Exhibit 10.2
WINDHAM INDUSTRIAL CENTER V
ROMEOVILLE, ILLINOIS
FIRST AMENDMENT TO LEASE
BETWEEN
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
A NEW JERSEY CORPORATION,
LANDLORD
AND
INNOTRAC CORPORATION,
A GEORGIA CORPORATION,
TENANT
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CONCESSION GRANTED
Portions of Base Rent shall abate hereunder for up to four (4) months. See
Section 3 below.
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is made as of the 4th
day of April 2003, by and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a
New Jersey corporation ("Landlord"), and INNOTRAC CORPORATION, a Georgia
corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have heretofore entered into that certain
lease dated as of September 17, 2002 (the "Lease"), pursuant to which Tenant is
leasing approximately 150,204 square feet of rentable area (the "Existing
Premises") in the building located at 1400-1420 Lakeview Drive in Romeoville,
Illinois (the "Building"). Capitalized terms that are not otherwise defined in
this First Amendment shall have the meanings ascribed to them in the Lease;
WHEREAS, Tenant desires to lease from Landlord and Landlord desires to
lease to Tenant an additional 54,103 square feet of gross rentable area adjacent
to the Existing Premises;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Additional Premises. As of April 1, 2003 (the "Effective Date"),
Landlord hereby leases to Tenant, and Tenant hereby accepts from Landlord, the
54,103 square feet of gross rentable area in the Building depicted as the "First
Addition" on Exhibit A attached hereto and made a part hereof (the "Additional
Premises") for the Term. For all periods from and after the Effective Date,
Exhibit A to the Lease shall be superseded by Exhibit A attached hereto and
made a part hereof. From and after the Effective Date the Premises shall consist
of both the Existing Premises and the Additional Premises, constituting 204,307
square feet of rentable area in the aggregate. From and after the Effective
Date, all references to the Premises in the Lease shall be deemed to refer to
the Existing Premises and the Additional Premises.
2. Base Rent and Tenant's Proportionate Share.
(a) For all periods from and after the Effective Date, Section 1.09 of
the Lease shall be superseded by Exhibit B attached hereto and made a part
hereof.
(b) As of the Effective Date Tenant's Proportionate Share under the Lease
shall be 45.30% (rather than 33.31%).
3. Rent Abatement. Notwithstanding anything to the contrary contained in
the Lease or this First Amendment, and provided that Tenant is not then in
default under the Lease (as amended by this First Amendment), Base Rent shall
abate, and Tenant shall have no liability therefor: (a) in an amount equal to
$16,185.81 otherwise payable for April 2003; and (b) in an
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amount equal to $8,092.91 otherwise payable for each of the months of May 2003,
June 2003 and July 2003. Landlord and Tenant agree that no portion of the Base
Rent paid by Tenant during the portion of the Term occurring prior to or after
the expiration of any period during which such Base Rent was abated shall be
allocated, for income tax purposes, nor is such Base Rent intended by the
parties to be allocable, for income tax purposes, to any abatement period.
4. Possession of the Additional Premises. No promise of Landlord to
alter, remodel or improve the Premises, the Additional Premises or the
Property, and no representation respecting the condition of the Premises, the
Additional Premises or the Property, has been made by Landlord to Tenant.
Tenant hereby accepts the Additional Premises in their "as is" condition.
5. Expansion Space.
(a) Landlord and Tenant hereby acknowledge and agree that Section 29 of
the Lease are hereby deleted in their entirety, and Tenant shall have no
further rights under such provisions.
(b) If Landlord and Tenant shall enter into an additional amendment to
the Lease on or before January 31, 2004, pursuant to which: (i) Tenant leases
all, and not less than all, of the 51,254 square feet of gross rentable area in
the Building depicted as the "Expansion Space" on Exhibit A attached hereto and
made a part hereof (the "Expansion Space") for the remainder of the Term; and
(ii) Tenant accepts the Expansion Space in its then current "as is" condition,
and pursuant to such other terms and conditions upon which Landlord and Tenant
shall mutually agree in their respective sole and absolute discretion, then
Landlord shall make the $90,000 TI Allowance available to Tenant in accordance
with Section 9.2 of the Lease and Section 5 of the Work Letter.
(c) If the condition precedent described in Section 5(b) shall not have
been satisfied on or before January 31, 2004, and:
(i) Landlord leases all of the Expansion Space to a tenant other than
Tenant, then, (x) Landlord shall construct a standard demising wall between
the Premises (as expanded under this First Amendment) and the Expansion
Space at Landlord's sole cost and expense; and (y) Landlord shall be
required to pay up to the $90,000 TI Allowance to Tenant solely to
reimburse Tenant for all reasonable costs and expenses of Tenant relating
to the construction of the office space to be located in the Premises and
described in Schedule 1 to the Work Letter, and for no other costs and
expenses; or
(ii) Landlord shall lease all or a portion of the Expansion Space to
Tenant (other than in accordance with Section 5(b) above), then Section 9.2
of the Lease and Section 5 of the Work Letter shall be amended such that
the term "TI Allowance" shall be defined as "zero dollars ($0.00)."
6. Real Estate Broker. Other than with respect to Insignia/ESG (the
"Broker"), insofar as each party knows, no other broker negotiated this First
Amendment or is entitled to any commissions in connection herewith. Each party
agrees to indemnify, defend and hold the other and its employees, agents and
their officers and partners harmless from and against any claims resulting from
a breach of the foregoing representation. Landlord agrees to pay a
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commission to Broker in connection with this First Amendment pursuant to a
separate agreement.
7. Full force and Effect, Inconsistency. Except as set forth in this
First Amendment, the terms, covenants, conditions and agreements of the Lease
shall remain unmodified and otherwise in full force and effect. In the event of
any inconsistency between the terms of the Lease and the terms of this First
Amendment, the terms of this First Amendment shall control.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the day and year first above written.
LANDLORD:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA,
a New Jersey corporation
By: PDC Properties, Inc., its agent
By: /s/ Rex Davis
Name: Rex Davis
Title: Alliance Manager
TENANT:
INNOTRAC CORPORATION,
a Georgia corporation
By: /s/ David L. Gamsey
Name: DAVID L. GAMSEY
Title: CFO
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Exhibit A
Premises
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Exhibit B
Schedule of Base Rent Payments
<Table>
<Caption>
Lease Year Annual Base Rent Total Annual Base Rent Monthly Installments
- ---------- ---------------- ---------------------- --------------------
4/1/03 through the end of
1st Lease Year $3.59 per square foot $733,462.13 $61,121.84
2nd Lease Year $3.70 per square foot $755,935.90 $62,994.66
3rd Lease Year $3.81 per square foot $778,409.67 $64,867.47
4th Lease Year $3.92 per square foot $800,833.44 $66,740.29
5th Lease Year $4.04 per square foot $825,400.28 $68,783.36
6th Lease Year $4.16 per square foot $849,917.12 $70,826.43
</Table>
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