EXHIBIT 2.3
SUB-LEASE
(Xxxx Avenue)
AGREEMENT of Lease ("Sub-Lease") made this 27th day of May 2004, to
be effective June 1, 2004, by and between Manchester Technologies, Inc., as
Landlord, with offices at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and ePlus
Technology, Inc., as Tenant, with offices at 000 Xxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Landlord is the "Lessee" for the Premises, including the land and
all buildings, structures and other improvements located at 000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("Premises") pursuant to an Agreement of Lease dated
March 14, 2003 ("Master Lease") with Xxxxxxx X. Giouda, successor to General
Electric Capital Business Asset Funding Corporation, as the "Lessor" and
Manchester Technologies, Inc., as the Lessee.
Landlord does hereby let unto the Tenant, and the Tenant has hired from
the Landlord, the Premises, less the portion excluded herefrom as set forth in
Exhibit 1 hereto, for a term commencing on June 1, 2004 and to expire on the
31st day of May 2005, to be used only in accordance with the uses permitted
under the Master Lease.
1. The Tenant shall pay the following:
a) From June 1, 2004 through March 31, 2005, the base monthly rental of
$17,500.00. >From April 1, 2005 through May 1, 2005 the base monthly rent shall
be $19,249.89. Said rental to be paid on the 1st day of each month in advance.
b) A proportionate amount of any and all sums which may be due and owing
by Landlord as Lessee as additional rent pursuant to the Master Lease.
c) A proportionate amount of all other sums with respect to the
maintenance and use of the premises, hereinafter Common Area Maintenance or
"CAM". "CAM" shall mean the total costs and expenses incurred in operating,
equipping, maintaining, insuring, replacing, repairing and policing the common
area of the Premises, including without limitation the cost
of all materials, supplies and services purchased or hired therefor; the cost
and expenses of landscaping, gardening ad planting, cleaning, painting
(including line painting), decorating, security, paving, lighting, sanitary
control, and removal of snow and ice, trash, garbage and other refuse; heating,
ventilating and air conditioning of the enclosed portions of the common areas;
fire protection; water and sewerage charges, electricity and other utilities,
and all hookup, connection, availability and standby fees pertaining to
utilities serving the common areas; professional fees; operation of loudspeakers
and any other equipment supplying music to the common areas or any parts
thereof; installing and renting of signs; maintenance, repair and replacement of
utility systems serving the common areas, including water, sanitary, sewer and
storm water lines and other utility lines, pipes and conduits and replacement of
structural and non-structural portions of the Premises including without
limitation the roof and the facades; the cost of personnel (including without
limitation applicable payroll taxes, worker's compensation insurance, disability
insurance and fringe benefits) to implement all of the foregoing, including the
policing of the common areas and the directing of traffic and parking of
automobiles on the parking areas thereof; administrative costs attributable to
the common areas; Landlord may cause any or all of said services to be provided
by an independent contractor or contractors without reducing Tenant's
obligations to pay a portion of CAM as elsewhere provided in this Lease.
For so long as this Lease shall be in full force and effect, Landlord
grants to Tenant a non-exclusive revocable license to use the common areas of
the Premises, to be used in common by and with other Landlord or such others to
whom Landlord may grant access, expressly reserving to Landlord, without
limitation, the exclusive rights to change the area, level, location and
arrangement of the parking areas and other facilities forming a part of said
common areas; to restrict parking by Tenant and its employees, agents,
subtenants, concessionaires and licensees to certain areas; to close temporarily
all or any portion of the common areas for the purpose of making repairs or
changes thereto and to discourage non-customer and non-employee parking; to
reasonably establish, modify and enforce rules and regulations with respect to
the common areas and the use to be made thereof. Landlord further
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reserves the right to make changes, additions, subtractions, alterations, or
improvements in or to all parking areas and other improvements in the common
areas. Landlord shall operate, manage, equip, light and maintain the common
areas in such manner as Landlord may from time to time determine, and Landlord
shall have the right and exclusive authority to employ and discharge all
personnel with respect thereto. Common areas shall be subject to such reasonable
rules and regulations as Landlord may adopt or amend from time to time, and such
rules and regulations may alter the size, location or arrangement of such common
areas or the type of facilities at any time, Landlord shall not be subject to
any liability therefor, nor shall Tenant be entitled to any compensation or
diminution or abatement of Rent therefor, nor shall such change or diminution of
such areas be deemed a constructive or actual eviction. Tenant further hereby
acknowledges, consents and agrees that any or all services, facilities and
access by the public to the Premises may also be suspended in whole or in part
(without entitling Tenant to any diminution or abatement of rent) as aforesaid
and during such temporary times as times as any of the business establishments
in the immediately surrounding area are not open for business, on legal
holidays, or such other days as may be declared by local, state or federal
authorities as days of observance, or during any periods of actual or threatened
civil commotion, insurrection or other circumstances beyond Landlord's control.
The rights of Tenant, its agents, employees, and visitors to use the parking
facilities shall apply only while they are accessing the Premises for purposes
consistent with Tenant's permitted use. Tenant agrees that it and its employees
will park their trucks, delivery vehicles and automobiles only in such of the
parking areas as Landlord from time to time designates for that purpose.
d) For purposes hereof the Tenant's proportionate amount of additional
rents in paragraph 1(b) and expenses in paragraph 1(c) shall be 100% and such
sums shall be due and payable to Landlord as additional rent.
2. The Tenant agrees to perform and be bound by all of the terms, covenants and
conditions of the Master Lease with the same force and effect as though fully
set forth herein, and all of the terms of said Master Lease are made a part
hereof by reference with the same force and effect as though set forth herein.
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3. A. In the event the Tenant shall default for a period of five (5) business
days in the payment of any sums required to be paid pursuant to Paragraph 1.
a)-c) inclusive, of this Sub-Lease, and in the event said default is not cured
within five (5) business days after notice of default has been given, the
Landlord shall have the right to recover possession of the Premises in a summary
proceeding for non-payment of rent.
B. In the event the Tenant shall default for a period of fifteen (15) days
in the performance of the non-monetary terms, covenants and conditions of the
aforementioned Master Lease, or Security Agreement, or of this Sub-Lease,
(namely other than a default as to payments required by Paragraph 1. a)-c)
inclusive), the Landlord may give the Tenant ten (10) days written notice of its
intention to end the term of this Sub-Lease, and upon, the expiration of said
ten (10) days, if said default continues to exist, or if reasonably diligent
steps to cure said default have not commenced the term under this Sub-Lease
shall expire, come to an end and terminate, as fully and completely as if that
were the date herein definitely fixed for the expiration of the term, and the
Landlord may thereupon, without further notice, re-enter the demised premises,
and dispossess the Tenant by summary proceedings or otherwise.
4. This Sub-Lease is subject to the terms of the Master Lease.
5. The Landlord and the Tenant, in any action or proceeding involving this
Sub-Lease or the Premises, do hereby waive the right to demand a jury trial. 6.
Landlord herein shall not be required to comply with any covenants or provisions
required to be performed by the Lessor in the Master Lease, but same shall only
be complied with by the Lessor under the Master Lease. If requested, the
Landlord hereunder shall cooperate with the Tenant hereunder in the enforcement
of any obligations to be performed by the Lessor under the Master Lease.
7. All notices, communications and demands under this Sub-Lease shall be made in
writing, signed by the Sender, and sent by either (i) certified or registered
mail, return receipt, or (ii) hand delivery to a principal of the party, or
(iii) by overnight mail delivery by Federal Express or other recognized carrier.
If given to the Landlord, then to it at the address hereinabove stated, with a
copy to Xxxxxxx, Xxxxxxxx & Xxxx, Esqs., 000 Xxxxxxxx,
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Xxxxxxxxxx, Xxx Xxxx 00000, and if to the Tenant, then to it at the address
hereinabove stated, with a copy to Xxxxx Xxxxxxxx, Esq. ePlus, 000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, in all cases. Either party may change its
address for notice purposes by sending a notice thereof in the manner herein
provided. The Landlord and Tenant herein specifically authorize their respective
attorneys to prepare and forward any and all notices pursuant to the within
Paragraph. Notice shall be deemed given three (3) business days after being sent
by certified mail, one (1) business day after being sent by overnight mail, or
upon hand delivery.
8. Landlord covenants that so long as Tenant is not in default hereunder in the
payment of any rent or compliance with or the performance of any of the terms,
covenants or conditions of this Sub-Lease on Tenant's part to be complied with
or performed, beyond applicable cure periods, Tenant shall not be hindered or
molested by Landlord in Tenant's enjoyment of the Premises.
9. Landlord covenants and agrees to and with Tenant that Landlord will not enter
into any modification or amendment of the Master Lease without the approval in
writing of Tenant, it being understood and agreed that any such modification or
amendment shall be deemed null and void and shall have no effect on the Tenant's
rights under this Sub-Lease.
10. In the event the Lessor under Master Lease defaults in the performance of
the terms and conditions of the Master Lease to be performed by the Lessor under
the Master Lease, and should Landlord refuse to xxx for the enforcement of the
rights as the Lessee under the Master Lease, then Tenant shall have the right to
xxx in Landlord's place and stead.
11. Landlord covenants and agrees that it will immediately deliver to Tenant any
notice, demand, or other communication it receives from Lessor under the Master
Lease.
12. Tenant does hereby agree to indemnify and save Landlord harmless of and from
all loss, cost, liability, damage and expense, including without limitation
reasonable counsel fees, arising from or connected with (a) its failure or
refusal to carry out any covenants and obligations hereunder and/or under the
Lease for which it is assuming, or (b) any claims made by Landlord or with
respect to the Premises.
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13. During the initial term of this sublease including any option period as
hereinafter provided, Tenant shall enjoy the right to use all fixtures,
equipment and furnishings as presently exist other than personal property and
effects of Landlord's officers, agents and employees and also excluding any
artwork and other decorative materials and any items scheduled on the schedule
of excluded personal property annexed.. Tenant agrees to maintain all such
personalty in the same condition as currently exists excepting only reasonable
wear and tear. Tenant's option to extend the sublease shall include the right to
use of such personalty.
14. Provided Tenant is not otherwise in default of this agreement or any other
agreement between Landlord and Tenant, Tenant shall have the option on one
hundred twenty (120) days prior written notice to Landlord, to renew this
sublease for successive one (1) year periods until the expiration of the Lease,
and the rent hereunder shall be 100% of the amounts of the Base Rent, additional
rents and required payments pursuant to the Master Lease, together with 100% of
"CAM" as provided herein.
15. Tenant shall obtain, at Tenant's expense, and keep in effect furing the term
of this sublease, (a) commercial general liability insurance (including personal
injury and contractual liability) with a liability limit of no less than US
$5,000,000, and (b) workers' compensation, disability and unemployment insurance
sufficient to meet statutory requirements. Certificates of insurance evidencing
such coverage shall be furnished promptly upon the request of Landlord at any
time during the term of the sublease. Tenant understands and acknowledges that
Landlord shall not be required in any manner to insure Tenant's assets and
employees and Tenant shall obtain any and all such insurance as Tenant
reasonably deems necessary. Landlord and Lessor are both to be named as an
"Additional Insured" in all of the foregoing policies.
16. MISCELLANEOUS
16.1 It is the intent of Landlord and Tenant that the rents payable under
this sublease shall be absolutely equivalent to all sums chargeable to Landlord
so that Landlord shall incur no cost or expense relating to the Premises during
the term of this sublease that is not otherwise chargeable to Tenant hereunder.
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16.2 Tenant shall pay to Landlord, as additional rent, all attorneys' fees
and disbursements, court costs (if any) and expenses, paid or incurred by
Landlord in connection with (i) any action, proceeding or arbitration arising
out of Tenant's failure to pay any item of rent or to pay, observe or perform
any obligation, and (ii) any failure by Tenant to pay any item of rent or to
pay, observe or perform any obligation, irrespective of whether any formal legal
action or proceeding is ever instituted against Tenant arising out of such
failure.
16.3 This sublease contains and embraces the entire agreement between the
parties hereto, and neither it nor any part of it may be changed, altered,
modified, limited, terminated, or extended orally or by any writing unless such
writing is signed by the party to be charged, or its legal representative,
successor or assignee. All negotiations, considerations, representations and
understandings between Landlord and Tenant are hereby merged into this lease. No
change, modification, discharge or abandonment of this lease shall be valid or
effective unless set forth in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
16.4 All sums payable by Tenant pursuant to this sublease, regardless of
the purpose, regardless of origination and regardless how characterized, shall
be deemed due and payable as additional rent and any default in payment thereof
shall constitute a default in the payment of rent. Tenant's obligation to pay
all rents shall survive any termination or cancellation of this lease with
respect to any item of rent due on any date or attributable to any period prior
to such termination or cancellation, even though not yet billed to Tenant.
16.5 Tenant may not record this sublease without Landlord's prior written
consent.
16.6 In addition to all other remedies available to Landlord under this
sublease or at law for Tenant's failure to pay, observe or perform any
obligation under this sublease, Landlord may on 5 days notice to Tenant, or
after such greater time period as may be expressly granted in this lease with
respect to a particular obligation, pay, observe or perform such obligation on
Tenant's behalf and expense. Whenever Landlord pays, observes or performs any
obligation on behalf of Tenant or in consequence of any default by Tenant,
whether such action by Landlord be pursuant to this Section 16.6 or pursuant to
any other provision of this lease which grants a more specific right of action
to Landlord, the cost
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thereof, plus twenty (20%) percent of such cost to cover Landlord's time and
administrative services (which amount Tenant acknowledges to be fair and
reasonable), shall be paid or reimbursed to Landlord within such time period as
may be expressly provided under such provision, and if no time period is
provided, then within 5 days after demand.
IN WITNESS WHEREOF, the parties have hereunto affixed their hands and
seals the day and year first above written.
In the Presence Of: Manchester Technologies, Inc.
BY:
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Xxxx Xxxxxxx, Vice President
ePlus Technology, Inc.
BY:
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Xxxx Xxxxxxxxx,
SeniorVice President
