EXHIBIT 10.44
MODIFICATION, RATIFICATION AND EXTENSION OF LEASE
THIS MODIFICATION, RATIFICATION AND EXTENSION OF LEASE ("MRE") is made
as of the _____ day of _________________, 2003, by and between SHELBY DRIVE
CORPORATION, a Florida corporation ("Landlord") and PRIORITY FULFILLMENT
SERVICES, INC., a Delaware corporation ("Tenant").
WHEREAS, Landlord and Tenant did enter into that certain Industrial
Lease Agreement ("ILA") dated August 31, 1999 regarding the leasing by Landlord
to Tenant of approximately 442,184 square feet comprising all of the building
space located at 4650 Shelby Drive, Memphis, Tennessee, also known as Southpark
Building N (the "Premises"); and
WHEREAS, Landlord and Tenant do desire to modify, ratify and extend the
ILA as set forth herein.
NOW, THEREFORE, the undersigned do desire to modify, ratify and extend
the ILA as set forth below:
1. The commencement date of this MRE shall be January 1, 2004
(the "Commencement Date"). Until the Commencement Date, the terms of the ILA
shall remain in full force and effect. After the Commencement Date, the terms of
the ILA shall be modified and extended as set forth herein.
2. The new lease term shall be five (5) years ("Lease Term")
beginning on January 1, 2004 and ending December 31, 2008.
3. The annual base rent beginning the Commencement Date shall be
$2.60 per square feet for an annual base rent for the premises of One Million
One Hundred Forty-Nine Thousand Six Hundred Seventy-Eight and no/100ths Dollars
($1,149,678.00), payable in monthly base rent installments of Ninety-Five
Thousand Eight Hundred Six and 50/100ths Dollars ($95,806.50), payable in
advance and due on the first day of each month during the Lease Term beginning
the Commencement Date.
4. Tenant shall have a one-time option to cancel the Lease
effective April 30, 2007 so long as Tenant has provided Landlord written notice
on or before November 1, 2006 (the "Cancellation Notice"). Tenant shall pay to
Landlord simultaneously with the Cancellation Notice a cancellation fee of Three
Hundred Eighty Thousand and no/100ths Dollars ($380,000.00), which shall not
release Tenant from the obligation to pay all sums due under the ILA until April
30, 2007.
5. Landlord shall provide to Tenant an allowance of up to
Forty-Three Thousand Two Hundred Sixty-Eight and no/100ths Dollars ($43,268.00)
for the replacement of condenser coils in eight (8) of the existing HVAC units.
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6. Landlord shall have the roof, which is currently under
warranty, inspected by the manufacturer and repair any existing leaks.
7. Landlord shall provide an allowance to Tenant of up to
Thirteen Thousand Eight Hundred Ninety and no/100ths Dollars ($13,890.00) for
the repair of existing cracks in the parking lot. Landlord shall approve in
advance the contractor and the work to be performed.
8. Landlord agrees to paint the upper section of the front fascia
panel to eliminate the discoloration around the PFS sign and logo.
9. Landlord shall provide an allowance of up to $110,000.00 for
any additional improvements required by Tenant (the "Discretionary Tenant
Improvement Allowance"). Landlord shall require Tenant to utilize the
Discretionary Tenant Improvement Allowance on or before March 31, 2004. Up to
50% of any remaining Discretionary Tenant Improvement Allowance after March 31,
2004 may be used to offset rent.
10. Tenant shall have the right to extend the Lease Term for two
(2) three-year options under the following terms and conditions:
a. Tenant shall give Landlord at least six (6) months'
written notice prior to the end of the then current lease term of Tenant's
decision to exercise such option to renew (the "Option Notice").
b. Tenant shall not be in default under the Lease at the
time of such Option Notice.
c. The first renewal option ("First Renewal Option")
shall have a base rental rate equal to 95% of the then current market rate, but
in no case shall it be less than the rental rate during the initial Lease Term.
d. The second renewal option ("Second Renewal Option")
shall have a base rental rate equal to the then current market rate, but in no
case less than the base rental rate during the First Renewal Option.
11. Notices to Landlord shall be delivered to the following
address:
Shelby Drive Corporation
Attention: Mr. Ed Daley
c/o L&B Realty Advisors, Inc.
8750 N. Central Expressway, Suite 800
Dallas, Texas 75231
With copy to:
Weston Management Company
P.O. Box 17847
Memphis, Tennessee 38187-0847
Attn: Lease Administrator
12. Section 40 of the ILA is deleted in its entirety.
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13. Section 14 of Exhibit C to the ILA is hereby amended by adding
the following: "Upon termination or expiration of this Lease, Tenant has no
obligation to remove the Starter fixtures or improvements."
14. All other terms, conditions and provisions of the ILA shall
remain in full force and effect unless specifically modified herein.
15. This Agreement shall be binding upon and inure to the benefit
of the parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement (or
have caused this Agreement to be executed by their respective officers, duly
authorized to do so, on the day and year first above written.
LANDLORD:
SHELBY DRIVE CORPORATION,
a Florida corporation
By:_________________________________
Title:______________________________
TENANT:
PRIORITY FULFILLMENT SERVICES, INC.,
a Delaware corporation
By:_________________________________
Mark C. Layton
Title:______________________________
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ACKNOWLEDGMENTS FOR LANDLORD AND TENANT
STATE OF )
) ss.
COUNTY OF )
BEFORE ME, the undersigned Notary Public in and for the State and
County aforesaid, personally appeared____________________ with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence)
who, upon oath, acknowledged himself to be the______________ of Priority
Fulfillment Services, Inc., the within named bargainor, a Delaware corporation,
and that he as such________________ executed the foregoing instrument for the
purposes therein contained, by signing the name of the corporation by himself as
such_____________________.
WITNESS my hand and Official Seal at office this_______________day
of______________________, 2003.
_____________
Notary Public
_____________________
My Commission Expires:
STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
BEFORE ME, a Notary Public in and for said County, personally appeared
Edward J. Daley, known to me to be the person who, as Vice President, of Shelby
Drive Corporation the corporation which executed the foregoing instrument in its
capacity as Landlord, signed the same, and acknowledged to me that he did so
sign said instrument in the name and upon behalf of said corporation as officer
of said corporation, that the same is his free act and deed as such officer
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and he was duly authorized thereunto by its board of directors, and that the
seal affixed to said instrument is the corporate seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and
affixed by official seal, this ______________ day of ______________, 2003.
_____________________________
Notary Public
________________________________
My Commission Expires:
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