendment and not when the Tenant Improvements are Substantially Complete.

In the event that Landlord fails to Substantially Complete the Tenant Improvements by the Completion Date, and provided that such failure to Substantially Complete the Tenant Improvements is not caused by Tenant Delay, Landlord shall be liable to Tenant for liquidated damages in the amount of a per diem Base Rent abatement (the “Liquidated Damages”). Tenant shall give Landlord a written notice of Landlord’s failure to timely Substantially Complete the Tenant Improvements, and Landlord shall have a period of seven (7)

 

3


business days from the date of said written notice to cure. In the event that Landlord does not Substantially Complete the Tenant Improvements within the seven (7) business day period, Tenant shall have the right to set off against the Base Rent the Liquidated Damages which accrue from the day after the Completion Date though the date on which the Tenant Improvements are Substantially Complete.

8. At any time after June 1, 2013, Tenant shall be entitled to a refurbishment allowance of up to $2.00/sf that shall be used at Tenant’s discretion for general refurbishment (the “Refurbishment Expenses”) including, but not limited to, carpet and paint and/or minor modifications to this facility, which are a


 
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