EXHIBIT 10.16(b)
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT is entered into as of the 15th
day of October 2002, by and between ProLogis-Macquarie Kentucky I LLC, a
Delaware limited liability company ("Landlord"), and Innotrac Corporation
("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease dated as of the
23rd day of April, 2002 (such Lease, as heretofore and hereafter modified, being
herein referred to as the "Lease") pursuant to which Landlord leased to Tenant
approximately 286,000 square feet located at 0000 Xxxxxxxx Xxxx, Xxxxxx, XX
00000 (the "Original Premises"); and
WHEREAS, a scrivener's error occurred in the drafting of the Lease
whereby the Landlord's name was drafted as ProLogis Development Services
Incorporated; and
WHEREAS, Landlord and Tenant hereby desire to correct Landlord's name
as of the date of the drafting of the Lease to reflect ProLogis Limited
Partnership-IV, a Delaware limited partnership; and
WHEREAS, the Lease was assigned to ProLogis-Macquarie Kentucky I LLC, a
Delaware limited liability company, pursuant to that certain Xxxx of Sale and
Assignment of Leases, Contracts and Permits dated as of the 27th day of June,
2002; and
WHEREAS, Landlord and Tenant desire to expand the Premises by 44,000
square feet in addition to modifying certain other terms and conditions as set
forth below.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Landlord and Tenant agree as follows:
1. Landlord and Tenant hereby acknowledge and agree that as of
the date of the Lease, the Landlord's name under the Lease should have been
reflected as ProLogis Limited Partnership-IV, a Delaware limited partnership.
2. Landlord and Tenant hereby acknowledge and agree that the
Landlord's name under the Lease as of June 27, 2002, is hereby revised to
reflect ProLogis-Macquarie Kentucky I LLC, a Delaware limited liability company.
3. Effective on October 1, 2002 (the "Expansion Premises
Commencement Date"), the Original Premises shall hereby be expanded to include
those certain premises consisting of approximately 44,000 rentable square feet
(the "Expansion Premises"), as more fully described on the attached Exhibit A-l.
The Premises as described in the Lease shall be revised to include the Expansion
Premises and shall further be revised to reflect a total square footage of
approximately 330,000 square feet.
4. The Lease Term for the Expansion Premises shall commence on
the Expansion Premises Commencement Date and shall continue through the end of
the original lease term July 31, 2007.
5. The total monthly Base Rent for the Original Leased Premises
and the Expansion Premises, during the Original Leased Premises Extension Term
and the Expansion Premises Lease Term as defined herein, shall be due and
payable to Landlord in accordance with Paragraph 4 of the Lease equal to the
following amount for the respective period set forth below:
Period Amount
------ ------
October 1, 2002 through July 31, 2007 $77,000 per month
6. Effective on the Expansion Premises Commencement Date,
Tenant's Proportionate Share of the Building and Project shall be revised to
reflect the amount for the respective periods set forth below:
Tenant's Proportionate Tenant's Proportionate
Period Share of Building Share of Project
-------- ---------------------- --------------------------
October 1, 2002 through July 31, 2007 83% 83%
7. Effective on October 1, 2002, the Initial Estimated Monthly
Operating Expense Payments shall be as follows: Monthly Charge
Common Area Charges: $ 4,675.00
Taxes: 8,250.00
Insurance: 1,650.00
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Total $14,575.00
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8. Effective on October 1, 2002, Addendum 1 of the Lease,
captioned "Right Of First Refusal", paragraph (a) shall be replaced with the
following:
"Offered Space shall mean the adjoining 66,000 square feet of space as
indicated on Exhibit A-l attached hereto."
9. Effective on October 1, 2002, Addendum 5 of the Lease,
captioned "Cancellation Option", shall be revised to reflect the following:
"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
the first day of the 30th month of the Lease Term to send
Landlord written notice (the "Termination Notice") that Tenant
has elected to terminate this Lease effective on the last day
of the 36th month of the Lease Term with respect to the
Premises consisting of approximately 330,000 square feet only.
It is the express intent of the parties that this Cancellation
Option shall not apply to the Offered Space as defined in
Addendum 1 of the Lease, as amended by Paragraph 8 under this
Amendment.
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 $1,880,760.00 contemporaneously with Tenant's deliver
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 the Lease prior to the
effective date of such termination."
10. With the exception of those terms and conditions specifically
modified and amended herein, the Lease shall remain in full force and effect in
accordance with all its terms and conditions. In the event of any conflict
between the terms and provisions of this Amendment and the terms and provisions
of the Lease, the terms and provisions of this Amendment shall supersede and
control.
11. All capitalized terms used but not defined herein which are
defined in the Lease shall have the same meaning herein as in the lease.
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