EXHIBIT 10.31.2
SECOND LEASE AMENDMENT
This Amendment the "Second Amendment" is entered into this 20th day of
April, 2005 in connection with the Office Building Lease (hereinafter referred
to as "Original Lease") for that portion of the building known as BUILDING
SEVEN, 00000 XXXXXXXXX XXXXXX XXXX., XXXXXX XXXXXXX, XX between RIVERVIEW
ASSOCIATES LIMITED PARTNERSHIP (hereinafter referred to as "Landlord") and
SOURCE INTERLINK COMPANIES, INC. (hereinafter referred to as "Tenant");
WHEREAS, Landlord and Tenant entered into the Original Lease dated August
9, 2001;
WHEREAS, Landlord delivered possession of the Premises to Tenant pursuant
to the Commencement Date Certificate on July 1, 2002;
WHEREAS, Pursuant to Paragraph 37 of the Original Lease Landlord has taken
title to the Land from the Ground Lease Landlord and has extinguished the Ground
Lease;
WHEREAS, Landlord agreed to amortize certain additional fitout costs in
the amount of Two Hundred Eighty-One Thousand Five Hundred Thirty Dollars And No
Cents ($281,530.00), which is in excess of the allowances provided for in
Paragraph 4 of the Office Building Lease. These costs are being amortized over
the term of the Lease at a rate of Six Percent (6%), and shall be payable in
equal monthly installments of Two Thousand Seven Hundred Forty-Seven Dollars and
Thirty-One Cents ($2,747.31);
WHEREAS, Tenant, pursuant to Paragraph 34 of the Original Lease, had the
option to lease 10,000 square feet of Rentable Area on the second floor of the
Office Building ("Option Space") within one (1) year of the Commencement Date of
the Lease provided that it provide Landlord with ninety (90) days prior notice;
WHEREAS, Tenant failed to provide the required notice for the Option Space
but Landlord and Tenant agreed to waive the notice requirement and agreed that
Tenant shall have the option to lease the Option Space according to the terms
and conditions of Paragraph 34;
WHEREAS, Landlord and Tenant entered into a Lease Amendment dated August
27, 2003 the "First Amendment" modifying the terms of the Lease to include the
Option Space;
WHEREAS, Landlord provided notice to Tenant of its intent to lease Suite
106 consisting of 2,500 Rentable Square Feet of the Additional Space to a third
party as required pursuant to Paragraph 35 of the Original Lease;
WHEREAS, Tenant waived its First Right Of Refusal to lease Suite 106;
WHEREAS, Tenant desires to lease the remaining space on the second floor
consisting of 11,243 Usable Square Feet plus 1,000 Usable Square Feet on the
first floor of the Building as shown on the attached Exhibit "D-2" (hereinafter
referred to as "Additional Space");
WHEREAS, Tenant on or before January 1, 2006 desires to lease the
remaining space on the first floor consisting of 16,459 Usable Square Feet as
shown on the attached Exhibit "D-3" hereinafter referred to as ("Remaining
Space");
NOW, THERFORE, for the good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound hereby the parties
covenant and agree as follows:
1. PARAGRAPH 1.8 OF THE LEASE IS HEREBY DELETED AND SUBSTITUTED IN LIEU
THEREOF SHALL BE THE FOLLOWING:
1.8 "PREMISES" From July 1, 2002 until September 2, 2003, Premises means
that certain office space known Floors 3 and 4 which is identified on EXHIBIT D
attached to the Original Lease (and are the two highest floors in the Office
Building), consisting of approximately 46,312 Usable Square Feet and 50,943
Rentable Square Feet. From September 2, 2003, Premises means that certain office
space known Suite 206 on Floor 2 consisting of approximately 9,665 Usable Square
Feet and 11,202 Rentable Square Feet which is identified on EXHIBIT D-1 attached
to the First Amendment PLUS Floors 3 and 4, consisting of approximately 46,312
Usable Square Feet and 50,943 Rentable Square feet for total Usable Square Feet
of 55,977 and total Rentable Square Feet of 62,145. From April 1, 2005, Premises
means the improved portion of the Additional Space consisting of approximately
10,243 Usable Square Feet (subject to adjustment as provided in Section 2.2
below) and 11,872 Rentable Square Feet PLUS the existing space on Floor 2
consisting of approximately 9,665 Usable Square Feet and 11,202 Rentable Square
Feet PLUS Floors 3 and 4, consisting of approximately 46,312 Usable Square Feet
and 50,943 Rentable Square feet for total Usable Square Feet of 66,220 and total
Rentable Square Feet of 74,017. From June 1, 2005, Premises means the unimproved
portion of the Additional Space consisting of approximately 2,000 Usable Square
Feet (subject to adjustment as provided in Section 2.2 below) and 2,318 Rentable
Square Feet PLUS the existing space on Floor 2 consisting of approximately
19,908 Usable Square Feet and 23,074 Rentable Square Feet PLUS Floors 3 and 4,
consisting of approximately 46,312 Usable Square Feet and 50,943 Rentable Square
feet for total Usable Square Feet of 68,220 and total Rentable Square Feet of
76,335. From the sooner of January 1, 2006 or the completion of all final
inspections allowing for lawful occupancy of the Remaining Space Premises means
the Remaining Space consisting of approximately 16,459 Usable Square Feet
(subject to adjustment as provided in Section 2.2 below) and 19,077 Rentable
Square Feet PLUS the existing space approximately 68,220 Usable Square Feet and
76,335 Rentable Square Feet for total Usable Square Feet of 84,679 and total
Rentable Square Feet of 95,412.
2. PARAGRAPH 1.10 OF THE LEASE IS HEREBY DELETED AND SUBSTITUTED IN
LIEU THEREOF SHALL BE THE FOLLOWING:
1.10 "RENTABLE AREA" means the sum of (i) the Usable Square Feet,
plus (ii) the amount arrived at multiplying the Usable Square Feet times
the applicable Load Factor which for the purposes of this Lease is agreed
to be 95,412 unless adjusted as otherwise provided in this Lease.
3. PARAGRAPH 1.14 OF THE LEASE IS HEREBY DELETED AND SUBSTITUTED IN
LIEU THEREOF SHALL BE THE FOLLOWING:
1.14 "USABLE SQUARE FEET" means the number of square feet of usable
area as determined in accordance with applicable BOMA standards in effect
as of the Lease Date; provided, however, that any area on a floor occupied
entirely by a single tenant which would otherwise be Interior Common Areas
shall instead constitute Usable Square Feet of such tenant for all
purposes under this Lease. Landlord's architect's measurement shall be
used, absent manifest error. The parties agree that the Useable Square
Feet of the Premises is 84,679, unless adjusted as otherwise provided in
this Lease.
4. PARAGRAPH 4 OF THE LEASE IS HEREBY MODIFIED BY THE ADDITION OF THE
AS FOLLOWING:
Tenant acknowledges that the Landlord has completed its obligations for
construction for Floor 3 and Floor 4, and Suite 206 on Floor 2, subject to any
incomplete punch list or warranty item. Landlord agrees to complete the Tenant
Fitout for the unimproved portion of the Additional Space and the Remaining
Space to Building standard as defined in Exhibit B-3, at its own cost and
expense which cost is agreed to be $25.00 per Usable Square Foot ("Allowance').
Landlord warrants that the Allowance will provide a level of finish similar to
the Option Space. Should Tenant exceed that level of finish, Tenant shall be
responsible for the payment of any additional costs. Tenant shall have the
option to elect the Landlord to amortize the additional costs over the remaining
Term of the Lease in equal monthly payments based on 7% interest subject to a
limitation of $15.00 per Usable Square Foot. The finish in the improved space in
Suites 201 & 202 of the Additional Space exceeds Building Standard and Tenant
agrees to accept that portion of the Premises in as is condition excepting that
Landlord will replace any missing cabinetry and appliances in Suite 202. The
Premises shall be deemed ready for occupancy when the work being performed
therein is substantially completed. The term "substantially completed" shall be
construed to mean such completion as shall enable Tenant to reasonably and
conveniently use and occupy the Premises for the conduct of its ordinary
business and the completion of all final inspections allowing for lawful
occupancy of the Premises, even though minor details, decorations and mechanical
adjustments (hereinafter referred to as "Punch List Items") remain to be
completed by the Landlord and signed off by Tenant and Tenant's architect.
Within thirty (30) days of the Premises being substantially completed and the
completion of all final inspections allowing for lawful occupancy of the
Additional Space and the Remaining Space, Landlord and Tenant shall execute and
deliver to each other a certificate ("Commencement Date Certificate") in the
form attached to the Original Lease as EXHIBIT E which shall: (i) confirm the
Commencement Date and Termination Date, and such other information as either
party shall reasonably request, and (ii) include a "punch list" of defects of
the Tenant Fitout. Within thirty (30) days following completion of all final
inspections allowing for lawful occupancy of the Additional Space and Remaining
Space the
Landlord shall cause the defects set forth on the punch list in such certificate
to be corrected. Notwithstanding anything contained herein to the contrary,
Fixed Rent will be payable for the Remaining Space effective January 1, 2006
whether or not Tenant Fitout is completed, unless the failure to complete is due
to delays by Landlord or its contractor.
5. PARAGRAPH 5.1 OF THE LEASE IS HEREBY DELETED AND SUBSTITUTED IN LIEU
THEREOF SHALL BE THE FOLLOWING:
5.1 From and after the Commencement Date, Tenant agrees to pay to
Landlord annual fixed rent for the Premises (the "Fixed Rent") in an amount per
annum calculated in the manner provided on 3RD REVISED EXHIBIT H. Fixed Rent
shall be payable during each Lease Year in equal monthly installments on the
first (1st) day of each calendar month during the Term. At the time that Tenant
pays to Landlord the Fixed Rent, it shall also remit to Landlord any applicable
state sales tax due thereon. If the Commencement Date is a day other than the
first (1st) day of a calendar month, then Fixed Rent and Additional Rent (as
hereafter defined) for (a) any partial calendar month shall be prorated on the
basis of the actual number of days in such month, and (b) the month in which the
Commencement Date occurs shall be payable on the Commencement Date. Fixed Rent
includes an annual allowance equal to the amount arrived at by multiplying (i)
six dollars and fifty cents ($6.85), times (ii) the Rentable Area of the
Premises (the "Operating Expense Allowance"). All Fixed Rent shall be subject to
Florida State sales tax.
6. Notwithstanding anything contained herein to the contrary, in the event
that Tenant leases the Remaining Space on or before September 1, 2005 the terms
of the Lease will be modified pursuant to the Third Lease Amendment attached
hereto as Exhibit `J"
All other terms and conditions of the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have hereunto affixed their hands and
seals the day and year noted below their respective signatures, and the
corporate seals have been duly affixed.
WITNESSES: LANDLORD:
RIVERVIEW ASSOCIATES LIMITED
PARTNERSHIP, a Florida limited partnership
By: RIVERVIEW ASSOCIATES, L.L.C., a Florida
limited liability company as its
general partner
Witness /s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx, Xx.
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Print Name Xxxxxxxx X. Xxxxx By: Xxxxxxx X. Xxxxx, Xx.
Its: Managing Member
Witness /s/Xxxxxxx X. Xxxx
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Print Name: Xxxxxxx X. Xxxx DATED: 4/20/04
WITNESSES: TENANT:
SOURCE INTERLINK COMPANIES, INC.
Witness /s/Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxx
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Print Name: Xxxxxx X. Xxxxxxx By: Xxxxx X. Xxxxxx
Its: President and Chief Operating
Officer
Witness
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Print Name
--------------------------- DATED:
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