10/20/03
EXHIBIT 10.9
INDUSTRIAL
LEASE AGREEMENT
THIS LEASE is executed this _____ day of _____________, 2000, by and
between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Landlord"), and ASSET ACCEPTANCE CORP., a Michigan corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Leased Premises (shown outlined on Exhibit A attached hereto): 000 Xxxx
Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Building"); located in
Regency Corporate Park (the "Park");
B. Rentable Area: approximately 10,000 square feet
The rentable square footage of the Leased Premises shall be subject to
final measurement based on the 1996 ANSI Standard Method of
Measurements adopted by BOMA. Landlord's determination of Rentable Area
using BOMA guidelines shall be deemed correct for all purposes
hereunder.
C. Tenant's Proportionate Share: 17.2%;
D. Minimum Annual Rent:
Year 1 $ 86,250.00 per year (nine months of rental)
Year 2 $118,450.00 per year
Year 3 $122,000.00 per year
Year 4 $125,700.00 per year
Year 5 $129,400.00 per year
Year 6 $133,300.00 per year
(Rent does not include applicable Florida State Sales Tax or Additional
Rent)
E. Monthly Rental Installments:
Months 01 -- 03 Abatement of Monthly Rental Installments
Months 04 -- 12 $ 9,583.33 per month
Months 13 -- 24 $ 9,870.83 per month
Months 25 -- 36 $10,166.66 per month
Months 37 -- 48 $10,475.00 per month
Months 49 -- 60 $10,783.33 per month
Months 61 -- 72 $11,108.33 per month
(Rent does not include applicable Florida State Sales Tax or Additional
Rent)
F. Intentionally deleted;
G. Lease Term: Six (6) years and zero (0) months;
H. Commencement Date: December 15, 2000;
I. Security Deposit: $11,858.14;
J. Guarantor(s): AAC Holding Corp.;
K. Broker(s): Xxxxxx & Associates, LLC, LC d/b/a Xxxxxx X.X. representing
Tenant;
L. Permitted Use: General office, warehousing and related purposes;
M. Address for notices:
Landlord: Duke-Weeks Realty Limited Partnership
00000 Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
With a copy to: Duke-Weeks Realty Limited Partnership
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Legal Department
Tenant: Asset Acceptance Corp.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
(000) 000-0000
Attn: Xxxx Xxxxxx, VP - Finance
Address for rental and other payments:
Duke-Weeks Realty Limited Partnership
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
Exhibits attached hereto:
Exhibit "A": Site plan of Leased Premises
Exhibit "B": Tenant Improvements
Exhibit "C": Letter of Understanding
Exhibit "D": Special Stipulations
Section 1.02. Leased Premises. Landlord hereby leases to Tenant and
Tenant leases from Landlord, under the terms and conditions herein, the Leased
Premises.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease ("Lease Term") shall be for
the period of time and shall commence on the Commencement Date described in the
Basic Lease Provisions. If Landlord, for any reason whatsoever, cannot deliver
possession of the Leased Premises to Tenant on the Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom, but in that event there shall be a
proportionate reduction of rent covering the period between the Commencement
Date and the time when Landlord can deliver possession. If delay is longer than
three (3) months, Landlord will provide Tenant such space (not exceeding in area
the Leased Premises) as Landlord may have available, until the Leased Premises
can be completed, at no charge to Tenant. The term of this Lease shall be
extended by such delay. Upon delivery of possession of the Leased Premises to
Tenant, Tenant shall execute Landlord's Letter of Understanding form, attached
hereto as Exhibit "C", acknowledging (i) the Commencement Date of this Lease,
and (ii) that Tenant has accepted the Leased Premises. If Tenant takes
possession of and occupies the Leased Premises, Tenant shall be deemed to have
accepted the Leased Premises and that the condition of the Leased Premises and
the Building was at the time satisfactory and in conformity with the provisions
of this Lease in all respects.
Section 2.02. Construction of Tenant Improvements. Tenant has
personally inspected the Leased Premises and accepts the same "AS IS" without
representation or warranty by Landlord of any kind and with the understanding
that Landlord shall have no responsibility with respect thereto except to
construct in a good and workmanlike manner the improvements designated as
Landlord's obligations in the attached Exhibit B, which shall be in accordance
with and at the expense of the party indicated on Exhibit B and are based on
approved space plans and specifications mutually agreed upon by Landlord and
Tenant prior to the execution of this Lease.
Fifteen (15) days prior to the Commencement Date, Tenant shall have the
right and privilege of going onto the Leased Premises to install telephone and
furniture and to complete interior decoration work and to prepare the Leased
Premises for its occupancy, provided, however, that its schedule in so doing
shall be communicated to Landlord and the approval of Landlord secured so as not
to interfere with other work of Landlord being carried on at the time; and
provided further that Landlord shall have no responsibility or liability
whatsoever for any loss or damage to any of Tenant's leasehold improvements,
fixtures, equipment or any other materials installed or left in the Leased
Premises.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair.
Tenant shall also remove its personal property, trade fixtures and any of
Tenant's alterations designated by Landlord at the time of installation,
promptly repair any damage caused by such removal, and restore the Leased
Premises to the condition existing prior to the installation of such items. If
Tenant fails to do so, Landlord may restore the Leased Premises to such
condition at Tenant's expense, Landlord may cause all of said property to be
removed at Tenant's expense, and Tenant hereby
agrees to pay all the costs and expenses thereby reasonably incurred. All Tenant
property which is not removed within ten (10) days following Landlord's written
demand therefor shall be conclusively deemed to have been abandoned by Tenant,
and Landlord shall be entitled to dispose of such property at Tenant's cost
without thereby incurring any liability to Tenant. The provisions of this
section shall survive the expiration or other termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at one hundred fifty percent (150%) of the
Monthly Rental Installment in effect at the end of the Lease Term, and otherwise
upon the terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent in such event shall not result in a renewal of
this Lease, and Tenant shall vacate and surrender the Leased Premises to
Landlord upon Tenant being given thirty (30) days' prior written notice from
Landlord to vacate whether or not said notice is given on the rent paying date.
This Section 2.04 shall in no way constitute a consent by Landlord to any
holding over by Tenant upon the expiration or earlier termination of this Lease,
nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum
Annual Rent plus the applicable Florida State sales tax in the Monthly Rental
Installments, in advance, without deduction or offset, beginning on the
Commencement Date and on or before the first day of each and every calendar
month thereafter during the Lease Term. The Monthly Rental Installment for
partial calendar months shall be prorated. Tenant has deposited with Landlord,
upon delivery of this Lease Agreement, an amount equal to Ten Thousand Two
Hundred Thirty and 20/100 ($10,230.20) Dollars, which is to be applied toward
the first month's Monthly Rental Installment and the applicable Florida State
Sales Tax.
Section 3.02. Additional Rent. In addition to the Minimum Annual Rent
Tenant shall pay to Landlord for each calendar year during the Lease Term, as
"Additional Rent," Tenant's Proportionate Share of: (a) all costs and expenses
incurred by Landlord during the Lease Term for Operating Expenses for the
Building and common areas (collectively "Common Area Charges"), estimated to be
$2.50 per rentable square foot of the Leased Premises for the first year of the
Lease Term; (b) insurance premiums and deductibles (payable by Landlord); and
(c) all Real Estate Taxes (as herein defined).
"Operating Expenses" shall mean all of Landlord's expenses for
operation, repair and maintenance to keep the Building and common areas in good
order, condition and repair (including all additional direct costs and expenses
of operation and maintenance of the Building which Landlord reasonably
determines it would have paid or incurred during such year if the Building had
been fully occupied), including, but not limited to, management or
administrative fees; utilities; stormwater discharge fees; license, permit,
inspection and other fees; fees and assessments imposed by any covenants or
owners' association; security services; and maintenance and repair of the
driveways, parking areas, exterior lighting, landscaped areas, walkways, curbs,
drainage strips, sewer lines, exterior walls, foundation, structural frame, roof
and gutters The cost of any capital improvement for the purpose of reducing
Operating Expenses shall be amortized over the useful life of such improvement
(as reasonably determined by Landlord), and only the amortized portion shall be
included in Operating Expenses.
"Real Estate Taxes" shall include any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or
common areas by any authority having the power to so charge or tax, together
with costs and expenses of contesting the validity or amount of Real Estate
Taxes which at Landlord's option may be calculated as if such contesting work
had been performed on a contingent fee basis (whether charged by Landlord's
counsel or representative; provided, however, that said fees are reasonably
comparable to the fees charged for similar services by others not affiliated
with Landlord, but in no event shall fees exceed thirty-three percent (33%) of
the good faith estimated tax savings). Additionally, Tenant shall pay, prior to
delinquency, all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all personal property of Tenant contained in the
Leased Premises.
Section 3.03. Payment of Additional Rent. Landlord shall estimate the
total amount of Additional Rent to be paid by Tenant during each calendar year
of the Lease Term, pro-rated for any partial years. Commencing on the
Commencement Date, Tenant shall pay to Landlord each month, at the same time the
Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the
estimated Additional Rent for such year. Within a reasonable time after the end
of each calendar year, Landlord shall submit to Tenant a statement of the actual
amount of such Additional Rent and within thirty (30) days after receipt of such
statement, Tenant shall pay any deficiency between the actual amount owed and
the estimates paid during such calendar year. In the event of overpayment,
Landlord shall credit the amount of such overpayment toward the next
installments of Minimum Rent.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall
incur certain additional unanticipated administrative and legal costs and
expenses if Tenant fails to timely pay any payment required hereunder.
Therefore, in addition to the other remedies available to Landlord hereunder as
set forth in Article 13 herein, if any payment required to be paid by Tenant to
Landlord hereunder shall become overdue, such unpaid amount shall bear interest
from the due date thereof to the date of payment at the prime rate (as reported
in the Wall Street Journal) of interest ("Prime Rate") plus six percent (6%) per
annum.
Section 3.05. Maximum Increase in Operating Expenses. Notwithstanding
anything in this Lease to the contrary, Tenant will be responsible for Tenant's
Proportionate Share of real estate taxes, including the reasonable costs and
expenses of contesting the validity or amount of real estate taxes, service
payments in lieu of real estate taxes, insurance premiums, utilities and
management or administrative fees applicable to such expenses ("Uncontrollable
Expenses"), without regard to the level of increase in any or all of the above
in any year or other period of time. Tenant's obligation to pay all other
Building Operating Expenses which are not Uncontrollable Expenses (herein
"Controllable Expenses") shall be limited to a five percent (5%) per annum
increase over the amount of the Controllable Expenses for the immediately
preceding calendar year, beginning with the actual Controllable Expenses for the
year ending December 31, 2001.
ARTICLE 4 - SECURITY DEPOSIT
Tenant, upon execution of this Lease, shall deposit with Landlord the
Security Deposit as security for the performance by Tenant of all of Tenant's
obligations contained in this Lease. In the event of a default by Tenant
Landlord may apply all or any part of the Security Deposit to cure all or any
part of such default; and Tenant agrees to promptly, upon demand, deposit such
additional sum with Landlord as may be required to maintain the full amount of
the Security Deposit. All sums held by Landlord pursuant to this section shall
be without interest. At the end of the Lease Term, provided that there is then
no uncured default, Landlord shall return the Security Deposit to Tenant.
ARTICLE 5 - USE
Section 5.01. Use of Leased Premises. The Leased Premises are to be
used by Tenant solely for the Permitted Use and for no other purposes without
the prior written consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use. Tenant shall (i) use
and maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including
without limitation those which shall impose upon Landlord or Tenant any duty
with respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, (iii) any protective
covenants applicable to the Park which are in effect and as may hereafter be
adopted and promulgated and (iv) comply with and obey all reasonable directions
of the Landlord, including any rules and regulations that may be adopted by
Landlord from time to time. Tenant shall not do or permit anything to be done in
or about the Leased Premises or common areas which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building or
injure or annoy them. Landlord shall not be responsible to Tenant for the
nonperformance by any other tenant or occupant of the Building of its lease or
of any rules and regulations. Landlord agrees to enforce such rules and
regulations in a non-discriminatory and uniform manner. Tenant shall not
overload the floors of the Leased Premises. All damage to the floor structure or
foundation of the Building due to improper positioning or storage of items or
materials shall be repaired by Landlord at the sole expense of Tenant, who shall
reimburse Landlord immediately therefor upon demand. Tenant shall not use the
Leased Premises, or allow the Leased Premises to be used, for any purpose or in
any manner which would invalidate any policy of insurance now or hereafter
carried on the Building or increase the rate of premiums payable on any such
insurance policy unless Tenant reimburses Landlord as Additional Rent for any
increase in premiums charged. On or before the Commencement Date, Tenant shall
take possession of, and, thereafter, continuously occupy the Leased Premises
during the term of this Lease, and operate thereon the normal business
operations of Tenant. Notwithstanding the foregoing, Tenant may vacate the
Leased Premises during the term of this Lease provided (i) Tenant is not
otherwise in default hereunder; (ii) Tenant continues to pay rent through the
end of the term of the Leased Premises as defined herein, (iii) Tenant
adequately secures the Leased Premises to prevent damage, destruction or
vandalism to the Leased Premises; (iv) Tenant continues such utilities to the
Leased Premises as will prevent any damage to the Leased Premises; (v) Tenant
continues to provide insurance for the Leased Premises and Tenant pays any
increased premium resulting from a lack of a tenant in the Leased Premises.
Therefore, except for physically occupying the Leased Premises, Tenant shall
otherwise comply with all its obligations under the Lease, including but not
limited to the obligation to pay all rental due hereunder.
Section 5.03. Landlord's Rights Regarding Use. In addition to the
rights specified elsewhere in this Lease, Landlord shall have the following
rights regarding the use of the Leased Premises or the common areas, each of
which may be exercised without notice or liability to Tenant, (a) Landlord may
install such signs, advertisements, notices or tenant identification information
as it shall deem necessary or proper; (b) Landlord shall have the right at any
time to control, change or otherwise alter the common areas as it shall deem
necessary or proper; and (c) Landlord or Landlord's agent shall be permitted to
inspect or examine the Leased Premises at any reasonable time upon reasonable
notice (except in an emergency when no notice shall be required), and Landlord
shall have the right to make any repairs to the Leased Premises which are
necessary for its preservation; provided, however, that any repairs made by
Landlord shall be at Tenant's expense, except as provided in Section 7.02
hereof. Landlord shall incur no liability to Tenant for such entry, nor shall
such entry constitute an eviction of Tenant or a termination of this Lease, or
entitle Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises.
However, if any services or utilities are jointly metered with other property,
Landlord shall make a reasonable determination of Tenant's proportionate share
of the cost of such utilities and services (at rates that would have been
payable if such utilities and services had been directly billed by the utilities
or services providers) and Tenant shall pay such share to Landlord within
fifteen (15) days after receipt of Landlord's written statement. Landlord shall
not be liable in damages or otherwise for any failure or interruption of any
utility or other Building service and no such failure or interruption shall
entitle Tenant to terminate this Lease or withhold sums due hereunder. In the
event of utility "deregulation", Tenant shall choose the service provider for
the Leased Premises, provided Tenant bears any and all costs associated with any
such change of service provider.
ARTICLE 7 - MAINTENANCE AND REPAIRS
Section 7.01. Tenant's Responsibility. During Lease Term, Tenant shall,
at its own cost and expense, maintain the Leased Premises in good condition,
regularly servicing and promptly making all repairs and replacements thereto,
including but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors, sprinkler and
plumbing systems, and shall obtain a preventive maintenance contract on the
heating, ventilating and air-conditioning systems, and provide Landlord with a
copy thereof. The preventive maintenance contract shall meet or exceed
Landlord's standard maintenance criteria, shall be between Tenant and a
dealer-authorized company acceptable to Landlord and Tenant, and shall, at a
minimum provide for an equipment check and tune-up service for the heating,
ventilating and air-conditioning systems each spring and fall of each year
during the Lease Term. The contract shall also provide for filter lubrication
and service every three (3) months during the Lease Term. In the event Tenant
fails to maintain the Leased Premises as required herein or fails to commence
repairs (requested by Landlord in writing) within thirty (30) days after such
request, or fails diligently to proceed thereafter to complete such repairs,
Landlord shall have the right in order to preserve the Leased Premises or
portion thereof, and/or the appearance thereof, to make such repairs or have a
contractor make such repairs and charge Tenant for the cost thereof as
additional rent, together with interest at the rate of twelve percent (12%) per
annum from the date of making such payments.
Section 7.02. Landlord's Responsibility. During Lease Term, Landlord
shall maintain in good condition and repair, and replace as necessary, the roof,
exterior walls, foundation and structural frame of the Building and the parking
and landscaped areas, the costs of which shall be included in Operating
Expenses. In the event there is a leakage in the windows, doors, sprinkler or
plumbing systems that is directly and solely the result of Landlord's negligence
or failure to maintain such items, Landlord shall make such repairs at
Landlord's sole cost and expense. Provided, however, that to the extent any of
the foregoing items require repair because of the negligence, misuse, or default
of Tenant, its employees, agents, customers or invitees, Landlord shall make
such repairs solely at Tenant's expense.
Section 7.03. Alterations. Tenant shall not permit alterations in or to
the Leased Premises unless and until the plans and the contractor have been
approved by Landlord in writing. As a condition of such approval, Landlord may
require Tenant to remove the alterations and restore the Leased Premises upon
termination of this Lease; otherwise, all such alterations shall at Landlord's
option become a part of the realty and the property of Landlord, and shall not
be removed by Tenant. In the event Landlord's consent is required for an
alteration, Landlord will notify Tenant at the time it gives consent whether the
alteration must be removed at the termination of this Lease. Tenant shall ensure
that all alterations shall be made in accordance with all applicable laws,
regulations and building codes, in a good and workmanlike manner and of quality
equal to or better than the original construction of the Building. Upon
completion of the work, Tenant shall provide lien waivers from the
subcontractors or a final affidavit of lien waiver from the general contractor,
and such lien waiver shall be in a form acceptable to Landlord.) No
person shall be entitled to any lien derived through or under Tenant for any
labor or material furnished to the Leased Premises, and nothing in this Lease
shall be construed to constitute a consent by Landlord to the creation of any
lien. If any lien is filed against the Leased Premises for work claimed to have
been done for or material claimed to have been furnished to Tenant, Tenant shall
cause such lien to be discharged of record within thirty (30) days after filing.
Tenant shall indemnify Landlord from all costs, losses, expenses and attorneys'
fees in connection with any construction or alteration and any related lien.
ARTICLE 8 - CASUALTY
Section 8.01. Casualty. In the event of total or partial destruction of
the Building or the Leased Premises by fire or other casualty, Landlord agrees
to promptly restore and repair the Leased Premises; provided, however,
Landlord's obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be made by
Landlord, if any. Rent shall proportionately xxxxx during the time that the
Leased Premises or part thereof are unusable because of any such damage.
Notwithstanding the foregoing, if the Leased Premises are (i) so destroyed that
they cannot be repaired or rebuilt within one hundred eighty (180) days from the
casualty date; or (ii) destroyed by a casualty which is not covered by the
insurance required hereunder or, if covered, such insurance proceeds are not
released by any mortgagee entitled thereto or are insufficient to rebuild the
Building and the Leased Premises; then, in case of a clause (i) casualty, either
Landlord or Tenant may, or, in the case of a clause (ii) casualty, then Landlord
may, upon thirty (30) days' written notice to the other party, terminate this
Lease with respect to matters thereafter accruing. Tenant waives any right under
applicable laws inconsistent with the terms of this paragraph and in the event
of a destruction agrees to accept any offer by Landlord to provide Tenant with
comparable space within the project in which the Leased Premises are located on
the same terms as this Lease. Notwithstanding the provisions of this paragraph,
if any such damage or destruction occurs within the final two (2) years of the
term hereof, then Landlord, in its sole discretion, may, without regard to the
aforesaid 180-day period, terminate this Lease by written notice to Tenant.
Section 8.02. All Risk Coverage Insurance. During the Lease Term,
Landlord shall maintain all risk coverage insurance on the Building, but shall
not protect Tenant's property on the Leased Premises; and, notwithstanding the
provisions of Section 9.01, Landlord shall not be liable for any damage to
Tenant's property, regardless of cause, except for the negligence of Landlord
and its employees, agents and invitees. Tenant hereby expressly waives any right
of recovery against Landlord for damage to any property of Tenant located in or
about the Leased Premises, however caused, except for the negligence of Landlord
and its employees, agents and invitees. Notwithstanding the provisions of
Section 9.01 below, Landlord hereby expressly waives any rights of recovery
against Tenant for damage to the Leased Premises or the Building which is
insured against under Landlord's all risk coverage insurance. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the common
areas, or (ii) the occurrence of any accident in or about the Leased Premises or
the common areas, or (iii) any act or neglect of Tenant or any other tenant or
occupant of the Building or of any other person, unless such damage, injury or
death is directly and solely the result of Landlord's negligence; and Tenant
hereby releases Landlord from any and all liability for the same. Tenant shall
be liable for, and shall indemnify and defend Landlord from, any and all
liability for (i) any act or neglect of Tenant and any person coming on the
Leased Premises or common areas by the license of Tenant, express or implied,
(ii) any damage to the Leased Premises, and (iii) any loss of or damage or
injury to any person (including death resulting therefrom) or property occurring
in, on or about the Leased Premises, regardless of cause, except for any loss or
damage covered by Landlord's all risk coverage insurance as provided in Section
8.02 and except for that caused solely and directly by Landlord's negligence.
This provision shall survive the expiration or earlier termination of this
Lease.
Section 9.02. Tenant's Insurance. Tenant shall carry general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than
$3,000,000 Combined Single Limit for both bodily injury and property
damage.
C. All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler
Leakage insurance, if applicable, for the full cost of replacement of
Tenant's property.
D. Business interruption insurance.
The insurance policies shall protect Tenant and Landlord as their interests may
appear, naming Landlord and Landlord's managing agent and mortgagee as
additional insureds, and shall provide that they may not be canceled on less
than thirty (30) days' prior written notice to Landlord. Tenant shall furnish
Landlord with Certificates of Insurance evidencing all required coverages on or
before the Commencement Date. If Tenant fails to carry such insurance and
furnish Landlord with such Certificates of Insurance after a request to do so,
Landlord may obtain such insurance and collect the cost thereof from Tenant.
Section 9.03. Landlord's Responsibility. Landlord shall assume the risk
of, be responsible for, have the obligation to insure against, and indemnify
Tenant and hold it harmless from any and all liability for any loss of or damage
or injury to any person (including death resulting therefrom) or property (other
than Tenant's property as provided in Section 8.02) occurring in, on or about
the Common Areas, regardless of cause, except for that caused by the sole
negligence of Tenant or its employees, agents, customers or invitees; and
Landlord hereby releases Tenant from any and all liability for the same.
Landlord's obligation to indemnify Tenant hereunder shall include the duty to
defend against any claims asserted by reason of such loss, damage or injury and
to pay any judgments, settlements, costs, fees and expenses, including
reasonable attorneys' fees, incurred in connection therewith. This provision
shall survive the expiration or earlier termination of this Lease.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or common areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date that actual possession
thereof is so taken. If all or any part of the Leased Premises shall be acquired
by the exercise of eminent domain so that the Leased Premises shall become
impractical for Tenant to use for the Permitted Use, Tenant may terminate this
Lease as of the date that actual possession thereof is so taken by giving
written notice to Landlord. All damages awarded shall belong to Landlord;
provided, however, that Tenant may claim dislocation damages or other claims
provided it is permitted by the condemning authority and such amount does not
subtract or diminish from Landlord's award.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent, which consent shall
not be unreasonably withheld, delayed or denied (provided that it shall not be
unreasonable for Landlord to withhold or deny its consent with respect to any
proposed assignment or subletting to a third party that is already a tenant in
the Building or the Park, unless Landlord cannot accommodate the space
requirements of such third party). In the event of any assignment or subletting,
Tenant shall remain primarily liable hereunder, and any extension, expansion,
rights of first offer, rights of first refusal or other options granted to
Tenant under this Lease shall be rendered void and of no further force or
effect. The acceptance of rent from any other person shall not be deemed to be a
waiver of any of the provisions of this Lease or to be a consent to the
assignment of this Lease or the subletting of the Leased Premises. Without in
any way limiting Landlord's right to refuse to consent to any assignment or
subletting of this Lease, Landlord reserves the right to refuse to give such
consent if in Landlord's opinion (i) the Leased Premises are or may be in any
way adversely affected; (ii) the business reputation of the proposed assignee or
subtenant is unacceptable; or (iii) the financial worth of the proposed assignee
or subtenant is insufficient to meet the obligations hereunder. Landlord further
expressly reserves the right to refuse to give its consent to any subletting if
the proposed rent is less than eighty five percent (85%) of the then current
rent for similar space within the Park. In the event that Tenant sublets the
Leased Premises or any part thereof, or assigns this Lease and at any time
receives rent and/or other consideration which exceeds that which Tenant would
at that time be obligated to pay to Landlord, Tenant shall pay to Landlord 50%
of the gross excess, net of Tenant's reasonable costs for brokerage,
advertising, legal and renovation, in such rent as such rent is received by
Tenant and 50% of any other consideration received by Tenant from such subtenant
in connection with such sublease or, in the case of any assignment of this Lease
by Tenant, Landlord shall receive 50% of any consideration paid to Tenant by
such assignee in connection with such assignment.
ARTICLE 12 - TRANSFERS BY LANDLORD
Landlord shall have the right to subordinate this Lease to any mortgage
presently existing or hereafter placed upon the Building by so declaring in such
mortgage. In the event of a sale or transfer of
such interest (except a mortgage or other transfer as security for a debt), the
"Landlord" named herein, or in the case of a subsequent transfer, the transferor
shall, after the date of such transfer, be automatically released from all
personal liability for the performance or observance of any term, condition,
covenant or obligation required to be performed or observed by Landlord
hereunder, and the transferee shall be deemed to have assumed all of such terms,
conditions, covenants and obligations. Within ten (10) days following receipt of
a written request from Landlord, Tenant shall execute and deliver to Landlord,
without cost, any instrument which Landlord deems necessary or desirable to
confirm the subordination of this Lease and an estoppel certificate in such form
as Landlord may reasonably request certifying (i) that this Lease is in full
force and effect and unmodified or stating the nature of any modification, (ii)
the date to which rent has been paid, (iii) that there are not, to Tenant's
knowledge, any uncured defaults or specifying such defaults if any are claimed,
and (iv) any other matters or state of facts reasonably required respecting the
Lease. Such estoppel may be relied upon by Landlord and by any purchaser or
mortgagee of the Building. Notwithstanding the foregoing, if the mortgagee shall
take title to the Leased Premises through foreclosure or deed in lieu of
foreclosure, Tenant shall be allowed to continue in possession of the Leased
Premises as provided for in this Lease so long as Tenant shall not be in
default.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be
a "Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional
Rent within five (5) business days after written notice thereof from Landlord
that the same is due, or Tenant fails to pay any other amounts due Landlord from
Tenant within ten (10) days after written notice thereof from Landlord that the
same is due. Tenant hereby expressly waives any additional notice required under
Section 83.20 of the Florida Statutes.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than thirty days are reasonably required
to cure, then such default shall be deemed to have been cured if Tenant
commences such performance within said thirty-day period and thereafter
diligently completes the required action within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased
Premises in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises
or Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action.
(b) Landlord may terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Leased Premises as of the
date of such Default, and thereafter (i) neither Tenant nor any person claiming
under or through Tenant shall be entitled to possession of the Leased Premises,
and Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (discounted at
the Prime Rate) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, whereupon Tenant
shall be obligated to pay the same to Landlord, together with all loss or damage
which Landlord may sustain by reason of Tenant's default ("Default Damages"),
which shall include reasonable expenses of preparing the Leased Premises
for re-letting, demolition, repairs, tenant finish improvements, brokers'
commissions and attorneys' fees, it being expressly understood and agreed that
the liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease. Landlord agrees to use reasonable efforts to mitigate
its damages hereunder. Tenant acknowledges that Landlord has other spaces to
lease and shall be allowed to lease all other spaces first.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
present value (discounted at the Prime Rate) of the difference between the rent
provided for herein and that provided for in any lease covering a subsequent
re-letting of the Leased Premises, for the period which would otherwise have
constituted the balance of the Lease Term, together with all of Landlord's
Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for
any loss resulting from the Default.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall
be in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may xxx for injunctive relief or to
recover damages for any loss directly resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or withhold, offset or xxxxx any
sums due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall
fail to perform any term, condition, covenant or obligation required to be
performed by it under this Lease and if Tenant shall, as a consequence thereof,
recover a money judgment against Landlord, Tenant agrees that it shall look
solely to Landlord's right, title and interest in and to the Building for the
collection of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay
in exercising any of its rights or remedies or other provisions of this Lease
shall constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees incurred in
connection therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right upon at least ninety (90) days' prior
written notice to Tenant to relocate Tenant and to substitute for the Leased
Premises other space in the Building or in the Park containing at least as much
rentable area and available parking as the Leased Premises. Such substituted
space shall be improved by Landlord, at its expense, with improvements at least
equal in quantity and quality to those in the Leased Premises. Landlord shall
reimburse Tenant for all reasonable expenses incurred with and caused by such
relocation, including, but not limited to, the costs to physically move Tenant's
furniture and equipment, computer cabling, telephone wiring, stationery and
business card costs and miscellaneous utility connection fees. In no event shall
Landlord be liable to Tenant for any consequential damages as a result of any
such relocation, including, but not limited to, loss of business income or
opportunity.
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
Section 15.01. Definitions.
(a) "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws and petroleum
products.
Section 15.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to the use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant.
Section 15.03. Restrictions on Tenant. Tenant shall operate its
business and maintain the Leased Premises in compliance with all Environmental
Laws. Tenant shall not cause or permit the use, generation, release,
manufacture, refining, production, processing, storage or disposal of any
Hazardous Substances on, under or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substances,
except as necessary and appropriate for its Permitted Use in which case the use,
storage or disposal of such Hazardous Substances shall be performed in
compliance with the Environmental Laws and the highest standards prevailing in
the industry.
Section 15.04. Notices, Affidavits, Etc. Tenant shall immediately
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of the Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises and
shall immediately deliver to Landlord any notice received by Tenant relating to
(i) and (ii) above from any source. Tenant shall execute affidavits,
representations and the like within five (5) days of Landlord's request therefor
concerning Tenant's best knowledge and belief regarding the presence of any
Hazardous Substances on, under or about the Leased Premises.
Section 15.05. Landlord's Rights. Landlord and its agents shall have
the right, but not the duty, upon advance notice (except in the case of
emergency when no notice shall be required) to inspect the Leased Premises and
conduct tests thereon to determine whether or the extent to which there has been
a violation of Environmental Laws by Tenant or whether there are Hazardous
Substances on, under or about the Leased Premises. In exercising its rights
herein, Landlord shall use reasonable efforts to minimize interference with
Tenant's business but such entry shall not constitute an eviction of Tenant, in
whole or in part, and Landlord shall not be liable for any interference, loss,
or damage to Tenant's property or business caused thereby.
Section 15.06. Tenant's Indemnification. Tenant shall indemnify
Landlord and Landlord's managing agent from any and all claims, losses,
liabilities, costs, expenses and damages, including attorneys' fees, costs of
testing and remediation costs, incurred by Landlord in connection with any
breach by Tenant of its obligations under this Article 15. The covenants and
obligations under this Article 15 shall survive the expiration or earlier
termination of this Lease.
Section 15.07. Landlord's Representation. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or
generated, at, in, on, under or in connection with the Leased Premises prior to
the Commencement Date of this Lease except to the extent Tenant exacerbates the
same.
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure
to the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in
accordance with the laws of the State where the Building is located.
Section 16.03. Guaranty. In consideration of Landlord's leasing the
Leased Premises to Tenant, Tenant shall provide Landlord with a Guaranty of
Lease executed by the guarantor(s) described in the Basic Lease Provisions, if
any.
Section 16.04. Force Majeure. Landlord and Tenant (except with respect
to the payment of any monetary obligation, unless otherwise specifically allowed
for herein) shall be excused for the period of any delay in the performance of
any obligation hereunder when such delay is occasioned by causes beyond its
control, including but not limited to work stoppages, boycotts, slowdowns or
strikes; shortages of materials, equipment, labor or energy; unusual weather
conditions; or acts or omissions of governmental or political bodies.
Section 16.05. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 16.06. Indemnification for Leasing Commissions. The parties
hereby represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be entitled thereto. The parties acknowledge that
certain officers, directors, shareholders, or partners of Landlord or its
general partner(s), are licensed real estate brokers and/or salesmen under the
laws of the State of Florida. Tenant consents to such parties acting in such
dual capacities.
Section 16.07. Notices. Any notice required or permitted to be given
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to the party who is to receive such notice at the address
specified in Article 1. If delivered in person, notice shall be deemed given as
of the delivery date. If sent by overnight courier, notice shall be deemed given
as of the first business day after sending. If mailed, the notice shall be
deemed to have been given on the date which is three business days after
mailing. Either party may change its address by giving written notice thereof to
the other party.
Section 16.08. Partial Invalidity; Complete Agreement. If any provision
of this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 16.09. Financial Statements. In the event of Tenant default
during the Lease Term and any extensions thereof, Tenant shall provide to
Landlord, within fifteen (15) days from Landlord's written request, a copy of
Tenant's most recent financial statements (certified and audited if the Minimum
Annual Rent hereunder exceeds $100,000) prepared as of the end of Tenant's
fiscal year. Such financial statements shall be signed by Tenant who shall
attest to the truth and accuracy of the information set forth in such
statements. All financial statements provided by Tenant to Landlord hereunder
shall be prepared in conformity with generally accepted accounting principles,
consistently applied.
Section 16.10. Signage. Landlord shall have the right to approve the
placing of signs and the size and quality of the same. Tenant shall place no
exterior signs on the Leased Premises without the prior written consent of
Landlord. Any signs not in conformity with the Lease may be immediately removed
by Landlord.
Section 16.11. Consent. Where the consent of a party is required, such
consent will not be unreasonably withheld.
Section 16.12. Parking. Tenant shall be entitled to use on a
non-exclusive basis 7 parking spaces per thousand square feet of Leased Premises
and shall park in common with other tenants of Landlord. Subject to the
immediately preceding sentence, Tenant agrees not to overburden the parking
facilities and agrees to cooperate with Landlord and other tenants in the use of
parking facilities. Landlord reserves the right in its absolute discretion to
determine whether parking facilities are becoming crowded and, in such event, to
allocate parking spaces among Tenant and other tenants. There will be no
assigned parking unless Landlord, in its sole discretion, may deem advisable. No
vehicle may be repaired or serviced in the parking area and any vehicle deemed
abandoned by Landlord will be towed from the project and all costs therein shall
be borne by the Tenant. All driveways, ingress and egress, and all parking
spaces are for the joint use of all tenants. There shall be no parking permitted
on any of the streets or roadways located within the Park.
Section 16.13. Time. Time is of the essence of each term and provision
of this Lease.
Section 16.14. Representations and Warranties. The undersigned
represent and warrant that (i) such party is duly organized, validly existing
and in good standing (if applicable) in accordance with the laws of the state
under which it was organized; (ii) the Tenant is authorized to do business in
the State where the Building is located; and (iii) the individual executing and
delivering this Lease has been properly authorized to do so, and such execution
and delivery shall bind such party.
Section 16.15. Radon Gas. Radon Gas is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of: DUKE-WEEKS REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership
___________________________
Unofficial Witness By: Duke-Weeks Realty Corporation,
its General Partner
___________________________ By:_________________________
Unofficial Witness Name:_______________________
Title:______________________
___________________________
Notary Public
Signed, sealed and delivered TENANT:
as to Tenant, in the
presence of:
ASSET ACCEPTANCE CORP.
___________________________
Unofficial Witness
By:_________________________
Name:_______________________
___________________________ Title:______________________
Unofficial Witness
Attest:_____________________
___________________________ Name:_______________________
Notary Public Title:______________________
(CORPORATE SEAL)
EXHIBIT "C"
LETTER OF UNDERSTANDING
Duke-Weeks Realty Limited Partnership, an Indiana limited partnership
Attention: PM NAME
Address
City, State Zip
RE: Lease between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, AN
INDIANA LIMITED PARTNERSHIP ("Landlord") and [COMPNAME]
("Tenant") for the Leased Premises located at [ADDRESS1],
[ADDRESS2], [CITY], [STATE], [ZIP] (the "Leased
Premises"), dated LEASE START DATE ( the "Lease").
Dear [Prefix] [FirstName] [LastName]:
The undersigned, on behalf of the Tenant, certifies to the Landlord as
follows:
1. The Commencement Date under the Lease is [COMMENCEDT].
2. The Rent Commencement Date is [RENTCOMMENCEDT].
3. The Expiration Date of the Lease is [LEASEENDDT].
4. The Lease (including amendments or guaranty, if any) is the entire
agreement between Landlord and Tenant as to the leasing of the Leased Premises
and is in full force and effect.
5. The Landlord has completed the improvements designated as Landlord's
obligation under the Lease, if any, and Tenant has accepted the Leased Premises
as of the Commencement Date.
6. To the best of the undersigned's knowledge, there are no uncured
events of default by either Tenant or Landlord under the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of
Understanding to be executed this ____ day of ___________, 2000.
______________________________________
By:___________________________________
Printed Name:_________________________
Title: _______________________________
EXHIBIT "D"
SPECIAL STIPULATIONS
OPTION TO RENEW:
A. Option to Renew. Provided that (i) there has not been an event of
Default beyond any applicable cure periods at any time during the Lease Term,
(ii) the creditworthiness of Tenant is materially the same as or better than on
the Commencement Date, and (iii) Tenant named herein remains in possession of
and has been continuously operating in substantially the entire Leased Premises
throughout the Lease Term, Tenant shall have the option to extend the Lease Term
for two (2) five (5) year terms (each an "Extension Term"). Each Extension Term
shall be upon the same terms and conditions contained in the Lease except the
Minimum Annual Rent for such Extension Term shall be adjusted as set forth
herein ("Rent Adjustment"). Tenant shall exercise such option by delivering to
Landlord, no later than one hundred eighty (180) days prior to the expiration of
the then current term thereof, written notice of Tenant's desire to extend the
term of the Lease. Unless Landlord otherwise agrees in writing, Tenant's failure
to timely exercise such option shall waive it. Landlord shall notify Tenant of
the amount of the rent adjustment no later than thirty (30) days from receipt of
Tenant's Notice to exercise the Extension Term. Within thirty (30) days
thereafter, Tenant shall inform Landlord of its intention to so extend the Lease
Term at the quoted rent adjustment. If Tenant properly exercises its option to
extend, Landlord and Tenant shall execute an amendment to the Lease (or, at
Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term.
B. Market Rent Adjustment. The Minimum Annual Rent for each Extension
Term shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective new tenants of the Building for space of comparable size
and quality and with similar or equivalent improvements as are found in the
Building, and if none, then in similar buildings in the vicinity provided,
however, that in no event shall the Minimum Annual Rent during the Extension
Term be less than the highest Minimum Annual Rent payable during the Lease Term.
The Minimum Monthly Rent shall be an amount equal to one-twelfth (1/12) of the
Minimum Annual Rent for the Extension Term and shall be paid at the same time
and in the same manner as provided in the Lease.
RIGHT OF FIRST REFUSAL:
Provided that (i) there has not been an event of Default beyond any
applicable cure periods at any time during the Lease Term, (ii) the
creditworthiness of Tenant is materially the same as or better than on the
Commencement Date, and (iii) Tenant named herein remains in possession of and
has been continuously operating in substantially the entire Leased Premises
throughout the Lease Term, and subject to any rights of other tenants to the
Refusal Space, as defined below, Tenant shall have a right of first refusal (the
"Refusal Option") to lease additional space in the Building (the "Refusal
Space"). Landlord shall notify Tenant in writing ("Landlord's Notice") of the
availability of available space located within the Building containing
approximately 10,000 rentable square feet of space, as more particularly
depicted on Exhibit "A" (the "Refusal Space") before entering into a lease with
a third party for such Refusal Space. Tenant shall have five (5) business days
from its receipt of Landlord's Notice to deliver to Landlord a written
acceptance agreeing to lease the Refusal Space on the terms and conditions
contained in Landlord's Notice. In the event Tenant fails to notify Landlord of
its acceptance within said five (5) day period, such failure shall be
conclusively deemed a waiver of Tenant's Right of First Refusal and a rejection
of the Refusal Space, whereupon Tenant shall have no further rights with respect
to the Refusal Space and Landlord shall be free to lease the Refusal Space to a
third party. In the event Tenant accepts the Refusal Space on the terms and
conditions specified in the Landlord's Notice, the term for the Refusal Space
shall be coterminous with the term for the original Leased Premises; provided,
however, that the minimum term for the Refusal Space shall be thirty-six (36)
months and the Term for the original Leased Premises shall be extended, to be
coterminous with the term for the Refusal Space. The Minimum Annual Rent for the
Refusal Space shall be equal to the rate which is then being quoted by Landlord
to prospective new tenants for the Refusal Space, , provided, however, that in
no event shall Tenant's Minimum Annual Rent per square foot for the Refusal
Space be less than the highest Minimum Annual Rent per square foot payable
during the original Lease Term for the original Leased Premises. The Minimum
Annual Rent for the original Leased Premises during any such extended term shall
be an amount equal to the Minimum Annual Rent then being quoted by Landlord to
prospective new tenants of the Building for space of comparable size and quality
and with similar or equivalent improvements as are found in the Building, and if
none, then in similar buildings in the vicinity, provided, however, that in no
event shall the Minimum Annual Rent during such extended term be less than the
highest Minimum Annual Rent payable during the Lease Term for the original
Leased Premises.
EXPANSION OPTION
Provided that (i) there has not been an event of Default beyond any
applicable cure periods at any time during the Lease Term, (ii) the
creditworthiness of Tenant is materially the same as or better than on the
Commencement Date, and (iii) Tenant does not exercise its Right of First Offer
as set forth hereinabove, Tenant shall have the option, exercisable after the
thirty sixth (36th) month of the Lease Term, to relocate to other premises owned
by Landlord within the Park meeting Tenant's space requirements. The expansion
space must be 5,000 square feet more than the Leased Premises. The lease term
for the expansion space shall be a minimum of five (5) years and shall be on
terms and conditions mutually acceptable to Landlord and Tenant. Tenant shall
not be required to pay a penalty in connection with a termination of this Lease.
In no event shall Landlord be required to terminate this Lease in order to
relocate Tenant to any place other than another building owned by Landlord, as
described above.
EXHIBIT A
Site Plan
EXHIBIT B
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (hereinafter referred to as the
"First Amendment") is made as of the 2nd day of March 2001, by and between
DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
(hereinafter referred to as "Landlord") and ASSET ACCEPTANCE CORP., a Nevada
corporation (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated September 14, 2000, (hereinafter referred to as the "Agreement") for the
lease of 10,000 square feet of office space at 000 Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxx which is more particularly described in Exhibit "A" to the Agreement and
certain easements, rights and privileges appurtenant thereto (hereinafter
referred to as the "Existing Premises"); and
WHEREAS, Landlord and Tenant desire to enter into this First Amendment
in order to provide for a correction in the square footage of the Existing
Premises and to amend the rental accordingly upon terms and conditions mutually
accepted to Landlord and Tenant;
WHEREAS, Tenant desires to lease an additional 11,050 square feet of
office space at 000 Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx as shown on the plan
attached hereto as Exhibit "A" (hereinafter the "Additional Space"); and
WHEREAS, Landlord and Tenant desire to enter into this First Amendment
in order to provide for a correction in the square footage of the Existing
Premises, to provide for said expansion of the Existing Premises to amend the
rental rate for the entire Leased Premises accordingly upon terms and conditions
mutually accepted to Landlord and Tenant;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) paid
by Landlord and Tenant to one another, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
Landlord and Tenant, Landlord and Tenant amend the Agreement as follows:
1. The Agreement is hereby amended to reflect a correction in the
measurement of the square footage of the Existing Premises and to provide for
the lease by Tenant of 10,700 rentable square feet of office space and shall
hereafter constitute the Existing Premises for all purposes under the Agreement.
2. Effective on the later of (i) April 15, 2001 or (ii) the date of
Substantial Completion of the improvements to the Additional Space (hereinafter
referred to as the "Additional Space Commencement Date") and continuing until
midnight on December 14, 2006, Tenant shall lease, on all the same terms,
covenants and conditions as the Agreement except as hereinafter provided, the
Additiona1 Space, which together with the Existing Premises equals a total of
21,750 square feet (the Additional Space and the Existing Premises shall be
collectively hereinafter referred to
as the "Leased Premises" and for all purposes of the Agreement, the definition
of the "Leased Premises" shall be deemed to mean the Leased Premises as amended
hereby). Provided, however, in the event the Additional Space Commencement Date
is delayed due to Tenant Delays (as hereinafter defined), then Tenant shall
commence payment of rent as set forth herein on the date that the Additional
Space Commencement Date would have occurred but for the Tenant Delays. "Tenant
Delays", as used herein, shall mean and refer to delays directly or
substantially attributable to or caused by Tenant or Tenant's employees or
agents. "Substantial Completion" shall mean completion of construction of the
improvements to the Additional Space as set forth on the plans and
specifications attached hereto as Exhibit "B". Landlord agrees to provide to
Tenant at least five (5) days prior written notice of the date on which it
expects to achieve Substantial Completion.
3. Effective April 15, 2001, Sections 1.01 D. and 1.01 E. of the
Agreement are hereby deleted in their entirety and the following inserted in
lieu thereof:
D. Minimum Annual Rent:
Months 01 - 03 Abated Monthly Rental Installments
Month 04 $10,254.17 (1 month rental)
Months 05 - 07 $30,762.50 (3 months rental)
Months 08 - 12 $103,067.71 (5 months rental)
Months 13 - 24 $254,864.50
Months 25 - 36 $262,584.00
Months 37 - 48 $270,521.00
Months 49 - 60 $278,568.50
Months 61 - 72 $286,940.50
(Rent does not include applicable Florida State Sales Tax or Additional
Rent)
E. Monthly Rental Installments:
Months 01 - 03 Abated Monthly Rental Installments
Months 04 - 07 $10,254.17 per month
Months 08 - 12 $20,613.54 per month
Months 13 - 24 $21,238.70 per month
Months 25 - 36 $21,882.00 per month
Months 37 - 48 $22,543.41 per month
Months 49 - 60 $23,214.04 per month
Months 61 - 72 $23,911.70 per month
(Rent does not include applicable Florida State Sales Tax or Additional
Rent)
4. Landlord shall deliver the Additional Space to Tenant on an "as is"
"where is" basis. Landlord shall construct in a good and workmanlike manner the
improvements to the Additional Space designated as Landlord's obligations in the
attached Exhibit "B".
5. Effective April 15, 2001, Section 1.01 C. of the Agreement is hereby
amended to provide that Tenant's Proportionate Share shall equal 37.4%, which is
calculated by dividing the total rentable square footage of the Leased Premises
(21,750 sq. ft.) by the total rentable square footage of the Building (58,210
sq. ft.).
6. The Right of First Refusal as contained in Exhibit "D" of the
Agreement is hereby amended to provide that Tenant has exercised it's Right of
First Refusal to the Refusal Space as described therein. The Agreement is
further amended to provide that Tenant shall have an additional Right of First
Refusal to lease 3,953 rentable square feet of space, as more particularly
depicted on Exhibit "A" attached hereto (the "Second Refusal Space"). The Second
Refusal Space shall be available to Tenant under all the terms and conditions as
set forth in Exhibit "D", Right of First Refusal, of the original Least
Agreement.
7. Provided that (i) Tenant has not been in Default beyond any
applicable cure periods at any time during the Agreement, (ii) the
creditworthiness of Tenant is materially the same as or better than on the
Commencement Date, (iii) Tenant named herein remains in possession of and has
been continuously operating in substantially the entire Leased Premises
throughout the Lease Term and (iv) the current use of the Leased Premises is
consistent with the Permitted Use thereunder, and subject to any rights of other
tenants to the Right of First Offer Space, Landlord shall notify Tenant in
writing ("Landlord's Notice") of the availability of available space located
within the Building containing approximately 8,262 rentable square feet of
space, as more particularly depicted on Exhibit "A" (the "Right of First Offer
Space") before marketing such Right of First Offer Space. Tenant shall have five
(5) business days from its receipt of Landlord's Notice to deliver to Landlord a
written acceptance agreeing to lease the Right of First Offer Space on the terms
and conditions contained in Landlord's Notice. In the event Tenant fails to
notify Landlord of its acceptance within said five (5) day period, then this
Right of First Offer shall remain in effect and shall not be deemed a waiver of
Tenant's Right of First Offer, however Landlord shall be free to lease the Right
of First Offer Space to a third party. In the event Tenant accepts the Right of
First Offer Space on the terms and conditions specified in the Landlord's
Notice, the term for the Right of First Offer Space shall be coterminous with
the term for the original Leased Premises; provided, however, that the minimum
term for the Right of First Offer Space shall be thirty-six (36) months and the
Term for the original Leased Premises shall be extended, to be coterminous with
the term for the Right of First Offer Space. The Minimum Annual Rent for the
Right of First Offer Space shall be equal to the rate which is then being quoted
by Landlord to prospective new tenants for the Right of First Offer Space,
provided, however, that in no event shall Tenant's Minimum Annual Rent per
square foot for the Right of First Offer Space be less than the highest Minimum
Annual Rent per square foot payable during the original Lease Term for the
original Leased Premises. The Minimum Annual Rent for the original Leased
Premises during any such extended term shall be an amount equal to the Minimum
Annual Rent then being quoted by Landlord to prospective new tenants of the
Building for space of comparable size and quality and with similar or equivalent
improvements as are found in the Building, and if none, then in similar
buildings in the vicinity, provided, however, that in no event shall the Minimum
Annual Rent during such extended term be less than the highest Minimum Annual
Rent payable during the Lease Term for the original Leased Premises.
8. The Expansion Option as contained in Exhibit D of the Agreement is
hereby amended to provide that the expansion space as described in that
paragraph must be at least fifty (50%) more square footage than the Leased
Premises as defined herein. All other terms and conditions of the Expansion
Option paragraph shall remain in full force and effect.
9. Except as expressly modified by this First Amendment, all
provisions, terms and conditions of the Agreement shall remain in full force and
effect.
10. In the event a provision of this First Amendment conflicts with a
provision of the Agreement, the First Amendment shall supersede and control.
11. All terms and phrases used herein shall have the same meaning as
assigned to them in the Agreement.
12. This First Amendment shall not be of any legal effect or
consequence unless signed by Landlord and Tenant, and once signed by Landlord
and Tenant it shall be binding upon and inure to the benefit of Landlord,
Tenant, and their respective legal representatives, successors and assigns.
13. This First Amendment has been executed and shall be construed under
the laws of the State of Florida.
IN WITNESS WHEREOF, the undersigned have caused this First Amendment to
be executed under seal and delivered as of the day and year first above written.
LANDLORD:
DUKE-WEEKS REALTY LIMITED
Signed, sealed and delivered PARTNERSHIP, an Indiana limited
as to Landlord, in the partnership
presence of:
By: Duke-Weeks Realty Corporation,
its General Partner
/s/ Xxxxx Ngz
Unofficial Witness By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
/s/ Xxxxxxx X. Awooten
Unofficial Witness
Signed, sealed and delivered TENANT:
as to Tenant, in the
presence of: ASSET ACCEPTANCE CORP.
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
Unofficial Witness Name: Xxxxx X. Xxxxxxx
Title: C.E.O. A.A.C.
/s/ Xxx Xxxx
Unofficial Witness ATTEST:
By: _____________________________
Name: ___________________________
Title: __________________________
[Corporate Seal]
EXHIBIT "A"
To The First Amendment
EXHIBIT B
Tenant Improvements
to "Additional Space"
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (hereinafter referred to as
the "Second Amendment") is made as of the ________ day of __________ 2001, by
and between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership (hereinafter referred to as "Landlord") and ASSET ACCEPTANCE CORP.,
a Nevada corporation (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated September 14, 2000, as amended by that certain First Amendment to Lease
Agreement dated March 2, 2001 (hereinafter collectively referred to as the
"Agreement") for the lease of 21,750 square feet of office space at 000 Xxxx
Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx which is more particularly described in Exhibit
"A" to the Agreement and certain easements, rights and privileges appurtenant
thereto (hereinafter referred to as the "Existing Premises"); and
WHEREAS, Tenant desires to exercise its Right of First Refusal as
provided in that certain First Amendment to Lease Agreement for the lease of an
additional 3,953 square feet of office space at 000 Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxx, defined as the Second Refusal Space and as shown on the plan attached
hereto as Exhibit "A" (hereinafter the "Additional Premises"); and
WHEREAS, Landlord and Tenant desire to enter into this Second Amendment
in order to provide for the exercise of Tenant's Right of First Refusal for the
Additional Premises on terms and conditions mutually accepted to Landlord and
Tenant;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) paid
by Landlord and Tenant to one another, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
Landlord and Tenant, Landlord and Tenant amend the Agreement as follows:
1. Effective on the earlier of (i) July 15, 2001 or (ii) the date of
Substantial Completion of the improvements to the Additional Premises
(hereinafter referred to as the "Additional Premises Commencement Date") and
continuing until midnight on December 14, 2006, Tenant shall lease, on all the
same terms, covenants and conditions as the Agreement except as hereinafter
provided, the Additional Premises, which together with the Existing Premises
equals a total of 25,703 square feet (the Additional Premises and the Existing
Premises shall be collectively hereinafter referred to as the "Leased Premises"
and for all purposes of the Agreement, the definition of the "Leased Premises"
shall be deemed to mean the Leased Premises as amended hereby). Provided,
however, in the event the Additional Premises Commencement Date is delayed due
to Tenant Delays (as hereinafter defined), then Tenant shall commence payment of
rent as set forth herein on the date that the Additional Premises Commencement
Date would have occurred but for the Tenant Delays. "Tenant Delays", as used
herein, shall mean and refer to delays directly or substantially attributable to
or caused by Tenant or Tenant's employees or agents. "Substantial Completion"
shall mean completion of construction of the improvements to the Additional
Premises as set forth on the plans and specifications attached hereto as Exhibit
"B". Landlord agrees to provide to Tenant at least five (5) days prior written
notice of the date on which it expects to achieve Substantial Completion.
3. Sections 1.01 D. and 1.01 E. of the Agreement are hereby deleted in
their entirety and the following inserted in lieu thereof:
D. Minimum Annual Rent:
Existing Premises (21, 750 sq. ft.)
Months 01 -- 03 Abated Monthly Rental Installments
Month 04 $10,254.17 (1 month rental)
Months 05 -- 07 $30,762.50 (3 months rental)
Total Leased Premises (25,703 sq.ft.)
Months 08 -- 12 $121,597.40 (5 months rental)
Months 13 -- 24 $300,679.68 per year
Months 25 -- 36 $309,782.88 per year
Months 37 -- 48 $319,103.28 per year
Months 49 -- 60 $328,613.52 per year
Months 61 -- 72 $338,487.48 per year
(Rent does not include applicable Florida State Sales Tax or Additional
Rent)
E. Monthly Rental Installments:
Existing Premises (21, 750 sq. ft.)
Months 01 - 03 Abated Monthly Rental Installments
Months 04 -- 07 $10,254.17 per month
Total Leased Premises (25,703 sq.ft.)
Months 08 -- 12 $24,319.48 per month
Months 13 -- 24 $25,056.64 per month
Months 25 -- 36 $25,815.24 per month
Months 37 -- 48 $26,591.94 per month
Months 49 -- 60 $27,384.46 per month
Months 61 -- 72 $28,207.29 per month
(Rent does not include applicable Florida State Sales Tax or Additional
Rent)
4. Landlord shall deliver the Additional Premises to Tenant on an "as
is" "where is" basis. Landlord shall construct in a good and workmanlike manner
the improvements to the Additional Space designated as Landlord's obligations in
the attached Exhibit "B".
5. Tenant, upon execution of this Second Amendment to Lease Agreement,
shall deposit with Landlord the sum of Four Thousand and 00/100 ($4,000.00)
Dollars as additional security for the Leased Premises. Section 1.01 I of the
Agreement is hereby amended to provide that the Security Deposit shall equal
Fifteen Thousand Eight Hundred Fifty Eight and 14/100 ($15,858.14) Dollars.
6. Effective on the Additional Premises Commencement Date, the
Agreement is hereby amended to provide that Tenant's Proportionate Share shall
equal 44.2%, which is calculated by dividing the total rentable square footage
of the Leased Premises (25,703 sq.ft.) by the total rentable square footage of
the Building (58,210 sq.ft.).
7. Paragraph 7 of the First Amendment to Lease Agreement is hereby
deleted in its entirety and Tenant shall have no further rights to the Right of
First Offer Space as defined therein.
8. Except as expressly modified by this Second Amendment, all
provisions, terms and conditions of the Agreement shall remain in full force and
effect.
9. In the event a provision of this Second Amendment conflicts with a
provision of the Agreement, the Second Amendment shall supersede and control.
10. All terms and phrases used herein shall have the same meaning as
assigned to them in the Agreement.
11. This Second Amendment shall not be of any legal effect or
consequence unless signed by Landlord and Tenant, and once signed by Landlord
and Tenant it shall be binding upon and inure to the benefit of Landlord,
Tenant, and their respective legal representatives, successors and assigns.
12. This Second Amendment has been executed and shall be construed
under the laws of the State of Florida.
IN WITNESS WHEREOF, the undersigned have caused this Second Amendment to be
executed under seal and delivered as of the day and year first above written.
LANDLORD:
DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership
Signed, sealed and delivered
as to Landlord, in the
presence of:
By: Duke-Weeks Realty Corporation,
its General Partner
___________________________
Unofficial Witness By:_________________________
Name:_______________________
Title:______________________
___________________________
Unofficial Witness
Signed, sealed and delivered TENANT:
as to Tenant, in the
presence of: ASSET ACCEPTANCE CORP.
___________________________ By:_________________________
Unofficial Witness Name:_______________________
Title:______________________
___________________________
Unofficial Witness ATTEST:
By:_________________________
Name:_______________________
Title:______________________
[Corporate Seal]
EXHIBIT A
TO THE SECOND AMENDMENT
[FLOOR PLAN]
EXHIBIT B
TO THE SECOND AMENDMENT
Landlord to provide, at its sole cost, tenant improvements to the Additional
Space in accordance to space planning and programming to be completed and
mutually agreed to by Landlord and Tenant no later than May 15, 2001, and
provided said Tenant Improvements shall be commensurate in design and quality
with the Existing Premises.
