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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 Leas
