EXHIBIT 10.43
SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT
THIS SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT (this "Amendment")
is made as of the Amendment Date (as hereinafter defined) by and among ProLogis
North Carolina Limited Partnership, a Delaware limited partnership (hereinafter
referred to as "Landlord") and Priority Fullfillment Services, Inc., a Delaware
corporation (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord (or its predecessor-in-interest) and Tenant (or its
predecessor-in-interest) entered into that certain Industrial Lease Agreement
dated March 31, 1999 relating to the lease of approximately 120,000 square feet
of space within the Building (Building "1" of Southpark), located in Memphis,
Shelby County, Tennessee (the "Original Demised Premises"); and as modified by
that First Amendment To Industrial Lease dated December 30, 1999 wherein the
Lease was assigned to the Tenant and the Original Demised Premises was expanded
to include the remaining 100,100 square feet of space within the Building (the
"Expansion Space"; the Original Demised Premises and the Expansion Space being
referred to hereinafter collectively as the "Demised Premises") totaling 220,100
square feet and subject to the terms and conditions set forth herein. The Lease
dated March 31, 1999 and the First Amendment To Industrial Lease Agreement dated
December 30, 1999 shall hereinafter collectively be referred to as the "Lease".
WHEREAS, Landlord and Tenant desire to extend the Term of the Lease and
to modify certain other terms and conditions as set forth below.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00), the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. All capitalized terms used in this Amendment shall have the meanings
ascribed thereto in the Lease unless otherwise set forth herein.
2. The Term of the Lease shall be extended for a period of five (5 )
years beginning January 1, 2004 (the "Extension Commencement Date")
such that the expiration date of the Lease Term shall be December 31,
2008 ("Expiration Date") unless terminated earlier in accordance with
the Lease.
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3. Beginning upon the Extension Commencement Date the Base Rent shall be
paid pursuant to the Lease through the Expiration Date.
Notwithstanding anything in Section 1(d) of the Lease to the contrary,
from and after the Extension Commencement Date, the following Annual
Base Rent shall be due with respect to the Demised Premises, as
pursuant to the terms hereof:
Extension Commencement Date - December 31, 2008 $572,260.00
4. Notwithstanding anything in Section (e) of the Lease to the contrary,
from and after the Extension Commencement Date, the following Monthly
Base Rent
Installments shall be due with respect to the Demised Premises, as
pursuant to the terms hereof:
Extension Commencement Date - December 31, 2008 $ 47,688.33
5. Termination Option: Provided no Event of Default shall then exist and
no condition shall then exist which with the passage of time or giving
of notice, or both, would constitute an Event of Default, Tenant shall
have the right at any time on or before October 1, 2006 to send
Landlord irrevocable written notice (the "Termination Notice") that
Tenant has elected to terminate this Lease effective on April 30,
2007. If Tenant elects to terminate this Lease pursuant to the
immediately preceding sentence, the effectiveness of such termination
shall be conditioned upon Tenant paying to Landlord $190,000.00
contemporaneously with Tenant's delivery of the Termination Notice to
Landlord. Such amount is consideration for Tenant's option to
terminate and shall not be applied to rent or any other obligation of
Tenant. Landlord and Tenant shall be relieved of all obligations
accruing under this Lease after the effective date of such termination
but not any obligations accruing under this Lease prior to the
effective date of such termination.
6. Renewal Options: See attached Addendum 1 captioned "Two Renewal
Options at Market".
7. Landlord shall furnish or perform, at its sole cost and expense, those
certain improvements to the Demised Premises using building standard
materials as follows:
1. Provide a discretionary allowance in the amount of $50,000
to be applied toward miscellaneous improvements within the
Demised Premises with funds allocated on or before December
31, 2004 supported by an invoice requesting payment.
2. Provide and install seven (7) 35,000 lb. mechanical pit
style levelers at doors # 1, 2, 3, 5, 7, 9 & 11. Repair
damage to all dock
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doors, seals, and shelters including roll-up door at tunnel.
Provide and install seven (7) new shelters at dock doors
receiving new pit leveler.
3. Relocate existing furnace control from aisle BQ11911 to back
building wall.
4. Inspect and/or service all existing roof mounted exhaust
fans.
5. Relocate up to 65 existing warehouse light fixtures to the
center of the aisle as designated in walk-through. All
existing light fixtures to be made operational.
6. Install a 12'x6' awning at employee entrance.
7. Construct a new 10'x10' office at employee entrance. New
office to have VCT flooring, acoustic ceiling, and
self-contained heatpump/ac unit/ or provide self-contained
modular unit.
8. Tape, float, and paint around all existing warehouse
mandoors along south elevation.
9. Re-carpet existing carpeted areas within the existing east
office area including replacing VCT in breakroom; replace vent in
east office restroom; replace any damaged ceiling tile and clean
air vents in east and west office areas; install counter for
sinks in east office restrooms; paint all interior office walls
and door frames of east and west office areas.
10. Install one (1) view window at existing clerk's office.
11. Provide bollard and chain at west driveway to limit access.
Lock and key to be controlled by Tenant but in accordance with
all legal requirements.
12. Repair pitting and depressions around existing building
clean outs/inspection covers at south dock at Landlord's
reasonable discretion.
13. Repair cracks in concrete drive-in ramp at Landlord's
reasonable discretion.
8. Notwithstanding the provisions of Paragraph 9 of Exhibit C of the
Lease, captioned "Forklift Connector Enclosure", in the event
Landlord, at Landlord's discretion, elects to demolish and remove the
Connector, Tenant shall not be obligated to reimburse Landlord for the
cost of such demolition.
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9. Effective as of the Amendment Date, Section 1 (m) of the Lease shall
be deleted in its entirety and the following shall be inserted in lieu
thereof:
(m) Address for notice:
Landlord: ProLogis North Carolina Limited Partnership
14100 East 35th Place
Aurora, CO 80011
Tenant: Priority Fullfillment Services, Inc. (PFS web)
Attn: Scott Talley
4638 East Shelby Drive
Memphis, TN 38017
10. Effective as of the Amendment Date, Section 1 (n) of the Lease shall
be deleted in its entirety and the following shall be inserted in lieu
thereof:
(n) Address for rental payments: ProLogis
P.O. Box 198267
Atlanta, GA 30384-8267
11. Notwithstanding the provisions of the Lease (Paragraph 13 of the First
Amendment To Industrial Lease Agreement), Tenant shall not be
responsible to restore the demising wall described in said paragraph.
12. Except for Commercial Tennessee, Inc., whose commission shall be paid
by Landlord in accordance with a separate written agreement, Landlord
and Tenant each represents and warrants to the other than neither
party has engaged or had any conversations or negotiations with any
broker, finder or other third party concerning the matters set forth
in this Amendment who would be entitled to any commission or fee base
on the execution of this Amendment. Landlord and Tenant each hereby
indemnifies the other against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees
and expenses, for any breach of the foregoing.
13. With the exception of those terms and conditions specifically modified
and amended herein, the Lease as modified shall remain in full force
and effect in accordance with all its terms and conditions. In the
event of any conflict between the terms and provisions of this Second
Amendment To Industrial Lease and the terms and provisions of the
Lease as modified, the terms and provisions of this Second Amendment
To Industrial Lease shall supersede and control.
14. This Amendment shall be governed by and construed in accordance with
the laws of the State of Tennessee.
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15. Any obligation or liability whatsoever of ProLogis, a Maryland real
estate investment trust, which may arise at any time under the Lease
or this Second Amendment To Industrial Lease or any obligation or
liability which may be incurred by it pursuant to any other
instrument, transaction or undertaking contemplated hereby, shall not
be personally binding upon, nor shall resort for the enforcement
thereof be had to the property of, its trustees, directors,
shareholders, officers, employees, or agents regardless of whether
such obligation or liability is in the nature of contract, tort or
otherwise.
16. For purposes of this Amendment, the term "Amendment Date" shall mean
the date upon which this Amendment is signed by Landlord or Tenant,
whichever is later.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and sealed as of the Amendment Date.
LANDLORD:
Date:________________
ProLogis North Carolina Limited Partnership, a
Delaware limited partnership
By: ProLogis North Carolina (1) Incorporated,
a Maryland corporation, its General Partner
By:_______________________________________
Name: Charles E. Sullivan
Title: Senior Vice President
TENANT;
Date:________________
Priority Fullfillment Services, Inc.,
a Delaware corporation
By:__________________________
Name: Mark C. Layton
Title:______________________
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