EXHIBIT 10.29
FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment") is made
this 25th day of June, 2004, by and between VAN DYKE OFFICE LLC, a Michigan
limited liability company (the "Landlord"), whose address is 00000 Xxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000; and ASSET ACCEPTANCE, LLC, a Delaware
limited liability company (the "Tenant"), whose address is 0000 Xxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000.
RECITALS:
This First Amendment is based on the following recitals:
A. Landlord and Tenant have entered into that certain Lease Agreement
dated October 31, 2003 as may be amended from time to time ("Lease"), pursuant
to which Landlord has agreed to construct a 200,000 square foot office building
("Asset Acceptance Building") and parking deck ("Asset Acceptance Parking Deck")
to be located on the Leased Premises.
B. Under the terms of the Lease, Landlord is to construct the Asset
Acceptance Building pursuant to certain Plans, Specifications and Allowance,
also known as Landlord's Work, all as more particularly set forth in the Lease.
C. Landlord has requested Tenant's consent to the construction of a
second building consisting of approximately 75,000 to 100,000 square feet
("Second Phase Building") and a second parking deck ("Second Phase Parking
Deck") with the Second Phase Building (collectively, the "Second Phase Building
and Second Phase Parking Deck" are sometimes collectively referred to as "Second
Phase Development"), all to be located on the Leased Premises.
D. In constructing the Second Phase Development, the configuration and
size of the Leased Premises will change, particularly with respect to the common
areas and the Asset Acceptance Parking Deck being built as part of Landlord's
Work under the Lease.
E. In exchange for Tenant's consent to the Second Phase Development,
the parties are amending the Lease.
F. The parties desire to set forth their agreements in writing as
provided below.
NOW, THEREFORE, the parties agree as follows:
1. The defined terms in the Lease shall have the same meanings in this
First Amendment.
2. In consideration of the covenants of Landlord set forth in this
First Amendment, Tenant hereby consents to the construction of the Second Phase
Development subject to the terms of this First Amendment.
3. (a) Subject to the terms of Paragraph 5 hereof, the Site Plan
attached as Exhibit B to the Lease is hereby amended, restated and replaced with
the Site Plan attached hereto as EXHIBIT A ("Revised Site Plan") which is a
preliminary site plan. Upon the Commencement of Construction (as defined below)
on part, but not all of the Second Phase Building or Second Phase Parking Deck,
Landlord shall convert the original Leased Premises into either a three (3) or a
four (4) unit condominium, consisting of the Asset Acceptance Building, Asset
Acceptance Parking Deck, Second Phase Building and Second Phase Parking Deck, as
applicable, together with appropriate general and limited common elements. Upon
Commencement of Construction on part, but not all of the Second Phase
Development, Landlord shall be obligated to record a Condominium Plan (as
defined below) approved by Tenant and Landlord shall have a continuing
obligation to amend the Condominium Plan once Commencement of Construction of
the remaining part of the Second Phase Development shall occur. For purposes of
this First Amendment, the term "Commencement of Construction" shall mean the
installation of any foundations as to any part of the Second Phase Development.
(b) Until the first to occur of Commencement of Construction or the
recording of the condominium plan approved by Tenant ("Condominium Plan"), which
approval shall not be unreasonably withheld ("Leased Premises Adjustment Date"),
the Leased Premises and, particularly, the "common areas" as defined in Section
2.04 of the Lease, shall consist of every part of the original Leased Premises.
From and after the Leased Premises Adjustment Date, the Leased Premises shall be
deemed to consist of (i) the units comprising the Asset Acceptance Building and
the Asset Acceptance Parking Deck under the Condominium Plan as amended from
time-to-time, (ii) any land which is not part of the Second Phase Development
because Commencement of Construction has not begun (for example, if the Second
Phase Parking Deck is constructed prior to Second Phase Building, the Leased
Premises will include any land intended to be part of the Second Phase Building
until Commencement of Construction of the Second Phase Building) and (iii)
rights to use the limited and general common elements (the limited common
elements would constitute the exclusive "common areas" as defined in Section
2.04 of the Lease). General common element maintenance expenses shall be shared
in an equitable manner between Tenant and the occupiers and users of the Second
Phase Development. The Condominium Plan shall include common and reciprocal
easements to use all utility lines, roadways, curb cuts, walkways, driveways,
parking areas and infrastructure improvements which are located on the Leased
Premises and Second Phase Development, except that the occupiers or users of the
Second Phase Development shall have no right to use the Asset Acceptance Parking
Deck, and Tenant shall have no right to use the Second Phase Parking Deck.
4. Notwithstanding anything to the contrary in Section 2.05 of the
Lease, except for its equitable share of general common element maintenance
expenses to be set forth in the Condominium Plan, Tenant shall not be charged or
assessed for any repair, maintenance, and construction costs and/or Operating
Expenses related to the Second Phase Development. Landlord shall employ such
procedures and accounting principles as reasonably requested by Tenant to ensure
that Tenant is not charged or assessed for any repairs, maintenance and
construction costs and/or Operating Expenses related to the Second Phase
Development.
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5. Before Landlord obtains site plan approval for the Second Phase
Development, Landlord shall present all site plans, construction drawings,
easements, agreements, plans and specifications regarding the Second Phase
Development to Tenant for its approval, which approval shall not be unreasonably
withheld, delayed or conditioned. Landlord agrees that building materials,
design and aesthetics of the Second Phase Development will be consistent and
harmonious as to the Asset Acceptance Building and Asset Acceptance Parking
Deck. After Landlord so obtains final site plan approval, such approved site
plan ("Approved Site Plan") shall be deemed to have replaced the Revised Site
Plan attached hereto as EXHIBIT A without any further action. It is expressly
acknowledged and agreed by Landlord that, except as set forth herein, Landlord
will make no further changes, alterations or modifications to (a) the approved
Condominium Plan, or (b) the Leased Premises and the Second Phase Development as
shown on the Approved Site Plan, without the prior written consent of Tenant
which Tenant may withhold in its sole discretion; provided, however, Landlord
may make changes, alterations or modifications to the Leased Premises which are
not in excess of Twenty-Five Thousand ($25,000) Dollars, and to the Second Phase
Development which are not in excess of Seventy-Five Thousand ($75,000) Dollars,
without Tenant's written consent so long as Landlord is not in default under the
Lease.
6. The Landlord's Work set forth in Exhibit D to the Lease is hereby
amended and modified to provide that Landlord will upgrade the ceiling tiles,
interior doors and door jambs pursuant to materials and specifications
acceptable to Tenant at Landlord's sole cost as described in EXHIBIT B attached
hereto (collectively, "Tenant Upgrades"). The additional cost of such Tenant
Upgrades shall not be part of the Allowance under the Lease. In addition,
Landlord hereby grants to Tenant the right to audit the calculation of costs for
Landlord Work below the ceiling grade if Tenant is charged for an amount in
excess of the Allowance, exclusive of the costs of the Tenant Upgrades.
7. In addition, Landlord shall contribute Three Hundred Thousand
Dollars ($300,000) towards installation of a generator pursuant to
specifications acceptable to Tenant as part of Landlord's Work. This
contribution shall not be made until such time as Commencement of Construction
begins on the Second Phase Building. Such payment shall be made upon Landlord's
receipt of payment under the first construction draw request as to the Second
Phase Building but not later than ninety (90) days from Commencement of
Construction. This payment will be reduced by ten percent (10%) of such amount
annually for the yearly period of time commencing upon the Commencement Date of
the Lease and ending upon the Commencement of Construction for the Second Phase
Building. Such adjustment shall not be made for partial years. Notwithstanding
anything to the contrary, the minimum amount that Tenant will contribute towards
the generator is One Hundred Eighty Thousand Dollars ($180,000). This amount
shall be due regardless of whether or not there is no Commencement of
Construction as to the Second Phase Development, and such amount shall be paid
within forty-eight (48) months from the Commencement Date of the Lease. If
Landlord shall fail to contribute any amounts due as to the generator, Tenant
shall have the right to offset such amounts from any rent or other amounts owed
under the Lease after giving Landlord notice and a thirty (30) day period within
which to make such contribution. In addition, the contribution of this amount is
also guaranteed by
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Xxxxxxx Xxxx Xxxxxxxxx, L.L.C., a Michigan limited liability company, ("Landlord
Guarantor") pursuant to that certain Guaranty dated October 30, 2003 ("Landlord
Guaranty").
8. Landlord agrees that it will construct a park ("Park") in an area
where the Second Phase Building will be located. Attached hereto as EXHIBIT C is
a preliminary drawing showing the Park. The Park shall be for the sole use of
the Tenant Group (as defined below). Landlord agrees to employ all commercially
reasonable procedures that are necessary to ensure the exclusive use of the Park
by the Tenant Group at the sole cost of Landlord. Upon Commencement of
Construction of the Second Phase Building, the Leased Premises shall no longer
contain the footprint of such Second Phase Building and Landlord shall have the
right to remove the Park.
9. Landlord agrees to upgrade the Asset Acceptance Parking Deck to a
brick finish consistent and harmonious with the finish of the Asset Acceptance
Building. Prior to Landlord installing such brick finish, Landlord shall submit
preliminary drawings to Tenant for its review and approval which approval shall
not be unreasonably withheld, delayed or conditioned. The Asset Acceptance
Parking Deck will be used solely by Tenant, its employees, agents, guests,
invitees, successors and assigns, (collectively, "Tenant Group"). Landlord shall
use security arrangements reasonably acceptable to Tenant as to the Asset
Acceptance Parking Deck and Second Phase Parking Deck. Landlord shall, at its
cost and expense, employ such commercially reasonable procedures, rules and
regulations that are necessary to ensure that the Asset Acceptance Parking Deck
is used solely by the Tenant Group.
10. Notwithstanding anything to the contrary contained in Article II of
the Lease and Exhibit E of the Lease which is the Rent Schedule, Tenant's base
rental rate in the Rent Schedule will be the lesser of the applicable base rent
in the Rent Schedule and the lowest base rental rate (after taking into account
any below market rent abatements or concessions) being paid by any tenant in the
Second Phase Development. Upon reasonable request, Landlord shall provide
certified rent rolls showing the base rental rates in the Second Phase
Development. The base rental rate in the Rent Schedule under the Lease will be
adjusted on the first day of the first full calendar month following any lease
of space to a tenant (other than Tenant and/or any person or entity affiliated
with Tenant) in the Second Phase Development ("Second Phase Lease") at a base
rental rate lower than Tenant's base rental rate under Schedule E of the Lease.
This adjustment shall be effective for the entire term of the Lease. For
example, if Tenant is paying $15 per square foot as base rent under the Lease
and a tenant is leased space pursuant to a written lease or otherwise in the
Second Phase Development at $10 per square foot, regardless of the other terms
of that tenancy in the Second Phase Development, the base rental rate for the
Leased Premises and the Rent Schedule under the Lease shall become $10 per
square foot, commencing on the rent commencement date of such Second Phase
Lease. Landlord and Tenant will execute the amendments to the Lease, setting
forth the new base rent under the Rent Schedule. The provisions of this Section
10 shall automatically expire and be of no further force or effect upon the
earlier of (a) the sale or transfer of Landlord's interest in the Second Phase
Development so long as such sale or transfer is to
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Tenant or an independent third party purchaser, subject to any reduction in
Tenant's base rental rate as provided in this Paragraph 10, and (b) the date
which is five (5) years from the Commencement of Construction of the Second
Phase Building.
11. Section 1.04 of the Lease is amended to provide that the Right of
First Refusal shall extend to the Second Phase Development. As such, Landlord
must also notify Tenant and give Tenant the right to match any bona fide third
party offer received by Landlord to sell any part of the Second Phase
Development. This Right of First Refusal shall exist separate and independent
from the Right of First Refusal as to the Building and the Leased Premises as
modified by this First Amendment. Tenant shall also have the right to record an
appropriate affidavit or other evidence of this Right of First Refusal as to the
Leased Premises and/or Second Phase Development.
12. In addition to the Right of First Refusal set forth in Section 1.04
of the Lease, as amended by Section 11 above, Tenant shall have the right of
first refusal as to any proposed lease or tenancy as to the Second Phase
Development. Tenant shall have fifteen (15) days from the presentment of any
bona fide written offer to lease received by Landlord to accept such offer to
lease such space in the Second Phase Building on the same terms and conditions
of the proposed offer. If Tenant does not exercise such right of first refusal
to lease, such right shall expire as to the space under such offer to lease.
Such right of first refusal shall not extend to any proposed lease or tenancy to
Landlord or its affiliates for any space which is less than twenty-five thousand
twenty (25,020) square feet.
13. Section 22.05 of the Lease is amended to provide that Landlord
shall send any notice to Tenant directly to the attention of Xxxxxx Xxxx,
General Counsel.
14. Notwithstanding anything to the contrary in Section 22.12 of the
Lease, Landlord's obligations as to parking spaces are seven (7) parking spaces
for each 1,000 square feet of Built Out Square Footage up to a total of 1,400
parking spaces. Accordingly, unless and until the Vanilla Box Square Footage is
built out, Landlord shall be obligated to provide 1,050 parking spaces.
15. Tenant hereby waives its termination rights set forth in Sections
1.02 and 1.05 of the Lease. In addition, Tenant acknowledges receipt of Landlord
Documentation and that it has no Objections thereto.
16. (a) Section 4.01 of the Lease is hereby amended as follows:
"Landlord must obtain a temporary certificate of occupancy ("Temporary C of O")
for its build out of the Built Out Square Footage on or before October 1, 2004
("Delivery Date"). If Landlord does not obtain such Temporary C of O on or
before the Delivery Date, then Landlord will be responsible for Tenant's actual
rent holdover costs charged under Tenant's current leases at 6985, 7027 and 0000
Xxxxxx Xxxx until Landlord obtains the Temporary C of O, but only to the extent
that such holdover costs (a) exceed the amount of monthly base rent paid by
Tenant under such leases in August 2004, and (b) do not exceed 50% of such
monthly base rent ("Tenant's Holdover Costs"). If Landlord does not obtain the
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Temporary C of O on or before November 3, 2004, in addition to Tenant's Holdover
Costs, Tenant shall receive two (2) days of rent abatement for each day after
October 1, 2004 that Landlord has not obtained the Temporary C of O."
(b) In consideration of the foregoing provision, Landlord
acknowledges and agrees that there are no delays as of the date hereof,
resulting in an Excused Delay which would extend the Delivery Date, and Landlord
hereby releases, waives and disclaims the right to make any such claim for an
Excused Delay as it relates to the Delivery Date. In addition, Landlord agrees
that there is no Excused Delay as to the steel requirements with respect to the
Asset Acceptance Building.
17. Landlord agrees to pay all costs and expenses, including, without
limitation, the attorney fees of Tenant in negotiating and finalizing this First
Amendment. Such reimbursement by Landlord will occur upon the execution of this
First Amendment by Tenant.
18. Landlord Guarantor hereby joins in this First Amendment to
acknowledge and agree that the terms of this First Amendment are also guaranteed
in full under the Landlord Guaranty and that this First Amendment does not
amend, modify or alter the Landlord Guarantor's obligation under the Landlord
Guaranty. If Tenant shall make a demand under the Landlord Guaranty, the
Landlord Guarantor shall be responsible for all of Landlord's obligations under
this First Amendment and the Lease.
19. Asset Acceptance Holdings LLC ("Tenant Guarantor") hereby joins in
this First Amendment to acknowledge and agree that the terms of this First
Amendment are also guaranteed in full under that certain Guaranty dated October
31, 2003 ("Tenant Guaranty"), and that this First Amendment does not amend,
modify or alter the Tenant Guarantor's obligation under the Tenant Guaranty. If
Landlord shall make a demand under the Tenant Guaranty, the Tenant Guarantor
shall be responsible for all of Tenant's obligations under this First Amendment
and the Lease.
20. Except as amended hereby, the Lease, Landlord's Guaranty, and
Tenant's Guaranty are restated and republished in their entirety and remain in
full force and effect. To the extent that there are any conflicts or
inconsistencies between the provisions contained in this First Amendment and the
provisions contained in the Lease, the provisions of this First Amendment shall
be deemed to be superseding and controlling.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this First Amendment the
date and year first above written.
VAN DYKE OFFICE LLC,
a Michigan limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Manager
"Landlord"
ASSET ACCEPTANCE, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
------------------------------------
Xxxxxxxxx X. Xxxxxxx XX
Its: President
"Tenant"
XXXXXXX XXXX XXXXXXXXX, LLC,
a Michigan limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Manager
"Landlord Guarantor"
ASSET ACCEPTANCE HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
------------------------------------
Xxxxxxxxx X. Xxxxxxx XX
Its: President
"Tenant Guarantor"
Exhibits:
A -- Revised Site Plan
B -- Tenant Upgrades
C -- Preliminary Site Plan of Park
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EXHIBIT A
Revised Site Plan
A-1
EXHIBIT B
Tenant Upgrades
The materials and specifications for the upgraded ceiling tiles, interior doors
and door jambs are as follows:
Ceiling grid panels
Xxxxxxxxx Second Look II Cortega Tegular edge panel, in lieu of square edge
Radar.
Doors and frames
Prefinished Oak veneer doors and prefinished aluminum frames, in lieu of solid
core legacy doors with prefinished Timely knock down frames
B-1
EXHIBIT C
Preliminary Site Plan of Park
C-1
SECOND AMENDMENT TO LEASE AGREEMENT
This SECOND AMENDMENT TO LEASE AGREEMENT ("Second Amendment") is made
this 1st day of October, 2004, by and between VAN DYKE OFFICE LLC, a Michigan
limited liability company (the "Landlord"), whose address is 00000 Xxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000; and ASSET ACCEPTANCE, LLC, a Delaware
limited liability company (the "Tenant"), whose address is 0000 Xxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000.
RECITALS:
This First Amendment is based on the following recitals:
A. Landlord and Tenant have entered into that certain Lease Agreement
dated October 31, 2003 which was amended pursuant to a First Amendment to Lease
Agreement ("First Amendment") dated as of June 25, 2004 (as amended, the
"Lease"), pursuant to which Landlord has agreed to construct a 200,000 square
foot office building ("Asset Acceptance Building") and parking deck ("Asset
Acceptance Parking Deck") to be located on the Leased Premises.
B. Under the terms of the Lease, Landlord is to construct the Asset
Acceptance Building pursuant to certain Plans, Specifications and Allowance,
also known as Landlord's Work, all as more particularly set forth in the Lease.
C. The parties wish to modify certain provisions of the Lease in order
to more accurately reflect their understanding of the schedule of the
Construction.
D. The parties desire to set forth their agreements in writing as
provided below.
NOW, THEREFORE, the parties agree as follows:
1. The defined terms in the Lease shall have the same meanings in this
Second Amendment.
2. The first sentence of Section 1.02 of the Lease is amended to read
in its entirety as follows:
"The term of this Lease shall be for a period of ten years plus any
option period as provided below (the "Term") commencing upon the later
of (i) the issuance of a temporary certificate of occupancy by the City
of Xxxxxx or (ii) December 1, 2004 (the "Commencement Date"), provided,
however, if the Commencement Date shall be other than on the first of
the month, the term shall be adjusted to the first of the following
month and the term of the Lease thereby extended for such fraction of
such month."
3. The first paragraph of Section 2.01 of the Lease is amended to read
in its entirety as follows:
"For the month of November, 2004, Tenant shall pay rent to Landlord in
the amount of Seventy Four Thousand Four Hundred Seventy Nine and
17/100 ($74,479.17) Dollars. For the first year of the Term from and
after the Commencement date, Tenant shall only pay rent on One Hundred
Fifty Thousand (150,000) square feet. From month thirteen through the
end of the Term, Tenant shall pay rent on the entire Two Hundred
Thousand (200,000) square feet as set forth on the Rent Schedule. Asa
result the total rent payable
during the term of this Lease shall be payable as indicated on the
attached Rent Schedule as more particularly described on Exhibit E
attached hereto ("Rent Schedule").
4. Section 2.01 of the Lease is amended to add the following paragraph
at the conclusion:
"No later than October 26, 2004, Landlord shall supply Tenant with wire
transfer instructions for the payment of Rent."
5. Section 2.02 of the Lease is amended to add the following sentence
at the conclusion:
"For the month of November, 2004, Tenant shall pay 50% of the Operating
Expenses as defined in Section 2.05 of the Lease."
6. Section 8.01 of the Lease is amended to provide that, in addition to
carrying insurance during the Term, Tenant shall be required to carry the
requisite insurance between October 18, 2004 and the Commencement Date.
7. Section 16 (a) of the First Amendment (which amended Section 4.01 of
the original Lease) is amended to read in its entirety as follows:
"Landlord must obtain a temporary certificate of occupancy ("Temporary
C of O") for its build out of the Built Out Square Footage on or before
November 1, 2004 ("Delivery Date"). If Landlord does not obtain such
Temporary C of O on or before the Delivery Date, then Landlord will be
responsible for Tenant's actual rent holdover costs charged under
Tenant's current leases at 6985, 7027 and 0000 Xxxxxx Xxxx until
Landlord obtains the Temporary C of O, but only to the extent that such
holdover costs (a) exceed the amount of monthly base rent paid by
Tenant under such leases in September, and (b) do not exceed 50% of
such monthly base rent ("Tenant's Holdover Costs"). If Landlord does
not obtain the Temporary C of O on or before December 3, 2004, in
addition to Tenant's Holdover Costs, Tenant shall receive two (2) days
of rent abatement for each day after November 1, 2004 that Landlord has
not obtained the Temporary C of O."
8. Landlord shall use best efforts to complete the Asset Acceptance
Parking Deck as soon as possible, with an estimated completion date on or before
January 15, 2005. From November 10, 2004 until such parking deck is completed,
Landlord shall at all times cause at least 500 surface level parking spaces to
be available on the Property for Tenant employee parking. If Tenant needs more
parking spaces during such time, Landlord will, at its sole cost, provide Tenant
with shuttle service for its employees from mutually acceptable parking
locations upon property owned by Landlord's affiliate located on Xxxxxx Merrelh
Drive, during the following hours:
Monday through Friday 7:00 a.m. until 9:00 p.m.
Saturday As needed between
8:00 a.m. until 12:30 p.m.
9. Landlord agrees that Tenant may begin the assembly and installation
of furniture, workstations and related items on the 3rd and 4th floor of the
Asset Acceptance Building no later than October 18, 2004. Without limiting the
foregoing right of Tenant and its vendors to
assemble and install furniture, workstations and related items at any time,
Tenant agrees that prior to November 1, 2004, the use of the elevators by the
Tenant or its vendors shall be limited to the period commencing at 5:00 p.m. and
ending at 6:00 am To the extent that Landlord has not yet received all necessary
elevator certifications, all extra costs and liabilities associated therewith
shall be borne by Landlord, including additional costs charged and/or mandated
by Xxxx Elevator Company. In addition, if possible, Landlord, at Tenant's
request, will provide (at Landlord's cost) a sky-lift to lift Tenant's furniture
into the upper floor windows of the building. The foregoing entry rights are
subject to Landlord's receipt of Tenant's insurance certificates in accordance
with Section 8.01 of the Lease, as amended by Section 6 hereof. Prior to
November 1, 2004, during all times that Tenant and/or its vendors are on site,
Landlord, at its own expense, may hire a security company to patrol the Asset
Acceptance Building for theft or damage. Tenant shall provide Landlord with
reasonable notice prior to entering the Asset Acceptance Building so that
Landlord may notify the security company.
10. Tenant agrees that it shall pay Landlord's invoice number 1927 in
the amount of Four Hundred Seventy Five Thousand and 00/100 Dollars in two equal
installments of Two Hundred Thirty Seven Thousand Five Hundred and 00/100
Dollars. The first installment shall be paid on October 5, 2004 and the second
installment shall be paid on October 11, 2004.
11. In consideration of the foregoing provision, Landlord acknowledges
and agrees that there are no delays as of the date of this Second Amendment,
resulting in an Excused Delay which would extend the Delivery Date, and Landlord
hereby releases, waives and disclaims the right to make any such claim for an
Excused Delay as it relates to the Delivery Date.
12. Landlord Guarantor hereby joins in this Second Amendment to
acknowledge and agree that the terms of this First Amendment are also guaranteed
in full under the Landlord Guaranty and that this First Amendment does not
amend, modify or alter the Landlord Guarantor's obligation under the Landlord
Guaranty. If Tenant shall make a demand under the Landlord Guaranty, the
Landlord Guarantor shall be responsible for all of Landlord's obligations under
this First Amendment and the Lease.
13. Asset Acceptance Holdings LLC ("Tenant Guarantor") hereby joins in
this Second Amendment to acknowledge and agree that the terms of this Second
Amendment are also guaranteed in full under that certain Guaranty dated October
31, 2003 ("Tenant Guaranty"), and that this Second Amendment does not amend,
modify or alter the Tenant Guarantor's obligation under the Tenant Guaranty. If
Landlord shall make a demand under the Tenant Guaranty, the Tenant Guarantor
shall be responsible for all of Tenant's obligations under this Second Amendment
and the Lease.
14. Except as amended hereby, the Lease, Landlord's Guaranty, and
Tenant's Guaranty are restated and republished in their entirety and remain in
full force and effect. To the extent that there are any conflicts or
inconsistencies between the provisions contained in this Second Amendment and
the provisions contained in the Lease, the provisions of this Second Amendment
shall be deemed to be superseding and controlling.
IN WITNESS WHEREOF, the parties have executed this Second Amendment the date and
year first above written,
LANDLORD:
VAN DYKE OFFICE LLC,
a Michigan limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Manager
TENANT:
ASSET ACCEPTANCE, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
---------------------------
Xxxxxxxxx X. Xxxxxxx XX
Its: President
LANDLORD GUARANTOR:
XXXXXXX XXXX XXXXXXXXX, LLC,
a Michigan limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
Its: Manager
TENANT GUARANTOR:
ASSET ACCEPTANCE HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxxxx X. Xxxxxxx XX
---------------------------
Xxxxxxxxx X. Xxxxxxx XX
Its: President
