Exhibit 10.81
SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT
THIS SECOND AMENDMENT TO INDUSTRIAL
LEASE AGREEMENT (this “Second Amendment”) is dated as
of December 28, 2007 by and between INDUSTRIAL PROPERTY FUND
VI, LLC, a Delaware limited liability company
(“Landlord”), as successor-in-interest to Industrial
Developments International, Inc., a Delaware corporation
(“IDI”), and PRIORITY FULFILLMENT SERVICES, INC., a
Delaware corporation (“Tenant”).
RECITALS
IDI and Tenant previously entered
into that certain Industrial Lease Agreement dated August 19, 2004,
as amended by that certain First Amendment to Industrial Lease
Agreement, dated December 22, 2004 (as amended, the
“Lease”) for the lease of approximately 434,900 square
feet of space, more commonly known as 8474 Market Place, Southaven
Mississippi 38671 (the “Demised Premises”), located
within Airways Distribution Center, DeSoto County, Mississippi.
Landlord has succeeded to the interest of IDI under the
Lease.
Landlord and Tenant now desire to
amend the Lease to, among other things, extend the Term.
NOW, THEREFORE, for and in
consideration of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration in hand paid by each party hereto to the
other, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. All capitalized terms used
herein but undefined shall have the meaning as defined in the
Lease.
2. The Expiration Date, as
defined in Section 1(h) of the Lease, is hereby extended to
December 31, 2010. As used herein, “Term” is
hereby defined as the period commencing on the Lease Commencement
Date and terminating on the Expiration Date, as extended
hereby.
3. Beginning on January 1,
2008, the Annual Base Rent, as defined in Section 1(d) of the
Lease, for the remainder of the Term as extended hereby shall be
$1,278,606.00 per year payable in Monthly Base Rent Installments of
$106,550.50 per month.
4. Special Stipulation 3 of
Exhibit C of the Lease is hereby deleted in its entirety. The
first sentence of Special Stipulation 4 of Exhibit C of the
Lease is hereby amended and modified to replace the number
“two (2)” with “one (1)” so that from and
after the date hereof, Tenant shall only have one (1) option
to extend the Term pursuant to Special Stipulation 4.
5. Allowance for
Tenant’s Changes .
(a) Assuming
Tenant either delivers to Landlord a Termination Waiver in
accordance with the terms of Section 7 below or does not
timely exercise the Termination Option (as defined below) such that
it expires by its terms, Landlord shall reimburse Tenant for
Tenant’s costs up to an amount equal to One Hundred Eight
Thousand Seven Hundred Twenty Five and No/100 Dollars ($108,725.00)
(the “Tenant Allowance”) which are incurred by Tenant
in constructing any Tenant’s Changes which are completed on
or before June 30, 2008 (the “Construction Completion
Date”) in accordance with the terms of Section 18 of the
Lease so long as, on or before the Construction Completion Date
Tenant has met the following requirements (“Reimbursement
Requirements”):
(i)
substantially completed the applicable Tenant’s Changes and
received a certificate of occupancy (if required) from the
applicable governing authority and delivered a copy of the same to
Landlord;
(ii)
delivered to Landlord lien waivers and affidavits from
Tenant’s contractor, all subcontractors, and all laborers or
materials suppliers having performed any work at the Demised
Premises relating to the applicable Tenant’s Changes,
together with any other evidence reasonably required by Landlord to
satisfy Landlord’s title insurer that there are no parties
entitled to file a lien against the real property underlying the
Project in connection with such work; and
(iii)
delivered to Landlord all invoices, receipts and other evidence
reasonably required by Landlord to evidence the cost of the
applicable Tenant’s Changes.
(b) Any
qualifying reimbursement amounts described above shall be paid by
Landlord to Tenant within thirty (30) days after the later of
(i) the Termination Option Expiration Date (as defined below)
(including, without limitation, if the Termination Option
Expiration Date is accelerated due to delivery by Tenant of a
Termination Waiver in accordance with the terms of Section 7
below) or (ii) thirty (30) days after satisfaction of the
Reimbursement Requirements.
6. Tenant utilizes the Demised
Premises to provide logistical services (“Logistical
Services”) for its client, Philip Morris USA Inc. (“PM
USA”). Landlord hereby agrees to simultaneously deliver to PM
USA, at the address below and otherwise in accordance with the
terms of the Lease (a “PM USA Notice”), a copy of any
notice to Tenant regarding any failure by Tenant to fulfill its
obligations under the Lease which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default (a
“Potential Event of Default”).
PM USA Notice
address:
Philip Morris USA, Inc.
6601 West Broad Street
Richmond, Virginia 23230
Attention: Manager of Marketing Services
If a
Potential Event of Default occurs, so long as PM USA has the
assets, capitalization, tangible net worth (as defined in the
Lease) and creditworthiness (collectively, the
“Creditworthiness”) at least equal to the
Creditworthiness of the Guarantor as of the Lease Date as
determined by GAAP, PM USA shall have the right to cure any
Potential Event of Default in the same manner and within the same
time frames in which Tenant would be so entitled under the terms of
the Lease, provided that, simultaneously with its causing such
cure, PM USA delivers to Landlord a copy of the Lease Assignment
Agreement attached hereto as Exhibit A (the “Assignment
Document”) duly executed by all parties other than Landlord
for whom signature blocks have been added, at which time, so long
as a
