FIRST LEASE AMENDMENT
FIRST
LEASE AMENDMENT
THIS
FIRST LEASE AMENDMENT (the “Amendment”) is effective as of the 16th
day of
August, 2006 and is executed this 19th
day of
October, 2006, by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership (“Landlord”), and INNOTRAC CORPORATION, a Georgia
corporation (“Tenant”).
WITNESSETH:
WHEREAS,
Landlord and Tenant entered into a certain lease dated February 28, 2005 (the
“Lease”), whereby Tenant leased from Landlord certain premises consisting of
approximately 646,468 rentable square feet of space (the “Original Premises”) in
a building commonly known as Building 1 in Hebron Industrial Park (the
“Building”), located at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000;
and
WHEREAS,
Tenant desires to lease from Landlord temporary space in the Building (the
“Temporary Space”); and
WHEREAS,
Landlord and Tenant desire to amend certain provisions of the Lease to reflect
such Temporary Space and other changes to the Lease;
NOW,
THEREFORE, in consideration of the foregoing premises, the mutual covenants
herein contained and each act performed hereunder by the parties, Landlord
and
Tenant hereby agree that the Lease is amended as follows:
1. Incorporation
of Recitals.
The
above recitals are hereby incorporated into this Amendment as if fully set
forth
herein.
2. Temporary
Space.
Effective October 27, 2006, Landlord and Tenant hereby agree that Landlord
shall
provide Tenant with temporary space in the Building in increments of
approximately 1,722 rentable square feet, which represents the approximate
size
of each bay area (the “Bay Area”). Each Bay Area shall hereinafter collectively
be referred to as the “Temporary Space”. The area in which the Temporary Space
may be located is shown on Exhibit
A-2
attached
hereto and made a part hereof. If Tenant shall use or occupy any portion of
a
Bay Area, the entire Bay Area shall be deemed a part of the Temporary Space.
Tenant shall pay to Landlord as rent an amount equal to Three Dollars and Twelve
Cents ($3.12) per rentable square foot of the Temporary Space plus Tenant’s
Proportionate Share of Operating Expenses for the Temporary Space, which shall
be determined by multiplying the Operating Expenses by a percentage determined
by dividing the rentable square fee of the Temporary Space by the rentable
square feet of the Building. Tenant hereby agrees to notify Landlord one (1)
day
prior to taking or giving back a Bay Area. Landlord shall measure the Temporary
Space each Friday and shall invoice Tenant monthly for the use of the Temporary
Space. Tenant accepts the Temporary Space “AS-IS”
without
representation or warranty by Landlord of any kind and with the understanding
that Landlord shall have no responsibility with respect thereto. The Temporary
Space shall be subject to all other terms and conditions of this Lease not
specifically addressed herein.
3. Term.
The
term for the temporary space shall expire on the earlier of (a) the date that
Tenant surrenders all of the Temporary Space to Landlord in accordance with
the
provisions of Section
2.03
or (b)
April 30, 2007.
4. Patriot
Act.
Each of
Landlord and Tenant, each as to itself, hereby represents its compliance with
all applicable anti-money laundering laws, including, without limitation, the
USA Patriot Act, and the laws administered by the United States Treasury
Department’s Office of Foreign Assets Control, including, without limitation,
Executive Order 13224 (“Executive Order”). Each of Landlord and Tenant further
represents (i) that it is not, and it is not owned or controlled directly or
indirectly by any person or entity, on the SDN List published by the United
States
Treasury Department’s Office of Foreign Assets Control and (ii) that it is not a
person otherwise identified by government or legal authority as a person with
whom a U.S. Person is prohibited from transacting business. As of the date
hereof, a list of such designations and the text of the Executive Order are
published under the internet website address xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx.
5. Brokerage
Commissions.
The
parties hereby represent and warrant that the only real estate brokers involved
in the negotiation and execution of this Amendment are Duke Realty Services
Limited Partnership, representing itself as Landlord and Xxxxx & Xxxxx and
West Shell, representing Tenant. Each party shall indemnify the other party
from
any and all liability for the breach of this representation and warranty on
its
part and shall pay any compensation to any other broker or person who may be
entitled thereto.
6. Tenant’s
Representations and Warranties.
The
undersigned represents and warrants to Landlord that (i) Tenant is duly
organized, validly existing and in good standing in accordance with the laws
of
the state under which it was organized; (ii) all action necessary to authorize
the execution of this Amendment has been taken by Tenant; and (iii) the
individual executing and delivering this Amendment
on
behalf of Tenant has been authorized to do so, and such execution and delivery
shall bind Tenant. Tenant, at Landlord’s request, shall provide Landlord with
evidence of such authority.
7. Examination
of Amendment.
Submission of this
instrument for examination or signature to Tenant does not constitute a
reservation or option, and it is not effective until execution by and delivery
to both Landlord and Tenant.
8. Definitions.
Except
as otherwise provided herein, the capitalized terms used in this Amendment
shall
have the definitions set forth in the Lease.
9. Incorporation.
This
Amendment shall be incorporated
into and
made a part of the Lease, and all provisions of the Lease not expressly modified
or amended hereby shall remain in full force and effect.
IN
WITNESS WHEREOF, the parties have caused this
Amendment to be executed on the day and year first written above.
LANDLORD:
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DUKE
REALTY LIMITED PARTNERSHIP,
an
Indiana limited partnership
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By:
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Duke
Realty Corporation,
its
general partner
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By:
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/s/
Xxxxxx X. Xxx
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Xxxxxx
X. Xxx
Senior
Vice President
Cincinnati
Operations
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TENANT:
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INNOTRAC
CORPORATION,
a
Georgia corporation
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By:
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/s/
Xxxxxx Xxxxx
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Printed:
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Xxxxxx
Xxxxx
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Title:
|
VP
of Logistics
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STATE OF OHIO | ) |
) SS: | |
COUNTY OF XXXXXXXX | ) |
Before
me, a Notary Public in and for said County and State, personally appeared Xxxxxx
X. Xxx, by me known and by me known to be the Senior Vice President,
Cincinnati Operations of Duke Realty Corporation, an Indiana corporation, the
general partner of Duke Realty Limited Partnership, an Indiana limited
partnership, who acknowledged the execution of the foregoing “First Lease
Amendment” on behalf of said partnership.
WITNESS
my hand and
Notarial Seal this 19th day
of
October, 2006.
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/s/
Xxxx Xxxxxxxxx
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Notary
Public
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(Printed
Signature)
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My
Commission Expires: ____________________
My
County
of Residence: Clermont
STATE OF GEORGIA | ) |
) SS: | |
COUNTY OF GWINNETT | ) |
Before
me, a Notary Public in and for said County and State, personally appeared
Xxxxxx
X. Xxxxx, by me known and by me known to be the Sr. Vice President of Innotrac
Corporation, a Georgia corporation, who acknowledged the execution of the
foregoing “First Lease Amendment” on behalf of said corporation.
WITNESS
my hand and Notarial Seal this 16th
day of
October, 2006.
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/s/ Xxxxxx
Xxxxxxxx
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Notary
Public
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/s/
Xxxxxx Xxxxxxxx
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(Printed
Signature)
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My
Commission Expires: 6/19/09
My
Country of Residence: Gwinnett