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
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Annual Base Rent
Rate per SF
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Monthly Rent*
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New Term Commencement Date – two
(2) calendar months thereafter
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$
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-0-
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$
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-0-
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1 st day of the 3 rd calendar month after the New Term
Commencement
Date – 5/31/10
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$
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11.50/NNN
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$
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38,707.08
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6/01/10 – 5/31/11
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$
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11.79/NNN
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$
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39,683.18
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6/01/11 – 5/31/12
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$
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12.08/NNN
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$
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40,659.27
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6/01/12 – 5/31/13
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$
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12.38/NNN
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$
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41,669.02
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6/01/13 – 5/31/14
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$
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12.69/NNN
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$
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42,712.43
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6/01/14 – 5/31/15
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$
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13.01/NNN
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$
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43,789.49
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6/01/15 – 5/31/16
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$
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13.34/NNN
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$
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44,900.22
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*
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Plus applicable state sales
tax.
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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